Professional Documents
Culture Documents
Domestic application
Ratification the formal act by which a state confirms and accepts the
provisions of a treaty concluded by its representatives (the executive branch,
president through alter ego or qualified political agency), the ratification of a
treaty is an executive act through the President, ratification of the executive
alone is not sufficient as the 1987 Constitution requires that the senate shall
concur with the same with at least 2/3 votes of all the members. This is an
illustration of the principle of checks and balances. Without ratification of the
treaty or covenant, the same cannot be considered as a law, as a treaty or
covenant is only considered as a law if it is ratified by the state, without which
the treaty is without force and effect.
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Enforcement of IHRL against individual General Rule: the individual will be subjected
to penal and criminal laws.
Direct liability can now be imposed to an individual under the Rome Statute in the ff:
o
Court actions limited to international courts i.e. International Court of Justice and the
International Criminal Court
o
IHRC can entertain communication for human rights violations, can make a
finding of human rights violations but it cannot impose sanctions
Monitoring Systems - These are established precisely to monitor a states compliance with
its treaty obligations under a particular IHRL. Pacta Sunt Servanda
Kinds of monitoring systems
1. Charter based monitoring systems or mechanisms provided by the United
Nations Charter or through its specialized agencies.
a. 1503 Procedure this is applied in the absence of a treaty based monitoring
system. Said procedure provided the process for the acceptance of the UN of
complaints or communications for human rights violations. Process: filed with the
Human Rights Council, governed by the Principal Rule Making Body of the UN,
the human rights council can entertain any human rights violations even those
that are not defined by treaties or conventions (The Human Rights Committee of
the ICCPR is limited to the violations of the provisions the ICCPR).
i. First rule prior exhaustion of local remedies
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ii. Second rule confidentiality, everything filed under this procedure is
considered as confidential. Rule of Sub judiceism a party may not
disclose any information about a human rights violation to the media.
b. State Reports, Country Reports, Human Rights Practices reports a
state is mandated to give reports to the UN with its compliance and the overall
status of human rights within its territory (at least once every four years).
c. Special Rapporteurs considered as envoys, directly sent by the UN with a
principal function of investigating human rights violations. Endowed with
diplomatic immunity, not within the jurisdiction of a particular state to enable
him to perform his duties independently and without any pressure from any
government or state. They also possess diplomatic visas which enables them to
enter any country without any restriction.
d. Non-government institutions and National Human Rights Institutions
e. Universal Periodic review once every four years, a state is mandated to
make a report of its human rights conditions. Troika System a method of peer
review of state reports, 3 states will review the report of the state concerning the
human rights conditions within that state. The reviewing states shall give
comments and suggestions about the state reports of one state. This system is
almost inutile as states tend to be more diplomatic towards state relationships.
United Nations
Purposes:
Promote respect for human rights and fundamental freedoms
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promote or protect human rights. Military intervention is always the last resort for
enforcement of human rights, an attempt must be first made to peacefully order a
state to stop Human Rights violations, e.g.
3. Economic and Social Council manages second generation of Human Rights under
the ICESCR.
4. International Court of Justice may take cognizance of certain human rights
violations of a state, however the parties must be states themselves. An individual may
not directly file a complaint to the ICJ but must be represented by his own state.
5. UNESCO (United Nations Scientific Cultural Office) protects second and third
generation of human rights, e.g. cultural rights are considered as second and third
generation of human rights.
6. International Labor Organization mandated to provide uniform labor standards in
the world. 8 hour work day is mandated by this organization.
7. Food and agricultural organization of the UN adequate standard of living is a
human rights, its purpose is to sustain agriculture in states in order to avoid world
hunger. Promotes agricultural development and food stability.
8. World Health Organization the right to health is a human right.
9. UNICEF focuses on childrens rights.
10. UN development Program specialized body whose purpose is to alleviate poverty
among third worlds.
11. International Monetary Fund and World Trade Organization provides monetary
support for developing countries. Created after World War 2 to help the recovery of war
devastated countries. Facilitates economic growth (allegedly).
International Humanitarian Law or the Law of Armed Conflict or the Law of War no other
event in world history that is considered as a major violation of human rights is war itself,
thus this law is pertinent to the protection of Human Rights. After World War 2, laws regarding
war was systematized to protect the rights of civilians and non-participants of war.
Humans should act like Humans even in times of War Atty. Bonifacio
Battle of Sulferino (1859) war between Italy, Sardinia and Austria, in a span of 2 hours
60,000 were killed or injured. Those who died and injured were merely lying in the battlefield
waiting to die. Henry Dunant, a Swiss Businessman, thought that the soldiers should be taken
care of by a neutral body and should be spared from battle, he was also the founder of the
International Committee of the Red Cross, Red Crescent for Muslim Countries, these are
neutral organizations which provides aid for injured war combatants and therefrom the IHL
was conceived.
Main Purposes of IHL
1. Protects those that are not, or no longer participating in the hostilities, particularly
civilians.
2. Restricts the use of weapons and methods of warfare. E.g. personnel landmines
3. Aims to protect human dignity and reduce human suffering in times of war.
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i. The first Geneva Convention pertains to wounded and sick combatants,
the IHL mandates that the aforementioned should receive adequate care
and cannot be murdered nor tortured. Captured combatants should not be
the subject of experiments
ii. The Second Geneva Convention pertains to wounded and sick combatants
at sea, the conditions applicable to land combatants are also applicable to
sea combatants. Combatants that need assistance at sea must be given
so by the party who discovered them.
iii. The Third Geneva Convention pertains to the protection of Prisoners of
War, Adequate food, shelter, clothing and no torture
iv. The Fourth Geneva Convention pertains to the protection of civilians.
2. Other treaties which restrict means and methods of warfare
3. International customary law long and established way of doing things which are
believed to be right and good
Universal Recognition of the Geneva Convention all states are considered as parties to
the Geneva conventions, and are bound to it, even those that did not participate or sign the
Geneva conventions. The principle is an exception to the rule of voluntary consent of states in
the implementation of international treaties or conventions.
Armed Conflict resort to armed force between states or protracted armed violence
between governmental authorities and organized armed groups or between such groups
within a state.
Three Scenarios of Armed Conflict
1. Armed Conflict between two or more states
2. Armed Conflict between Governmental Authorities and organized armed groups
3. Armed Conflict between organized armed groups in a particular state/territory
The Philippines considers the PIFF, MNLF, and Abu Sayaff as mere terrorist groups or bandits.
IHL does not apply to other situations of violence like riots or other acts of lawlessness.
Civilian any person who is not a combatant, in case of doubt, a person should always be
considered as a civilian. If a civilian will take a direct part in the hostilities then he shall be
considered as a combatant.
Guerillas and Mercenaries are considered as combatants.
Specific Rules of IHL:
Attacks must be limited to combatants and military targets
o
Military and civilian medical personnel and facilities must be respected and
protected
o
The aforementioned must be granted all available help for them to conduct their
activities
The Red Cross and the Red Crescent symbolizes all medical personnel, the use of
these emblems falsely is prohibited
Medical units and transports shall not be used for military purposes
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4 International Crimes under International Criminal Law
1. Genocide the deliberate killing of a large group of people, especially those of a particular ethnic
group or nation
2. Crimes versus Humanity any act that will degrade humanity, particularly if done
within war or armed conflict
3. War Crimes any violation of the IHL
4. Crimes of Aggression taking part in an aggressive war is prohibited by public
international law, only defensive war is allowed by public international law.
Rome Statute the international treaty establishing the international criminal
court. The international criminal court has the jurisdiction over the aforementioned
international crimes. Adapted in July 17, 1998 by the international community and entered
into force in July 1, 2002.
Requirements before a state can be bound by the Rome Statute:
1) the state should be a signatory to the treaty; and
2) the treaty should have been formally ratified by the state.
-The Philippines signed the Rome Statute on December 28, 2000, and ratified the
same in 2011.
-Pres. Aquino signed the instrument of ratification on May 6 2011, and the
-Philippine Senate concurred in August 24, 2011,
-the treaty entered into force as far as the Philippines is concerned on November 1,
2011.
- The Philippines is the 117th country to join the Rome Statute system.
General Principles of Criminal Law Adopted by the International Criminal Court
International Crimes under the Jurisdiction of the International Criminal court does not
Prescribe or the statute of limitations does not apply
Presumption of Innocence
Mens Rea, general criminal intent, should at least be proven, once proven it is sufficient
(Actus Rea specific criminal intent)
If the alleged act constituting the international crime is vague, the void for
vagueness rule is applied
Trial in absentia is not allowed, in all proceedings the presence of the accused is
required.
It cannot impose the death penalty, it can only impose a penalty of imprisonment
not exceeding 30 years.
It is the court of last resort, the Rome Statute adheres to the Principle of
Complementarity, primacy and priority is given to national jurisdiction,
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national jurisdiction will be respected provided that national jurisdiction was
invoked in order to truly punish the accused, if it is invoked for shielding against
criminal liability or if the trial was a mere sham, the international criminal court shall
take jurisdiction over the case
Pre-trial Division
Trial Division
Rule on Territorial State the act constituting the international crime must have been
committed within the territory of a state who is a signatory to the Rome statute
Nationality State Jurisdiction Principle the Accused the international crime is actually
a national or a citizen of a State who is a signatory to the Rome Statute
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Possible Bar question: Enumerate at least 5 international treaties or conventions dealing with
terrorism.
Treaties and Conventions regarding Terrorism
1. International Convention for the Suppression of the Financing of Terrorism
2. International Convention for the Suppression of Terrorist Bodies
3. Hague Convention for the Suppression of Hijackings.
4. Tokyo Convention on the Safety of Aviation
5. International Convention for the Suppression of unlawful acts against the safety of
maritime navigations
6. Hostages Convention
7. International Convention of the prevention and punishments of crimes against
internationally protected persons.
8. The Montreal Convention on air safety.
9. The Beijing Convention and Protocol on Air Safety tackled the issue of commercial
planes used as weapons.
Terrorist Attacks may be the subject of enforcement actions of the UN securitycouncil, however the UNSC may only intervene if the state cannot deal with the
terrorist attacks themselves.