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HUMAN RIGHTS NOTES

Pestao v. The Philippines


The case before the UN Human Rights Committee
against the Philippine Government for violation of
the International Covenant on Civil and Political
Rights
In January 11, 2012, the new Ombudsman (former
Supreme Court justice) Conchita Carpio-Morales
filed murder charges against 10 officials and
officers of the Philippine Navy in connection with
the death of [Phillip] Pestao. Morales [reversed]
the earlier dismissal of [her predecessor] saying
there is sufficient evidence to file charges against
Captain Ricardo Ordoez, Cdr. Reynaldo Lopez,
HM2 Welmenio Aquino, LCdr. Luidegar Casis, LCdr.
Alfrederick Alba, MR2 Sandy Miranda, LCdr. Joselito
Colico, LCdr. Ruben Roque, Petty Officer 1st Class
Carlito Amoroso, and Petty Officer 2nd Class Mil
Leonor Igcasan.
In honor of Phillip Pestaos courage and his
parents determination, we revisit the findings by
the UN Human Rights Committee (UNHRC) in 2010
upon a complaint filed in April 24, 2007 by Phillips
parents, Spouses Felipe and Evelyn Pestao,
against the Philippine government, in relation to
their Phillips alleged murder on September 27,
1995. The complaint filed by Spouses Pestao was
for violation by the Philippines of their sons rights
under article 6[2], article 2, paragraph 3[3], article
9, paragraph 1[4], and article 17, paragraph
1[5] of the International Covenant on Civil and
Political Rights [ICCPR].
The facts as presented by Spouses Pestao
before the UNHRC
Phillip Pestao was an Officer of the Philippine
Navy serving as cargo officer of the ship BRP
Bacolod City during its Mindanao voyage in
September 1995. On or about 25 September 1995,
the ships Commander permitted the loading of
more than 14,000 board feet of logs onto the BRP
Bacolod
City,
without
proper
papers
or
authorization. Phillip vehemently objected to the
loading of such unauthorized cargoes.
On 26 September 1995, the Phillips parents
received an anonymous phone call, warning them
that their sons life was in danger. On the same
day, they collected their son from the Navy Station
at Sangley Point, Cavite City, about 100 kilometers
from Manila, and took him to their house in Loyola
Heights, Quezon City. That night, Phillip disclosed
to his father that the BRP Bacolod City ship was
dirty, and that the illegal cargo included 20
sacks of shabu (formed from Methamphetamine),

worth approximately 1 billion pesos in the black


market. The father tried to dissuade his son from
pursuing the case, as he was concerned that any
action taken by his son may jeopardize his own
business, as the Philippine Navys biggest ship
repair contractor. But Phillip was determined to
take the matter forward.
On 27 September 1995, at about 4:00 am, Phillip
left the family home and proceeded to board the
BRP Bacolod City. At about 11:00 am on the same
day, his parents received a call from the Philippine
Navy, asking them to proceed to the Navy
Headquarters in Manila, because their son Phillip
had an accident.
When his parents reached the Navy Headquarters,
they were prevented from entering their sons
suite, where he lay dead. Instead, they were
immediately asked to sign an authorization for an
autopsy to be conducted on their sons body, to
which they consented after having viewed their
sons body. The Navy thereafter exhibited an
alleged suicide weapon and an alleged suicide
note, in support of their position that Phillip had
committed suicide.
Significantly, on 30 September 1995, Phillip was
buried in the National Cemetery for military
personnel and given full military honors, despite a
Navy policy stating that suicide victims should not
benefit from such treatment.
After conducting their own investigations, the
Criminal Investigation Division of the Philippine
National Police and the National Bureau of
Investigation of the Department of Justice
corroborated the Navys position, concluding that
Phillip had committed suicide.
Also notable is the fact that in the course of the
same month, after conducting its own inquiry, and
despite the official Navy and police conclusions,
Phillips insurance company paid the full amount of
his coverage to his beneficiaries for his
death. Apparently,
the
insurance
company
believed Phillip did not commit suicide.
In October 1995, the radio operator of the BRP
Bacolod City during its Mindanao voyage,
and close friend of Phillip, drowned in high seas
under highly suspicious circumstances during an
alleged mission where all his companions survived.
The victims body was never found.
In November 1995, another member of the Navy,
who was perceived as Phillips ally, and who was
also aboard the BRP Bacolod City in September
1995, mysteriously disappeared after being
ordered to report to the Navy Headquarters in
HR Notes by Terence Valdehueza

Manila. This person is still missing and is believed


to be dead.

City. The four killings remain uninvestigated, and


unaccounted for.

On 15 November 1995, two Senators filed a


Senate Resolution, directing the appropriate
Senate Committees to conduct an inquiry into the
circumstances surrounding Phillips death.

Spouses Pestao filed complaints against the


Commanding Officer and certain crew members of
the BRP Bacolod City: (1) in September 1995 with
the Philippine Navy; (2) in September 1995 with
the Philippine National Police and the National
Bureau of Investigation of the Department of
Justice. Both proceedings led to the conclusion
that Phillip had committed suicide; (3) in January
1998 with the Philippine Senate (Committees on
Justice-Human
Rights
and
Defense-National
Security); (4) in March 2000 with Ombudsman
Aniano Desierto; (5) and in October 2005 with a
new Ombudsman (Simeon Marcelo), who was
replaced thereafter. No action was taken on the
case by the new Ombudsman, Merceditas
Gutierrez, since she took office in December 2005.

In December 1995, the State partys Navy Flag


Officer in Command, a Vice-Admiral, invited
Phillips parents to dinner, and requested that they
refrain from pursuing their sons case against the
Navy. Two weeks later, the Navy Flag Officer in
Command sought to see Spouses Pestao again,
and presented Mr. Pestao with his companys
contract with the Navy, worth a hundred-million
pesos, together with an affidavit of waiver and
desistance to pursue his suit against the
Navy. The spouses decided that they would not
abandon their sons claim. One week after this
information was relayed to the Navy Flag Officer in
Command, the four Navy ships being repaired by
Mr. Pestaos company all mysteriously sank, and
his companys offices in the Navy Station in
Sangley Point were ransacked and looted.
It is also reported that Mr. Pestaos nephew, the
companys property custodian, was shot dead
during the same period.
On 2 January 1996, Spouses Pestao received a
leaked copy of an intelligence report of the Armed
Forces, which stated that the BRP Bacolod City
carried 1 billion pesos worth of shabu in 20 sacks
of rice during its September 1995 trip. The report
also indicated that this shipment had been
escorted by a Security Officer of the Navy Flag
Officer in Command, and that upon discovering the
illegal cargo, Phillip had confronted his superior,
and was killed afterwards, to prevent him from
revealing the criminal activities taking place on
board the ship. This confidential report also
identified the chief security officer of the Navy Flag
Officer in Command as the most likely perpetrator
of the crime.
In January 1996, another member of the Philippine
Navy mysteriously died in a military hospital, after
a strange and quick deterioration of his condition.
This person was suspected of involvement in the
shabu operation in the BRP Bacolod City, as well
as in the death of Phillip, and had engaged in
discreet talks with Spouses Pestao before theirs
sons death. He was believed to be ready to
reveal important information before he died. The
death of this member of the Navy brings to four
the number of persons killed in connection with
the September 1995 voyage of the BRP Bacolod

After filing their complaint with the Office of the


Ombudsman on 27 October 2005, in December
2005, the Ombudsman found merit in the spouses
petition, reopened the case, and requested from
the Commanding Officer of the BRP Bacolod City in
September 1995, and from eight senior and junior
officers and enlisted personnel to submit counteraffidavits
as
respondents,
within
ten
days. However, only one week after reopening the
spouses case, the Ombudsman stepped down,
and was replaced. Since then, the case was left
uninvestigated in the Office of the Ombudsman for
military affairs.
On 25 January 1998, after eight Committee
hearings, a visual inspection of Phillips stateroom
in the ship, and relying, inter alia, on expert
evidence and witness testimonies, two Senate
Committees issued a Joint report on the Pestao
case, which contained the following findings: (i)
Phillip did not kill himself on the BRP Bacolod City
on 27 September 1995; (ii) he was shot in one
place in the vessel different from the one where
his body was found; (iii) after his death, his body
was moved and laid on the bed where it was
found; (iv) he must have been shot on board the
BRP Bacolod City before the vessel reached the
Navy Headquarters on 27 September 1995; (v)
there was a deliberate attempt to make it appear
that Phillip killed himself inside his stateroom; and
(vi) such an attempt was so deliberate and
elaborate that one person could not have
accomplished
it
by
himself.
The
Senate
Committees also recommended, inter alia, that an
independent investigation be conducted on the
circumstances surrounding Phillips murder, so as
to bring the perpetrators to justice, and identify
HR Notes by Terence Valdehueza

the other individuals who participated in the


deliberate attempt to portray a suicide.
On 28 March 2000, the Ombudsman (Fact-finding
and Intelligence Bureau) in charge of the file
dismissed the case without prejudice, concluding
in its evaluation report that the conduct of further
investigation in order to find out the identity of the
perpetrator and his accomplices, if any, will only
be a waste of time, considering that the physical
evidence has already been tampered with, not to
mention the lapse of time.
UNHRCs consideration of the merits of the
case
Violation of Article 6 of the ICCPR
As regards the alleged violation by the Philippines
of Article 6 of the ICCPR, the HRC stated referring
to the ICCPR as the Covenant - that it:
Recalls that the right to life is the supreme right,
from which no derogation is permitted. It further
recalls that States parties have a positive
obligation to ensure the protection of individuals
against violations of Covenant rights, which may
be committed not only by its agents, but also by
private persons or entities. The Committee also
refers to its jurisprudence, according to which both
a criminal investigation and consequential
prosecution are necessary remedies for violations
of human rights such as those protected by article
6. A violation of the Covenant may therefore arise
as a result of a State partys failure to take
appropriate measures to punish, investigate or
redress such a violation.
7.2 Despite the initial findings of the [Philippine]
National Police and Department of Justice, which
both concluded in October 1995 that the victim
had committed suicide, it now appears undisputed
that the death of [Phillip Pestao] was a violent
one, resulting from a homicide. The [Philippine
Authorities] submissions of 18 January and 8 May
2008, contending that [Spouses Pestao]s case
was an ordinary criminal case, at least concede
this fact
The UNHRC took note of the following:
1. Conclusions of the substantial Senate
report of 25 January 1998, which
established that the victim was shot on
board the BRP Bacolod City on 27
September 1995, that there had been a
deliberate attempt to make it appear that
[he]
killed
himself,
and
which
recommended
that
an
independent
investigation be conducted.

2. That an administrative and criminal action


filed by [Spouses Pestao] is currently
pending
against
members
of
the
[Philippine]s Navy, i.e. of an organ of the
[state].
3. [Spouses Pestao]s assertions that two
other members of the [Philippine] Navy
who were close to the victim, as well as
another Navy Ensign who allegedly
participated in the illicit boarding of drugs
on the BRP Bacolod City, and who had
engaged in communications with [Spouses
Pestao] about their sons death, all died or
disappeared in mysterious circumstances
between October 1995 and January 1996.
4. [Spouses Pestao]s report of having been
threatened by a Vice-Admiral of the
[Philippine] Navy to lose their business with
the Navy should they persist in their
complaint. As they pursued their action,
[Spouses Pestao] reportedly lost their
business, and their nephew, the companys
property custodian, was killed.
5. In the absence of rebuttal statements, or
any comments from the [Philippine
Authorities] on these facts, the Committee
gives due weight to the [Spouses
Pestao]s contentions, which raise a
strong presumption of direct participation
of the [Philippine Government] in the
violation of their sons right to life.
The UNHRC then considered the following:
1.
That the killing of [Spouses Pestao]s son
on board a ship of the [Philippine] Navy warranted
a speedy, independent investigation on the
possible involvement of the Navy in the crime.
To simply state that there was no direct
participation of the State party in the violation of
the victims right to life falls short of fulfilling such
positive obligation under the Covenant. While
close to fifteen years elapsed since the death of
the victim, [Spouses Pestao] are still ignorant of
the circumstances surrounding their sons death,
and the [Philippine] authorities have yet to initiate
an independent investigation. In its submission of
8 May 2008, the [Philippine Authorities] referred to
an Order of 10 August 2007 of the Office of the
Ombudsman, which deemed it necessary to
conduct further proceedings in the case. The
Committee is not aware, however, of any
preliminary proceedings undertaken by that Office
since an action was filed de novo by [Spouses
Pestao] in October 2005. Since that date, no
suspect was prosecuted, or tried, let alone
convicted, and [Spouses Pestao] were not
compensated for the tragic loss of their son.
HR Notes by Terence Valdehueza

2.
That the death of [Phillip Pestao] is directly
attributable to the [Philippine Authorities]. When a
person dies in circumstances that might involve a
violation of the right to life, the State party is
bound to conduct an investigation and ensure that
there is no impunity. The [Philippine Authorities]
must accordingly be held to be in breach of its
obligation, under article 6, read in conjunction with
article 2, paragraph 3, to properly investigate the
death of [Phillip Pestao], prosecute the
perpetrators, and ensure redress.
Violation of Article 2, paragraph 3(a) of the ICCPR
The UNHRC states that Under article 2, paragraph
3(a), of the Covenant, the [Philippines] is under an
obligation to provide [Spouses Pestao] with an
effective remedy in the form, inter alia, of an
impartial, effective and timely investigation into
the circumstances of their sons death, prosecution
of perpetrators, and adequate compensation. The
[Philippines] is also under an obligation to prevent
similar violations in the future.
In ending, the UNHRC relayed its wish to receive
from the [Philippines], within 180 days, information
about the measures taken to give effect to the
Committee's Views.
We are unaware if the UNHRCs wish was granted.
Violation of Article 9, paragraph 1 of the ICCPR
In claiming violation of article 9 paragraph 1of the
Covenant, the UNHRC stated that [Spouses
Pestao] claim that they received an anonymous
call, informing them that their sons life was in
danger, the day before he was found dead.
However, there is no evidence that [Spouses
Pestao] reported these threats against their son
to [Philippine] authorities, and if so, that the
[Philippine Authorities] failed to take appropriate
action for this protection. Nor is there any
conclusive
evidence
that
the
[Philippine
Authorities were] involved in threatening [Phillip
Pestao]. In the absence of any further arguments
put forward by [Spouses Pestao] on this issue,
the Committee [considered] that these claims are
not sufficiently substantiated for the purposes of
admissibility and [therefore] inadmissible ...
Violation of Article 17, paragraph 1 of the ICCPR
The UNHRC ruled similarly regarding the alleged
violation of Article 17 paragraph 1 of the Covenant
since [Spouses Pestao] claim that the [Philippine
Authorities] attempt to make it appear that [Phillip
Pestao] committed suicide, is to be construed as
an unlawful attack against his honor. [The
Committee considered] that this claim [was not]

sufficiently substantiated for the purposes of


admissibility, and is inadmissible
It is ironic and deeply sad that an international
body had to deliberate upon the merits of what is
clearly a local criminal affair. Justice delayed is
justice denied they say. Nevertheless, the filing of
the cases, while long overdue, is still a welcome
development. We can only hope that the
Philippine Government now stops its stonewalling,
cleans its ranks, and help in any ones sincere
pursuit of justice. A much cleaner government
would have prevented the early and unjustified
death of Phillip Pestao. A more just government
would now support Felipe and Evelyn Pestao any
way they can and prevent the grief of families like
theirs in the future.
Obergefell v. Hodges
Facts: Groups of same-sex couples sued their
relevant state agencies in Ohio, Michigan,
Kentucky, and Tennessee to challenge the
constitutionality of those states bans on same-sex
marriage or refusal to recognize legal same-sex
marriages that occurred in jurisdictions that
provided for such marriages. The plaintiffs in each
case argued that the states statutes violated the
Equal Protection Clause and Due Process Clause of
the Fourteenth Amendment, and one group of
plaintiffs also brought claims under the Civil Rights
Act. In all the cases, the trial court found in favor
of the plaintiffs. The U.S. Court of Appeals for the
Sixth Circuit reversed and held that the states
bans on same-sex marriage and refusal to
recognize marriages performed in other states did
not violate the couples Fourteenth Amendment
rights to equal protection and due process.
Issues:
(1) Does the Fourteenth Amendment require a
state to license a marriage between two people of
the same sex?
(2) Does the Fourteenth Amendment require a
state to recognize a marriage between two people
of the same sex that was legally licensed and
performed in another state?
Conclusion
Decision: 5 votes for Obergefell, 4 vote(s) against
Legal
provision: Equal
Protection
14th
Amendment
Yes, yes. Justice Anthony M. Kennedy delivered the
opinion for the 5-4 majority. The Court held that
the Due Process Clause of the Fourteenth
Amendment guarantees the right to marry as one
of the fundamental liberties it protects, and that
HR Notes by Terence Valdehueza

analysis applies to same-sex couples in the same


manner as it does to opposite-sex couples. Judicial
precedent has held that the right to marry is a
fundamental liberty because it is inherent to the
concept of individual autonomy, it protects the
most intimate association between two people, it
safeguards children and families by according
legal recognition to building a home and raising
children, and it has historically been recognized as
the keystone of social order. Because there are no
differences between a same-sex union and an
opposite-sex union with respect to these
principles, the exclusion of same-sex couples from
the right to marry violates the Due Process Clause
of the Fourteenth Amendment. The Equal
Protection Clause of the Fourteenth Amendment
also guarantees the right of same-sex couples to
marry as the denial of that right would deny samesex couples equal protection under the law.
Marriage rights have traditionally been addressed
through both parts of the Fourteenth Amendment,
and the same interrelated principles of liberty and
equality apply with equal force to these cases;
therefore,
the
Constitution
protects
the
fundamental right of same-sex couples to marry.
The Court also held that the First Amendment
protects the rights of religious organizations to
adhere to their principles, but it does not allow
states to deny same-sex couples the right to marry
on the same terms as those for opposite-sex
couples.
Chief Justice John G. Roberts, Jr. wrote a dissent in
which he argued that, while same-sex marriage
might be good and fair policy, the Constitution
does not address it, and therefore it is beyond the
purview of the Court to decide whether states
have to recognize or license such unions. Instead,
this issue should be decided by individual state
legislatures based on the will of their electorates.
The Constitution and judicial precedent clearly
protect a right to marry and require states to apply
laws regarding marriage equally, but the Court
cannot overstep its bounds and engage in judicial
policymaking. The precedents regarding the right
to marry only strike down unconstitutional
limitations on marriage as it has been traditionally
defined and government intrusions, and therefore
there is no precedential support for making a state
alter its definition of marriage. Chief Justice
Roberts also argued that the majority opinion
relied on an overly expansive reading of the Due
Process and Equal Protection Clauses of the
Fourteenth Amendment without engaging with the
judicial analysis traditionally applied to such claims
and while disregarding the proper role of the
courts in the democratic process. Justices Antonin
Scalia and Clarence Thomas joined in the dissent.

In his separate dissent, Justice Scalia wrote that


the majority opinion overstepped the bounds of
the Courts authority both by exercising the
legislative, rather than judicial, power and by
doing so in a realm that the Constitution reserves
for the states. Justice Scalia argued that the
question of whether same-sex marriage should be
recognized is one for the state legislatures, and
that for the issue to be decided by unelected
judges goes against one of the most basic
precepts of the Constitution: that political change
should occur through the votes of elected
representatives. In taking on this policymaking
role, the majority opinion departed from
established Fourteenth Amendment jurisprudence
to create a right where none exists in the
Constitution. Justice Thomas joined in the dissent.
Justice Thomas also wrote a separate dissent in
which he argued that the majority opinion
stretched the doctrine of substantive due process
rights found in the Fourteenth Amendment too far
and in doing so distorted the democratic process
by taking power from the legislature and putting it
in the hands of the judiciary. Additionally, the
legislative history of the Due Process Clause in
both the Fifth and Fourteenth Amendments
indicates that they were meant to protect people
from physical restraint and from government
intervention, but they do not grant them rights to
government entitlements. Justice Thomas also
argued that the majority opinion impermissibly
infringed on religious freedom by legislating from
the bench rather than allowing the state
legislature to determine how best to address the
competing rights and interests at stake. Justice
Scalia joined in the dissent. In his separate dissent,
Justice Samuel A. Alito, Jr. wrote that the
Constitution does not address the right of samesex couples to marry, and therefore the issue is
reserved to the states to decide whether to depart
from the traditional definition of marriage. By
allowing a majority of the Court to create a new
right, the majority opinion dangerously strayed
from the democratic process and greatly expanded
the power of the judiciary beyond what the
Constitution allows. Justice Scalia and Justice
Thomas joined in the dissent.

CHARACTERISTICS OF HUMAN RIGHTS


1. Inherent Human Rights are inherent because
they are not granted by any person or authority.
2. Fundamental Human Rights are fundamental
rights because without them, the life and dignity of
man will be meaningless.
HR Notes by Terence Valdehueza

3. Inalienable Human Rights are inalienable


because:

organization of elections, which also entails high


costs.

a. They cannot be rightfully taken away from a free


individual.

On the other hand, most social rights contain


elements that require the state to abstain from
interfering with the individuals exercise of the
right. As several commentators note, the right to
food includes the right for everyone to procure
their own food supply without interference; the
right to housing implies the right not to be a victim
of forced eviction; the right to work encompasses
the individuals right to choose his/her own work
and also requires the state not to hinder a person
from working and to abstain from measures that
would increase unemployment; the right to
education implies the freedom to establish and
direct educational establishments; and the right to
the highest attainable standard of health implies
the obligation not to interfere with the provision of
health care.

b. They cannot be given away or be forfeited.


4. Imprescriptible Human Rights do not
prescribe and cannot be lost even if man fails to
use or assert them, even by a long passage of
time.
5. Indivisible Human Rights are not capable of
being divided. They cannot be denied even when
other rights have already been enjoyed.
6. Universal Human Rights are universal in
application and they apply irrespective of ones
origin, status, or condition or place where one
lives. Human rights are enforceable without
national border.
7. Interdependent
Human
Rights
are
interdependent because the fulfillment or exercise
of one cannot be had without the realization of the
other.
CLASSIFICATION OF HUMAN RIGHTS
1. CLASSIC AND SOCIAL RIGHTS
One classification used is the division between
classic and social rights. Classic rights are
often seen to require the non-intervention of the
state (negative obligation), and social rights as
requiring active intervention on the part of the
state (positive obligations). In other words, classic
rights entail an obligation for the state to refrain
from certain actions, while social rights oblige it to
provide certain guarantees. Lawyers often
describe classic rights in terms of a duty to
achieve a given result (obligation of result) and
social rights in terms of a duty to provide the
means (obligations of conduct). The evolution of
international law, however, has led to this
distinction between classic and social rights
becoming increasingly awkward. Classic rights
such as civil and political rights often require
considerable investment by the state. The state
does not merely have the obligation to respect
these rights, but must also guarantee that people
can effectively enjoy them. Hence, the right to a
fair trial, for instance, requires well-trained judges,
prosecutors, lawyers and police officers, as well as
administrative support. Another example is the

In sum, the differentiation of classic rights from


social rights does not reflect the nature of the
obligations under each set of rights.
2. CIVIL, POLITICAL, ECONOMIC, SOCIAL AND
CULTURAL RIGHTS
Civil rights
The term civil rights is often used with reference
to the rights set out in the first eighteen articles of
the UDHR, almost all of which are also set out as
binding treaty norms in the ICCPR. From this group,
a further set of physical integrity rights has been
identified, which concern the right to life, liberty
and security of the person, and which offer
protection from physical violence against the
person, torture and inhuman treatment, arbitrary
arrest, detention, exile, slavery and servitude,
interference with ones privacy and right of
ownership, restriction of ones freedom of
movement, and the freedom of thought,
conscience and religion. The difference between
basic rights (see below) and physical integrity
rights lies in the fact that the former include
economic and social rights, but do not include
rights such as protection of privacy and ownership.
Although not strictly an integrity right, the right to
equal treatment and protection in law certainly
qualifies as a civil right. Moreover, this right plays
an essential role in the realization of economic,
social and cultural rights.
Another group of civil rights is referred to under
the collective term due process rights. These
pertain, among other things, to the right to a
public hearing by an independent and impartial
tribunal, the presumption of innocence, the ne
HR Notes by Terence Valdehueza

bis in idem principle (freedom from double


jeopardy) and legal assistance (see, e.g., Articles
9, 10, 14 and 15 ICCPR).
Political rights
In general, political rights are those set out in
Articles 19 to 21 UDHR and also codified in the
ICCPR. They include freedom of expression,
freedom of association and assembly, the right to
take part in the government of ones country and
the right to vote and stand for election at genuine
periodic elections held by secret ballot (see
Articles 18, 19, 21, 22 and 25 ICCPR).
Economic and social rights
The economic and social rights are listed in
Articles 22 to 26 UDHR, and further developed and
set out as binding treaty norms in the ICESCR.
These rights provide the conditions necessary for
prosperity and wellbeing. Economic rights refer, for
example, to the right to property, the right to
work, which one freely chooses or accepts, the
right to a fair wage, a reasonable limitation of
working hours, and trade union rights. Social rights
are those rights necessary for an adequate
standard of living, including rights to health,
shelter, food, social care, and the right to
education (see Articles 6 to 14 ICESCR).
Cultural rights
The UDHR lists cultural rights in Articles 27 and 28:
the right to participate freely in the cultural life of
the community, the right to share in scientific
advancement and the right to the protection of the
moral and material interests resulting from any
scientific, literary or artistic production of which
one is the author (see also Article 15 ICESCR and
Article 27 ICCPR).
The alleged dichotomy between civil and
political rights, and economic, social and cultural
rights
Traditionally it has been argued that there are
fundamental differences between economic, social
and cultural rights, and civil and political rights.
These two categories of rights have been seen as
two different concepts and their differences have
been characterized as a dichotomy. According to
this view, civil and political rights are considered to
be expressed in very precise language, imposing
merely negative obligations which do not require
resources for their implementation, and which
therefore can be applied immediately. On the other
hand, economic, social and cultural rights are
considered to be expressed in vague terms,
imposing only positive obligations conditional on
the existence of resources and therefore involving
a progressive realization.

As a consequence of these alleged differences, it


has been argued that civil and political rights are
justiciable whereas economic, social and cultural
rights are not. In other words, this view holds that
only violations of civil and political rights can be
adjudicated by judicial or similar bodies, while
economic, social and cultural rights are by their
nature non-justiciable.
Over the years, economic, social and cultural
rights have been re-examined and their juridical
validity and applicability have been increasingly
stressed. During the last decade, we have
witnessed the development of a large and growing
body of case law of domestic courts concerning
economic, social and cultural rights. This case law,
at the national and international level, suggests a
potential role for creative and sensitive decisions
of judicial and quasi-judicial bodies with respect to
these rights.
Many international fora have elaborated on the
indivisibility and interdependency of human rights.
As stated in the 1993 Vienna Declaration and
Program of Action: All human rights are universal,
indivisible and interdependent and interrelated.
The international community must treat human
rights globally in a fair and equal manner, on the
same footing, and with the same emphasis. The
European Union (EU) and its member states have
also made it clear on numerous occasions that
they subscribe to the view that both categories of
human rights are of equal importance, in the sense
that an existence worthy of human dignity is only
possible if both civil and political rights and
economic, social and cultural rights are enjoyed. In
their Declaration of 21 July 1986, they affirmed
that the promotion of economic, social and
cultural rights as well as of civil and political rights
is of paramount importance for the full realization
of human dignity and for the attainment of the
legitimate aspirations of every individual.
The
so-called
Limburg
Principles
on
the
Implementation of the ICESCR also indicate that a
sharp distinction between civil and political rights
on the one hand and economic, social and cultural
rights on the other is not accurate. These
principles were drawn up in 1986 by a group of
independent experts, and followed in 1997 by the
Maastricht Guidelines on Violations of Economic,
Social and Cultural Rights. Together, these
documents provide a clear explanation of the
nature of the state party obligations under the
ICESCR. The same can be said of the 1990 General
Comment 3 of the UN Committee on Economic,
HR Notes by Terence Valdehueza

Social and Cultural Rights on the nature of states


parties obligations in relation to the ICESCR.

elementary, essential, core and fundamental


human rights are being used.

Fortunately, continuous declarations at the


international level on the indivisibility and
interdependency of all rights have finally been
codified by way of the recently adopted Optional
Protocol to the ICESCR. States parties to the
Optional Protocol will recognize the competence of
the Committee on Economic, Social and Cultural
Rights to receive and consider individual and
collective complaints alleging violations of
economic, social and cultural rights set forth in the
ICESCR. The Committee will also be empowered to
request interim measures to avoid possible
irreparable damage to the victims of the alleged
violations and, where it receives reliable
information indicating grave or systematic
violations, it shall conduct an inquiry which may
include a visit to the state party.

Another approach is to distinguish a number of


basic rights, which should be given absolute
priority in national and international policy. These
include all the rights which concern peoples
primary material and non-material needs. If these
are not provided, no human being can lead a
dignified existence. Basic rights include the right
to life, the right to a minimum level of security, the
inviolability of the person, freedom from slavery
and servitude, and freedom from torture, unlawful
deprivation of liberty, discrimination and other
acts which impinge on human dignity. They also
include freedom of thought, conscience and
religion, as well as the right to suitable nutrition,
clothing, shelter and medical care, and other
essentials crucial to physical and mental health.

The adoption of the Optional Protocol on the 60th


anniversary of the UDHR, on 10 December 2008,
represents an historic advance for human rights.
Firstly, economic, social and cultural rights historically demoted to an inferior status with
limited protection - are now finally on an equal
footing with civil and political rights. Secondly,
through an individual complaints procedure the
meaning and scope of these rights will become
more precise, facilitating efforts to respect and
guarantee their enjoyment. Thirdly, the existence
of a potential remedy at the international level
will provide an incentive to individuals and groups
to formulate some of their economic and social
claims in terms of rights. Finally, the possibility of
an adverse finding of the Committee on
Economic, Social and Cultural Rights will give
economic, social and cultural rights salience in
terms of the political concerns of governments;
which these rights largely lack at present.
3. FUNDAMENTAL AND BASIC RIGHTS
Fundamental rights are taken to mean such rights
as the right to life and the inviolability of the
person. Within the UN, extensive standards have
been developed which, particularly since the
1960s, have been laid down in numerous
conventions, declarations and resolutions, and
which bring already recognized rights and matters
of policy which affect human development into the
sphere of human rights. Concern that a broad
definition of human rights may lead to the notion
of violation of human rights losing some of its
significance has generated a need to distinguish a
separate group within the broad category of
human
rights.
Increasingly,
the
terms

Mention should also be made of so-called


participation rights; for instance, the right to
participate in public life through elections (which is
also a political right; see above) or to take part in
cultural life. These participation rights are
generally considered to belong to the category of
fundamental rights, being essential preconditions
for the protection of all kinds of basic human
rights.
4. OTHER CLASSIFICATIONS
Freedoms
Preconditions for a dignified human existence have
often been described in terms of freedoms (e.g.,
freedom of movement, freedom from torture and
freedom from arbitrary arrest). United States
President Franklin D. Roosevelt summarized these
preconditions in his famous Four Freedoms
Speech to the United States Congress on 26
January 1941:
Freedom of speech and expression;
Freedom of belief (the right of every person
to worship God in his own way);
Freedom
from
want
(economic
understandings which will secure to every
nation a healthy peace-time life for its
inhabitants); and
Freedom from fear (world-wide reduction of
armaments to such a point and in such a
thorough fashion that no nation would be
able to commit an act of physical aggression
against any neighbor).
Roosevelt implied that a dignified human existence
requires not only protection from oppression and
arbitrariness, but also access to the primary
necessities of life.
HR Notes by Terence Valdehueza

Civil liberties
The concept of civil liberties is commonly known,
particularly in the United States, where the
American
Civil
Liberties
Union
(a
nongovernmental organization) has been active since
the 1920s. Civil liberties refer primarily to those
human rights which are laid down in the United
States Constitution: freedom of religion, freedom
of the press, freedom of expression, freedom of
association and assembly, protection against
interference with ones privacy, protection against
torture, the right to a fair trial, and the rights of
workers. This classification does not correspond to
the distinction between civil and political rights.

Individual and collective rights


Although the fundamental purpose of human
rights is the protection and development of the
individual (individual rights), some of these rights
are exercised by people in groups (collective
rights). Freedom of association and assembly,
freedom of religion and, more especially, the
freedom to form or join a trade union, fall into this
category. The collective element is even more
evident when human rights are linked specifically
to membership of a certain group, such as the
right of members of ethnic and cultural minorities
to preserve their own language and culture. One
must make a distinction between two types of
rights, which are usually called collective rights:
individual rights enjoyed in association with
others, and the rights of a collective.
The most notable example of a collective human
right is the right to self-determination, which is
regarded as being vested in peoples rather than in
individuals (see Articles 1 ICCPR and ICESCR). The
recognition of the right to self-determination as a
human right is grounded in the fact that it is seen
as a necessary precondition for the development
of the individual. It is generally accepted that
collective rights may not infringe on universally
accepted individual rights, such as the right to life
and freedom from torture.
First, second and third generation rights
The division of human rights into three generations
was first proposed by Karel Vasak at the
International Institute of Human Rights in
Strasbourg. His division follows the principles of
Libert, galit and Fraternit of the French
Revolution.
First generation rights are related to liberty and
refer fundamentally to civil and political rights. The

second generation rights are related to equality,


including economic, social and cultural rights.
Third generation or solidarity rights cover group
and collective rights, which include, inter alia, the
right to development, the right to peace and the
right to a clean environment. The only third
generation right which so far has been given an
official human rights status - apart from the right
to self-determination, which is of longer standing is the right to development (see the Declaration on
the Right to Development, adopted by the UNGA
on 4 December 1986, and the 1993 Vienna
Declaration and Program of Action (Paragraph I,
10)). The Vienna Declaration confirms the right to
development as a collective as well as an
individual right, individuals being regarded as the
primary subjects of development. Recently, the
right to development has been given considerable
attention
in
the
activities
of
the
High
Commissioner for Human Rights. Adoption of a set
of criteria for the periodic evaluation of global
development partnerships from the perspective of
the right to development by the Working Group on
the Right to Development, in January, 2006,
evidence the concrete steps being taken in this
area. The EU and its member states also explicitly
accept the right to development as part of the
human rights concept.
While the classification of rights into generations
has the virtue of incorporating communal and
collective
rights,
thereby
overcoming
the
individualist moral theory in which human rights
are grounded, it has been criticized for not being
historically accurate and for establishing a sharp
distinction between all human rights. Indeed, the
concept of generations of rights is at odds with the
Teheran Proclamation and the Vienna Declaration
and Program of Action, which establish that all
rights
are
indivisible,
interdependent
and
interrelated.
HISTORY OF THE UNITED NATIONS
The name "United Nations", coined by United
States President Franklin D. Roosevelt was first
used in the Declaration by United Nations of 1
January 1942, during the Second World War,
when representatives of 26 nations pledged their
Governments to continue fighting together against
the Axis Powers.
States first established international organizations
to cooperate on specific matters. The International
Telecommunication Union was founded in 1865 as
the
International
Telegraph
Union,
and
the Universal Postal Union was established in
HR Notes by Terence Valdehueza

1874. Both are now United Nations specialized


agencies.
In 1899, the International Peace Conference was
held in The Hague to elaborate instruments for
settling crises peacefully, preventing wars and
codifying rules of warfare. It adopted the
Convention for the Pacific Settlement of
International
Disputes
and
established
the Permanent Court of Arbitration, which began
work in 1902.
The forerunner of the United Nations was
the League of Nations, an organization conceived
in similar circumstances during the First World
War, and established in 1919 under the Treaty of
Versailles "to promote international cooperation
and
to
achieve
peace
and
security."
The International Labor Organization was also
created under the Treaty of Versailles as an
affiliated agency of the League. The League of
Nations ceased its activities after failing to prevent
the Second World War.
In 1945, representatives of 50 countries met in
San Francisco at the United Nations Conference on
International Organization to draw up the United
Nations Charter. Those delegates deliberated on
the basis of proposals worked out by the
representatives of China, the Soviet Union, the
United Kingdom and the United States at
Dumbarton Oaks, United States in August-October
1944. The Charter was signed on 26 June 1945 by
the representatives of the 50 countries. Poland,
which was not represented at the Conference,
signed it later and became one of the original 51
Member States.
The United Nations officially came into existence
on 24 October 1945, when the Charter had been
ratified by China, France, the Soviet Union, the
United Kingdom, the United States, and by a
majority of other signatories. United Nations Day is
celebrated on 24 October each year.
HISTORY OF THE UNITED NATIONS CHARTER
The United Nations Charter is the treaty that
established the United Nations. The following
series of events led to the writing of the Charter,
and the UN's founding.
12 June 1941 - The Declaration of St. James's
Palace
In June 1941, London was the home of nine exiled
governments. The great British capital had already
seen twenty-two months of war and in the bombmarked city, air-raid sirens wailed all too
frequently. Practically all Europe had fallen to the

Axis and ships on the Atlantic, carrying vital


supplies, sank with grim regularity. But in London
itself and among the Allied governments and
peoples, faith in ultimate victory remained
unshaken. And, even more, people were looking
beyond military victory to the postwar future.
14 August 1941 - The Atlantic Charter
Two months after the London Declaration came the
next step to a world organization, the result of a
dramatic meeting between President Roosevelt
and Prime Minister Churchill.
1 January 1942 - The Declaration of the
United Nations
Representatives of 26 countries fighting the RomeBerlin-Tokyo Axis, decide to support the by Signing
the Declaration of the United Nations.
1943 - Moscow and Teheran Conference
Thus by 1943 all the principal Allied nations were
committed to outright victory and, thereafter, to
an attempt to create a world in which men in all
lands may live out their lives in freedom from fear
and want. But the basis for a world organization
had yet to be defined, and such a definition came
at the meeting of the Foreign Ministers of Great
Britain, the United States and the Soviet Union in
October 1943.
1944-1945 - Dumbarton Oaks and Yalta
The principles of the world organization-to-be were
thus laid down. But it is a long step from defining
the principles and purpose of such a body to
setting up the structure. A blueprint had to be
prepared, and it had to be accepted by many
nations.
1945 - San Francisco Conference
Forty-five nations, including the four sponsors,
were originally invited to the San Francisco
Conference: nations which had declared war on
Germany and Japan and had subscribed to
the United Nations Declaration.
THE HISTORY OF THE UNITED NATIONS
DECLARATION OF HUMAN RIGHTS
The United Nations Charter, specifically Article
68, requires the United Nations Economic and
Social Council to set up a commission that focuses
on human rights and economic and social
fields.
Article 68 of the United Nations Charter:
The Economic and Social Council shall set up
commissions in economic and social fields and for
the promotion of human rights, and such other
HR Notes by Terence Valdehueza

10

commissions as may be required


performance of its functions.

for

the

The outcome of which was the establishment of


the United Nations commission on human
rights. The commission on human rights was
composed of 8 members and was chaired by
Mrs. Eleanor Roosevelt, the widow of the late us
president franklin d. Roosevelt one of the key
persons responsible for the establishment of the
United Nations. The said commission was tasked
for the drafting of the international bill of
human rights. The central core of the bill was the
universal respect for human rights and
fundamental freedoms, which includes the
classical, cultural, economic, social, political and
other rights.
After the drafting by the Commission, it was
revised in light of the replies of some member
states of the United Nations. Afterwards, it was
submitted to the United Nations General Assembly.
The United Nations General Assembly, is one of
the principal organs and the policy making
representative forum of the United Nations.
The General Assembly, in turn, scrutinized the
document, with the 58 Member States voting a
total of 1,400 times on practically every word and
every clause of the text. There were many
debates. Some Islamic States objected to the
articles on equal marriage rights and on the right
to change religious belief, for example, while
several Western countries criticized the inclusion
of economic, social and cultural rights. On 10
December 1948, the United Nations General
Assembly unanimously adopted the Universal
Declaration of Human Rights, with 8 abstentions.
Since then, 10 December is celebrated every year
worldwide as Human Rights Day. The adoption of
the Declaration was immediately hailed as a
triumph, uniting very diverse and even conflicting
political regimes, religious systems and cultural
traditions.
THE UNITED NATIONS DECLARATION OF
HUMAN RIGHTS
Political rights
In general, political rights are those set out in
Articles 19 to 21 UDHR. They include freedom of
expression, freedom of association and assembly,
the right to take part in the government of ones
country and the right to vote and stand for
election at genuine periodic elections held by
secret ballot.

The economic and social rights are listed in


Articles 22 to 26 UDHR. These rights provide the
conditions necessary for prosperity and wellbeing.
Economic rights refer, for example, to the right to
property, the right to work, which one freely
chooses or accepts, the right to a fair wage, a
reasonable limitation of working hours, and trade
union rights. Social rights are those rights
necessary for an adequate standard of living,
including rights to health, shelter, food, social
care, and the right to education.
Cultural rights
The UDHR lists cultural rights in Articles 27 and 28:
the right to participate freely in the cultural life of
the community, the right to share in scientific
advancement and the right to the protection of the
moral and material interests resulting from any
scientific, literary or artistic production of which
one is the author.
Article 29
1. Everyone has duties to the community in
which alone the free and full development
of his personality is possible.
2. In the exercise of his rights and
freedoms, everyone shall be subject only to
such limitations as are determined by law
solely for the purpose of securing due
recognition and respect for the rights and
freedoms of others and of meeting the just
requirements of morality, public order and
the general welfare in a democratic society.
3. These rights and freedoms may in no
case be exercised contrary to the purposes
and principles of the United Nations.
In article 29, the Universal Declaration of Human
Rights reminds us that rights carry responsibilities.
It reminds us that everyone has duties to the
community.
A half century ago, the Declaration's drafters could
not have imagined the world as we know it; a
world where substances released on one continent
contribute to health problems on another; a world
where the destruction of forests or industrial
emissions of greenhouse gases in one part of the
globe have the power to affect the global climate.
Today, we are more aware than ever that we live in
a global village; that community now extends
beyond towns, beyond regions and beyond
countries. Our duty to the community is nothing
short of our duty to care for the environment from
pole to pole.

Economic and social rights


HR Notes by Terence Valdehueza

11

We are beginning to understand the urgent need


to care for our global commons: to protect the
ozone layer, to rid roads and fields of the scourge
of landmines, to curb climate change, to care for
our forests and the bounty of the seas. The
Montreal Protocol on ozone-depleting substances
and the International Convention on Landmines
are fine examples of what can be achieved when
human rights and human health are respected.
Today, Article 29 is a very valid reminder that the
dignity and rights of all members of the human
family can be preserved if we accept our duty to
the global community. By accepting that duty, we
will avoid the tragedy of the commons.
Article 30
Nothing in the Declaration may be
interpreted as implying for any State, group
or person any right to engage in any activity
or to perform any act aimed at the
destruction of any of the rights and
freedoms set forth herein.
Article 30 serves much the same function as the
Constitution of Canada which makes explicit the
principle that one part of the Constitution cannot
be used to invalidate or repeal another. Examining
the Universal Declaration of Human Rights in a
structural sense, it is clear that the inclusion of
Article 30 serves a critical function, in that it
precludes the possibility of using the provisions of
one article to trump the intended function and
provisions of another.
For example, article 18 articulates the universal
right to freedom of religious observance,
accompanied by the right to manifest that religion
or belief in teaching, practice, worship and
observance.
Article
16(3)
articulates
the
importance of the family as the natural and
fundamental group unit of society which is entitled
to protection by society and the State. In light of
article 30 then, it follows that, for example, a
devoutly religious family cannot justify the
involuntary "marrying off" of a child, thus trumping
Article 16(2), which spells out that marriage shall
be entered into only with the free and full consent
of the individual, the act of marrying that child
would stand in direct contravention of the
Declaration.
This is not a hollow example. In many countries
and societies around the world, children are
subjected to family duress and forced into
marriage according to their families' religious
convictions.

The fundamental point of Article 30 is to avoid the


fallacious interpretation of any of the provisions of
the Universal Declaration of Human Rights.
International Covenant on Civil and Political
Rights
The Covenant follows the structure of the UDHR
and ICESCR, with a preamble and fifty-three
articles, divided into six parts.

Part 1 (Article 1) recognizes the right of all


peoples to self-determination, including the right
to "freely determine their political status, pursue
their economic, social and cultural goals, and
manage and dispose of their own resources. It
recognises a negative right of a people not to be
deprived of its means of subsistence, and imposes
an obligation on those parties still responsible for
non-self-governing and trust territories (colonies)
to encourage and respect their self-determination.

Part 2 (Articles 2 5) obliges parties to legislate


where necessary to give effect to the rights
recognized in the Covenant, and to provide an
effective legal remedy for any violation of those
rights. It also requires the rights be recognized
"without distinction of any kind, such as race,
color, sex, language, religion, political or other
opinion, national or social origin, property, birth or
other status, and to ensure that they are enjoyed
equally by women. The rights can only be limited
"in time of public emergency which threatens the
life of the nation, and even then no derogation is
permitted from the rights to life, freedom
from torture and slavery,
the
freedom
from retrospective law, the right to personhood,
and freedom of thought, conscience and religion.

Part 3 (Articles 6 27) lists the rights themselves.


These include rights to:

physical integrity, in the form of the right to


life and freedom from torture and slavery
(Articles 6, 7, and 8);
liberty and security of the person, in the
form of freedom from arbitrary arrest and
detention and
the
right
to habeas
corpus (Articles 9 11);
HR Notes by Terence Valdehueza

12

procedural fairness in law, in the form of


rights to due process, a fair and impartial trial,
the presumption of innocence, and recognition
as a person before the law (Articles 14, 15, and
16);
individual liberty, in the form of the
freedoms of movement, thought, conscience
and religion, speech, association and assembly,
family rights, the right to a nationality, and the
right to privacy (Articles 12, 13, 17 24);
prohibition of any propaganda for war as
well as any advocacy of national or religious
hatred
that
constitutes incitement to
discrimination, hostility or violence by law
(Article 20);
political participation, including the right to
the right to vote (Article 25);
Non-discrimination, minority
rights and equality before the law (Articles 26
and 27).

Many of these rights include specific actions which


must be undertaken to realize them.

Part
4 (Articles
28

45)
governs
the
establishment and operation of the Human Rights
Committee and the reporting and monitoring of
the Covenant. It also allows parties to recognize
the competence of the Committee to resolve
disputes between parties on the implementation of
the Covenant (Articles 41 and 42).

Part 5 (Articles 46 47) clarifies that the


Covenant shall not be interpreted as interfering
with the operation of the United Nations or "the
inherent right of all peoples to enjoy and utilize
fully and freely their natural wealth and
resources".

Part 6 (Articles 48 53) governs ratification, entry


into force, and amendment of the Covenant.

Core provisions
Rights to physical integrity
Article 6 of the Covenant recognises the
individual's "inherent right to life" and requires it
to be protected by law. It is a "supreme right" from

which no derogation can be permitted, and must


be interpreted widely. It therefore requires parties
to take positive measures to reduce infant
mortality and increase life expectancy, as well as
forbidding arbitrary killings by security forces.

While Article 6 does not prohibit the death penalty,


it restricts its application to the "most serious
crimes and forbids it to be used on children and
pregnant women or in a manner contrary to
the Convention on the Prevention and Punishment
of the Crime of Genocide. The UN Human Rights
Committee interprets the Article as "strongly
suggesting that abolition is desirable", and regards
any progress towards abolition of the death
penalty as advancing this right. The Second
Optional Protocol commits its signatories to the
abolition of the death penalty within their borders.

Article 7 prohibits torture and cruel, inhuman or


degrading punishment. As with Article 6, it cannot
be derogated from under any circumstances. The
article is now interpreted to impose similar
obligations to those required by the United Nations
Convention Against Torture, including not just
prohibition of torture, but active measures to
prevent
its
use
and
a
prohibition
on refoulement. In
response
to Nazi
human
experimentation during WW2 this article explicitly
includes a prohibition on medical and scientific
experimentation without consent.

Article 8 prohibits slavery and enforced servitude


in all situations. The article also prohibits forced
labor, with exceptions for criminal punishment,
military service and civil obligations.

Liberty and security of person


Article 9 recognises the rights to liberty and
security of the person. It prohibits arbitrary arrest
and detention, requires any deprivation of liberty
to be according to law, and obliges parties to allow
those deprived of their liberty to challenge their
imprisonment through the courts. These provisions
apply not just to those imprisoned as part of the
criminal process, but also to those detained due to
mental illness, drug addiction, or for educational or
immigration purposes.

HR Notes by Terence Valdehueza

13

Articles
9.3
and
9.4 impose
procedural
safeguards around arrest, requiring anyone
arrested to be promptly informed of the charges
against them, and to be brought promptly before a
judge. It also restricts the use of pre-trial
detention, requiring it to be imposed only in
exceptional circumstances and for as short a
period of time as possible.
Article 10 requires anyone deprived of liberty to
be treated with dignity and humanity. This applies
not just to prisoners, but also to those detained for
immigration purposes or psychiatric care. The
right complements the Article 7 prohibition on
torture and cruel, inhuman or degrading
treatment. The article also imposes specific
obligations around criminal justice, requiring
prisoners in pretrial detention to be separated
from convicted prisoners, and children to be
separated from adults. It requires prisons to be
focused on reform and rehabilitation rather than
punishment.

Article 11 prohibits the use of imprisonment as a


punishment for breach of contract.

Procedural fairness and rights of the accused


Article 14 recognizes and protects a right to
justice and a fair trial. Article 14.1 establishes the
ground rules: everyone must be equal before the
courts, and any hearing must take place in open
court before a competent, independent and
impartial tribunal, with any judgment or ruling
made public. Closed hearings are only permitted
for reasons of privacy, justice, or national security,
and judgments may only be suppressed in divorce
cases or to protect the interests of children. These
obligations apply to both criminal and civil
hearings, and to all courts and tribunals.

The rest of the article imposes specific and


detailed obligations around the process of criminal
trials in order to protect the rights of the
accused and the right to a fair trial. It establishes
the Presumption of innocence and forbids double
jeopardy. It requires that those convicted of a
crime be allowed to appeal to a higher tribunal,
and requires victims of a Miscarriage of justice to
be compensated. It establishes rights to a speedy
trial, to counsel, against self-incrimination, and for

the accused to be present and call and examine


witnesses.

Article 15 prohibits prosecutions under Ex post


facto law and the imposition of retrospective
criminal penalties, and requires the imposition of
the lesser penalty where criminal sentences have
changed between the offence and conviction. But
except the criminal according to general principles
of law recognized by international community. (jus
cogens)

Article 16 requires states to recognize everyone


as a person before the law.

Individual liberties
Article 12 guarantees freedom of movement,
including the right of persons to choose their
residence and to leave a country. These rights
apply to legal aliens as well as citizens of a
state, and can be restricted only where necessary
to protect national security, public order or health,
and the rights and freedoms of others. The article
also recognises a right of people to enter their own
country. The Human Rights Committee interprets
this right broadly as applying not just to citizens,
but also to those stripped of or denied their
nationality. They also regard it as near-absolute;
there are few, if any, circumstances in which
deprivation of the right to enter one's own country
could be reasonable.

Article 13 forbids the arbitrary expulsion of


resident aliens and requires such decisions to be
able to be appealed and reviewed.

Article 17 mandates the right of privacy. This


provision, specifically article 17(1), protects
private adult consensual sexual activity, thereby
nullifying
prohibitions
on
homosexual
behavior, however, the wording of this covenant's
marriage
right
(Article
23)
excludes
the
extrapolation of a same-sex marriage right from
this provision. Article 17 also protects people
against unlawful attacks to their honor and
HR Notes by Terence Valdehueza

14

reputation. Article 17 (2) grants the protection of


the Law against such attacks.

Article 18 mandates freedom of religion.

Article 19 mandates freedom of expression.

Article 20 mandates sanctions against inciting


hatred.

Articles
21 and 22 mandate
freedom
of
association. These provisions guarantee the right
to freedom of association, the right to trade unions
and
also
defines
the International
Labor
Organization.

Article 23 mandates the right of marriage. The


wording of this provision neither requires nor
prohibits same-sex marriage.

Article 24 mandates special protection, the right


to a name, and the right to a nationality for every
child.

Article
27 mandates
the
rights
of ethnic, religious and linguistic minority to enjoy
their own culture, to profess their own religion,
and to use their own language.

Political rights
Article
3 provides
an
accessory
nondiscrimination principle. Accessory in the way that
it cannot be used independently and can only be
relied upon in relation to another right protected
by the ICCPR.

In contrast, Article 26 contains a revolutionary


norm by providing an autonomous equality
principle which is not dependent upon another
right under the convention being infringed. This
has the effect of widening the scope of the nondiscrimination principle beyond the scope of
ICCPR.
Optional protocols
There are two Optional Protocols to the Covenant.
The First
Optional
Protocol establishes
an
individual
complaints
mechanism,
allowing
individuals to complain to the Human Rights
Committee about violations of the Covenant. This
has led to the creation of a complex jurisprudence
on the interpretation and implementation of the
Covenant. As of July 2013, the First Optional
Protocol has 114 parties.

The Second Optional Protocol abolishes the death


penalty; however, countries were permitted to
make a reservation allowing for use of death
penalty for the most serious crimes of a military
nature, committed during wartime. As of July 2013,
the Second Optional Protocol had 77 parties.

International Covenant on Economic, Social


and Cultural Rights
Core provisions
Principle of progressive realization:
Article 2 of the Covenant imposes a duty on all
parties to take steps... to the maximum of its
available resources, with a view to achieving
progressively the full realization of the rights
recognized in the present Covenant by all
appropriate means, including particularly the
adoption of legislative measures.

This is known as the principle of "progressive


realization". It acknowledges that some of the
rights (for example, the right to health) may be
difficult in practice to achieve in a short period of
time, and that states may be subject to resource

HR Notes by Terence Valdehueza

15

constraints, but requires them to act as best they


can within their means.
The principle differs from that of the ICCPR, which
obliges parties to "respect and to ensure to all
individuals within its territory and subject to its
jurisdiction" the rights in that Convention.
However, it does not render the Covenant
meaningless. The requirement to "take steps"
imposes a continuing obligation to work towards
the realization of the rights. It also rules out
deliberately regressive measures which impede
that goal. The Committee on Economic, Social and
Cultural Rights also interprets the principle as
imposing minimum core obligations to provide, at
the least, minimum essential levels of each of the
rights. If resources are highly constrained, this
should include the use of targeted programs aimed
at the vulnerable.

The Committee on Economic, Social and Cultural


Rights regards legislation as an indispensable
means for realizing the rights which is unlikely to
be limited by resource constraints. The enacting of
anti-discrimination
provisions
and
the
establishment of enforceable rights with judicial
remedies within national legal systems are
considered to be appropriate means. Some
provisions, such as anti-discrimination laws, are
already required under other human rights
instruments, such as the ICCPR.
Labor rights
Article 6 of the Covenant recognizes the right to
work, defined as the opportunity of everyone to
gain their living by freely chosen or accepted work.
Parties are required to take "appropriate steps" to
safeguard this right, including technical and
vocational training and economic policies aimed at
steady economic development and ultimately full
employment. The right implies parties must
guarantee equal access to employment and
protect workers from being unfairly deprived of
employment. They must prevent discrimination in
the workplace and ensure access for the
disadvantaged. The fact that work must be freely
chosen or accepted means parties must
prohibit forced or child labor.

The work referred to in Article 6 must be decent


work. This is effectively defined by Article 7 of the
Covenant, which recognizes the right of everyone

to "just and favorable" working conditions. These


are in turn defined as fair wages with equal pay for
equal work, sufficient to provide a decent living for
workers and their dependents; safe working
conditions; equal opportunity in the workplace;
and sufficient rest and leisure, including
limited working hours and regular, paid holidays.

Article 8 recognises the right of workers to form


or join trade unions and protects the right to strike.
It allows these rights to be restricted for members
of the armed forces, police, or government
administrators. Several parties have placed
reservations on this clause, allowing it to be
interpreted
in
a manner consistent with
their constitutions (e.g., China,
Mexico),
or
extending the restriction of union rights to groups
such as firefighters (e.g., Japan).
Right to social security
Article 9 of the Covenant recognizes "the right of
everyone
to social
security,
including social
insurance". It requires parties to provide some
form of social insurance scheme to protect people
against the risks of sickness, disability, maternity,
employment injury, unemployment or old age; to
provide for survivors, orphans, and those who
cannot afford health care; and to ensure that
families are adequately supported. Benefits from
such a scheme must be adequate, accessible to
all, and provided without discrimination. The
Covenant does not restrict the form of the scheme,
and both contributory and non-contributory
schemes are permissible (as are community-based
and mutual schemes).

The Committee on Economic, Social and Cultural


Rights has noted persistent problems with the
implementation of this right, with very low levels
of access.

Several parties, including France and Monaco,


have reservations allowing them to set residence
requirements in order to qualify for social benefits.
The Committee on Economic, Social and Cultural
Rights permits such restrictions, provided they are
proportionate and reasonable.

HR Notes by Terence Valdehueza

16

Right to family life


Article 10 of the Covenant recognises the family
as "the natural and fundamental group unit of
society", and requires parties to accord it "the
widest possible protection and assistance". Parties
must ensure that their citizens are free to establish
families and that marriages are freely contracted
and not forced. Parties must also provide paid
leave or adequate social security to mothers
before and after childbirth, an obligation which
overlaps with that of Article 9. Finally, parties must
take "special measures" to protect children from
economic or social exploitation, including setting a
minimum age of employment and barring children
from dangerous and harmful occupations.
Right to an adequate standard of living
Article 11 recognises the right of everyone to an
adequate standard of living. This includes, but is
not limited to, the right to adequate food, clothing,
housing, and "the continuous improvement of
living conditions". It also creates an obligation on
parties to work together to eliminate world hunger.

The right to adequate food, also referred to as


the right to food, is interpreted as requiring "the
availability of food in a quantity and quality
sufficient to satisfy the dietary needs of
individuals, free from adverse substances, and
acceptable within a given culture". This must be
accessible to all, implying an obligation to provide
special programs for the vulnerable. This must also
ensure an equitable distribution of world food
supplies in relation to need, taking into account
the problems of food-importing and food-exporting
countries. The right to adequate food also implies
a right to water.

The right to adequate housing, also referred to


as the right to housing, is "the right to live
somewhere in security, peace and dignity". It
requires "adequate privacy, adequate space,
adequate
security,
adequate
lighting
and
ventilation, adequate basic infrastructure and
adequate location with regard to work and basic
facilities all at a reasonable cost". Parties must
ensure security of tenure and that access is free of
discrimination, and progressively work to eliminate
homelessness. Forced evictions, defined as "the
permanent or temporary removal against their will
of individuals, families and/or communities from

the homes and/or land which they occupy, without


the provision of, and access to, appropriate forms
of legal or other protection", are a prima facie
violation of the Covenant.

The right to adequate clothing, also referred to


as
the right
to
clothing,
has
not
been
authoritatively defined and has received little in
the way of academic commentary or international
discussion. What is considered "adequate" has
only been discussed in specific contexts, such as
refugees, the disabled, the elderly, or workers.
Right to health
Article 12 of the Covenant recognises the right of
everyone to "the enjoyment of the highest
attainable standard of physical and mental
health". "Health" is understood not just as a right
to be healthy, but as a right to control ones own
health and body (including reproduction), and be
free from interference such as torture or medical
experimentation. States must protect this right by
ensuring that everyone within their jurisdiction has
access to the underlying determinants of health,
such as clean water, sanitation, food, nutrition and
housing, and through a comprehensive system of
healthcare, which is available to everyone without
discrimination, and economically accessible to all.

Article 12.2 requires parties to take specific steps


to improve the health of their citizens, including
reducing infant mortality and improving child
health, improving environmental and workplace
health, preventing, controlling and treating
epidemic diseases, and creating conditions to
ensure equal and timely access to medical
services for all. These are considered to be
"illustrative, non-exhaustive examples", rather
than a complete statement of parties' obligations.

The right to health is interpreted as requiring


parties to respect women's' reproductive rights, by
not limiting access to contraception or "censoring,
withholding or intentionally misrepresenting"
information about sexual health. They must also
ensure that women are protected from harmful
traditional practices such as female genital
mutilation.
HR Notes by Terence Valdehueza

17

Right to health is inclusive right extending not only


to timely and appropriate health care but also to
the underlying determinants of health, such as
access to safe and potable water and adequate
sanitation, an adequate supply of safe food,
nutrition and housing, healthy occupational and
environmental conditions.

institutions for their children, also referred to


as freedom of education. It also recognises the
right of parents to "ensure the religious and moral
education of their children in conformity with their
own convictions". This is interpreted as requiring
public schools to respect the freedom of religion
and conscience of their students, and as forbidding
instruction in a particular religion or belief system
unless
non-discriminatory
exemptions
and
alternatives are available.

Right to free education


Article 13 of the Covenant recognises the right of
everyone to free education (free for the primary
level and "the progressive introduction of free
education" for the secondary and higher levels).
This is to be directed towards "the full
development of the human personality and the
sense of its dignity", and enable all persons to
participate effectively in society. Education is seen
both as a human right and as "an indispensable
means of realizing other human rights", and so this
is one of the longest and most important articles of
the Covenant.

Article 13.2 lists a number of specific steps


parties are required to pursue to realize the right
of education. These include the provision of free,
universal and compulsory primary education,
"generally available and accessible" secondary
education in various forms (including technical and
vocational training), and equally accessible higher
education. All of these must be available to all
without discrimination. Parties must also develop a
school system (though it may be public, private, or
mixed), encourage or provide scholarships for
disadvantaged groups. Parties are required to
make education free at all levels, either
immediately or progressively; "primary education
shall be compulsory and available free to all";
secondary education "shall be made generally
available and accessible to all by every
appropriate means, and in particular by the
progressive introduction of free education"; and "
higher education shall be made equally accessible
to all, on the basis of capacity, by every
appropriate means, and in particular by the
progressive introduction of free education".

Articles 13.3 and 13.4 require parties to respect


the educational freedom of parents by allowing
them to choose and establish private educational

The Committee on Economic, Social and Cultural


Rights interpret the Covenant as also requiring
states to respect the academic freedom of staff
and students, as this is vital for the educational
process. It also considers corporal punishment in
schools to be inconsistent with the Covenant's
underlying principle of the dignity of the individual.

Article 14 of the Covenant requires those parties


which have not yet established a system of free
compulsory primary education, to rapidly adopt a
detailed plan of action for its introduction "within a
reasonable number of years".
Right to participation in cultural life
Article 15 of the Covenant recognises the right of
everyone to participate in cultural life, enjoy the
benefits of scientific progress, and to benefit from
the protection of the moral and material rights to
any scientific discovery or artistic work they have
created. The latter clause is sometimes seen as
requiring the protection of intellectual property,
but the Committee on Economic, Social and
Cultural Rights interprets it as primarily protecting
the moral rights of authors and "proclaiming the
intrinsically personal character of every creation of
the human mind and the ensuing durable link
between creators and their creations". It thus
requires parties to respect the right of authors to
be recognized as the creator of a work. The
material rights are interpreted as being part of the
right to an adequate standard of living, and "need
not extend over the entire lifespan of an author."

Parties must also work to promote the


conservation, development and diffusion of
science and culture, "respect the freedom
indispensable for scientific research and creative
HR Notes by Terence Valdehueza

18

activity", and encourage international contacts


and cooperation in these fields.

Optional Protocol
The Optional Protocol establishes an individual
complaints mechanism for the Covenant similar to
those of the First Optional Protocol to the
International Covenant on Civil and Political
Rights, Optional Protocol to the Convention on the
Rights of Persons with Disabilities and Article 14 of
the Convention on the Elimination of All Forms of
Racial Discrimination. Parties agree to recognize
the competence of the Committee on Economic,
Social and Cultural Rights to consider complaints
from individuals or groups who claim their rights
under the Covenant have been violated.
Complainants must have exhausted all domestic
remedies, and anonymous complaints and
complaints referring to events which occurred
before the country concerned joined the Optional
Protocol are not permitted. The Committee can
request
information
from
and
make
recommendations to a party. Parties may also opt
to permit the Committee to hear complaints from
other parties, rather than just individuals.
The Protocol also includes an inquiry mechanism.
Parties may permit the Committee to investigate,
report on and make recommendations on "grave
or systematic violations" of the Convention. Parties
may opt out of this obligation on signature or
ratification.
The Optional Protocol required ten ratifications to
come
into
force.
International Convention on the Elimination
of All Forms of Racial Discrimination
The
Convention
follows
the
structure
of
the Universal
Declaration
of
Human
Rights, International Covenant on Civil and Political
Rights, and International Covenant on Economic,
Social and Cultural Rights, with a preamble and
twenty-five articles, divided into three parts.

Part 1 (Articles 1 7) commits parties to the


elimination of all forms of racial discrimination and
to promoting understanding among all races
(Article 2). Parties are obliged to not discriminate
on the basis of race, not to sponsor or defend

racism, and to prohibit racial discrimination within


their jurisdictions. They must also review their laws
and policies to ensure that they do not
discriminate on the basis of race, and commit to
amending or repealing those that do. Specific
areas in which discrimination must be eliminated
are listed in Article 5.

The Convention imposes a specific commitment on


parties
to
eradicate racial
segregation and
the crime of apartheid within their jurisdictions
(Article 3). Parties are also required to criminalize
the incitement of racial hatred (Article 4), to
ensure judicial remedies for acts of racial
discrimination (Article 6), and to engage in public
education to promote understanding and tolerance
(Article 7).

Part 2 (Articles 8 16) governs reporting and


monitoring of the Convention and the steps taken
by the parties to implement it. It establishes the
Committee
on
the
Elimination
of
Racial
Discrimination, and empowers it to make general
recommendations to the UN General Assembly. It
also establishes a dispute-resolution mechanism
between parties (Articles 11 13), and allows
parties to recognize the competence of the
Committee to hear complaints from individuals
about violations of the rights protected by the
Convention (Article 14).

Part 3 (Articles 17 25) governs ratification, entry


into force, and amendment of the Convention.

Core provisions
Definition of "racial discrimination"
Article 1 of the Convention defines "racial
discrimination" as ...any distinction, exclusion,
restriction or preference based on race, color,
descent, or national or ethnic origin which has the
purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental
freedoms in the political, economic, social, cultural
or any other field of public life.
Distinctions made on the basis of citizenship (that
is, between citizens and non-citizens) are
specifically excluded from the definition, as
HR Notes by Terence Valdehueza

19

are affirmative action policies and other measures


taken to redress imbalances and promote equality.

This definition does not distinguish between


discrimination
based
on ethnicity and
discrimination based on race, in part because the
distinction between the ethnicity and race remains
debatable among anthropologists. The inclusion of
descent specifically covers discrimination on the
basis of caste and other forms of inherited status.

Discrimination need not be strictly based on race


or ethnicity for the Convention to apply. Rather,
whether a particular action or policy discriminates
is judged by its effects.
In seeking to determine whether an action has an
effect contrary to the Convention, it will look to see
whether that action has an unjustifiable disparate
impact upon a group distinguished by race, color,
descent, or national or ethnic origin.
The question of whether an individual belongs to a
particular racial group is to be decided, in the
absence of justification to the contrary, by selfidentification.
Prevention of discrimination
Article 2 of the Convention condemns racial
discrimination and obliges parties to "undertake to
pursue by all appropriate means and without delay
a policy of eliminating racial discrimination in all
its forms. It also obliges parties to promote
understanding among all races. To achieve this,
the Convention requires that signatories:

Not practice racial discrimination in public


institutions
Not "sponsor, defend, or support" racial
discrimination
Review existing policies, and amend or
revoke those that cause or perpetuate racial
discrimination
Prohibit "by all appropriate means, including
legislation,"
racial
discrimination
by
individuals and organizations within their
jurisdictions
Encourage groups, movements, and other
means that eliminate barriers between
races, and discourage racial division

Parties are obliged "when the circumstances so


warrant" to use affirmative action policies for
specific racial groups to guarantee "the full and
equal enjoyment of human rights and fundamental
freedoms". However, these measures must be
finite, and "shall in no case entail as a
consequence the maintenance of unequal or
separate rights for different racial groups after the
objectives for which they were taken have been
achieved".
Article 5 expands upon the general obligation of
Article 2 and creates a specific obligation to
guarantee the right of everyone to equality before
the law regardless of "race, color, or national or
ethnic origin". It further lists specific rights this
equality must apply to: equal treatment by courts
and tribunals, security of the person and freedom
from violence, the civil and political rights affirmed
in the ICCPR, the economic, social and cultural
rights affirmed in the ICESCR, and the right of
access to any place or service used by the general
public, "such as transport hotels, restaurants,
cafes, theatres and parks." This list is not
exhaustive, and the obligation extends to all
human rights.

Article 6 obliges parties to provide "effective


protection and remedies" through the courts or
other
institutions
for
any
act
of
racial
discrimination. This includes a right to a legal
remedy and damages for injury suffered due to
discrimination.

Condemnation of apartheid
Article
3 condemns apartheid and racial
segregation and obliges parties to "prevent,
prohibit and eradicate" these practices in
territories under their jurisdiction. This article has
since been strengthened by the recognition of
apartheid
as
a crime
against
humanity in
the Rome Statute of the International Criminal
Court.

The Committee on the Elimination of Racial


Discrimination regards this article as also entailing
an obligation to eradicate the consequences of
past policies of segregation, and to prevent racial
HR Notes by Terence Valdehueza

20

segregation arising from the actions of private


individuals.

Prohibition of incitement
Article
4 of
the
Convention
condemns
propaganda and organizations that attempt to
justify discrimination or are based on the idea of
racial supremacism. It obliges parties, "with due
regard to the principles embodied in the Universal
Declaration
of
Human
Rights",
to
adopt
"immediate and positive measures" to eradicate
these
forms
of
incitement
and
discrimination. Specifically, it obliges parties to
criminalize hate speech, hate crimes and the
financing of racist activities, and to prohibit and
criminalize membership in organizations that
"promote and incite" racial discrimination. A
number of parties have reservations on this article,
and interpret it as not permitting or requiring
measures that infringe on the freedoms of speech,
association or assembly.

The Committee on the Elimination of Racial


Discrimination regards this article as a mandatory
obligation of parties to the Convention, and has
repeatedly criticized parties for failing to abide by
it. It regards the obligation as consistent with
the freedoms of opinion and expression affirmed in
the UNDHR and ICCPR and notes that the latter
specifically outlaws inciting racial discrimination,
hatred and violence. It views the provisions as
necessary to prevent organized racial violence and
the "political exploitation of ethnic difference."
Promotion of tolerance
Article 7 obliges parties to adopt "immediate and
effective measures", particularly in education, to
combat
racial
prejudice
and
encourage
understanding and tolerance between different
racial, ethnic and national groups.

Dispute resolution mechanism


Articles 11 through 13 of the Convention
establish a dispute resolution mechanism between
parties. A party that believes another party is not
implementing the Convention may complain to the
Committee
on
the
Elimination
of
Racial
Discrimination. The Committee will pass on the
complaint, and if it is not resolved between the
two parties, may establish an ad hoc Conciliation
Commission
to
investigate
and
make
recommendations on the matter. This procedure
has never been used.

Article 22 further allows any dispute over the


interpretation or application of the Convention to
be referred to the International Court of Justice.
This clause has been invoked only once, by
Georgia against Russia.
Individual complaints mechanism
Article 14 of the Convention establishes an
individual complaints mechanism similar to that of
the First Optional Protocol to the International
Covenant on Civil and Political Rights, Optional
Protocol to the Convention on the Rights of
Persons with Disabilities and Optional Protocol to
the Convention on the Elimination of All Forms of
Discrimination against Women. Parties may at any
time recognize the competence of the Committee
on the Elimination of Racial Discrimination to
consider complaints from individuals or groups
who claim their rights under the Convention have
been violated. Such parties may establish local
bodies to hear complaints before they are passed
on. Complainants must have exhausted all
domestic remedies, and anonymous complaints
and complaints that refer to events that occurred
before the country concerned joined the Optional
Protocol are not permitted. The Committee can
request
information
from
and
make
recommendations to a party.

The individual complaints mechanism came into


operation in 1982, after it had been accepted by
ten states-parties. As of 2010, 58 states had
recognized the competence of the Committee, and
54 cases have been dealt with by the Committee.

HR Notes by Terence Valdehueza

21