SESSION 1: INTRODUCTION TO H UMAN RIGHTS

Atty. Maita Chan-Gonzaga

Human rights o which has the purpose or effect of nullifying or impairing
1. Universal the recognition, enjoyment or exercise, on an equal footing
2. Inherent of human rights and fundamental freedoms in the political,
3. Inalienable economic, social, cultural, or any other field of public life
4. Indivisible (Article 1)
5. Interrelated
6. Non-discriminatory Convention Against Torture and other cruel, inhuman or degrading
treatment or punishment
Human rights – universal legal guarantees protecting individuals and  Philippines has RA9745: Anti-Torture Act of 2009
groups against actions that interfere with their fundamental rights and
human dignity. Places obligations upon states and state actors Convention on the rights of Persons with Disabilities
 Ph has RA 7277: Magna Carta for Disabled Persons (Amended by
Customary International Law/ Custom – law that develops through general RA 9442)
and consistent practice of States and followed because of a sense of legal
obligations Convention on the Rights of the Child
 Sets out the civil, political, social and cultural rights of children.
Treaty law  Requires that states act in the best interests of the child
 Acknowledges that every child has certain fundamental rights
Universal Declaration of Human Rights – adopted by the UNGA on Dec 10,
1948 Convention on the elimination of all forms of discrimination against women
 First global expression of rights to which all humans are entitled  The term discrimination against women shall mean any distinction,
 Certain provisions have ripened into custom exclusion or restriction made on the basis of sex which has the
 ―Recognition of the inherent dignity and of the equal and effect or purpose of impairing or nullifying the recognition,
inalienable rights of all members of the human family is the enjoyment or exercise by women, irrespective of their marital
foundation of freedom, justice and peace in the world‖ – preamble status, on a basis of equality of men and women, of human rights
UDHR and fundamental freedoms in the political, economic, social,
cultural, civil or any other field (Article 1)
International Covenant of Civil and Political Rights
 Dignity and Physical integrity International Convention on the protection of the Rights of All Migrant
 Due process Workers and Their families
 Individual freedoms  Problem: State parties are mostly the sending states
 Protection against discrimination  PH has RA 8042: Migrant workers and overseas Filipinos Act of
 Political participation 1995 (as amended by RA 10022)

ICESCR International convention for the protection of all persons from Enforced
 Labor rights, social security Disappearances
 Participation in cultural life  Not ratified by the PH
 Adequate standard of living  But we do have the Anti-Enforced Disappearance law
 Education, health
3-fold state obligations:
International Convention on the Elimination of all forms of Racial 1. Respect – refrain from interfering with enjoyment of rights
Discrimination 2. Protect – prevent violations by other persons
 Discrimination – 3. Fulfil – take appropriate measures towards realization of rights
o Any distinction, exclusion, restriction or preference
 based on race, color, descent, or national or ethnic The Philippines is bound by Ratified Treaties
origin  Article 11 of Vienna Convention on the Law of Treaties
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  Principle of Transformation
The Ph is bound by Customary International Law – principle of
incorporation

Enforcement and Monitoring

 State Level – Domestic Legal System
 International level
o Ad Hoc tribunals
o Rome Statute (ICC)

 Domestic Monitoring
 Regional Monitoring
o Regional organizations have HR mechanisms, such as the
Inter-American Human Rights System, Europe Court of
Human Rights, African Commission on Human Rights and
Peoples Rights
o ASEAN Intergovernmental Commission on Human Rights,
ASEAN Commission on the Promotion and Protection of the
Rights of Women and Children

 Global Monitoring
o Treaty-based Bodies
 Committee of experts
 Monitor implementation of convention
 Issue general recommendations/comments
 Examine individual complaints
o Peace-keeping and human rights field operations
 1503 Procedure: deals with communications relating to consistent
patterns of gross violations of human rights
 Special Procedures (Special rapporteurs, independent experts,
working groups): country mandates and thematic mandates
 UPR

Promotion of Human Rights

 Office of the High Commissioner for Human Rights
o Advisory services, technical and financial services at the
request of States or regional organizations
o UN education and public information programmes on
human rights
o Active roles in removing obstacles to meeting HR
obligations
o Dialogue with government on HR issues
o Carry out tasks assigned by UN Bodies

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 SESSION 2: COMPARATIVE OVERVIEW: IHRL, IHL, ICL, PIL
Atty. Gilbert Sembrano
Notes taken from IHRL class midterms reviewer 
1. The Interaction between Human Rights and Humanitarian
Law: Fragmentation, Conflict, Parallelism, or Convergence?
Alexander Orakhelashvili
Scope of Application of IHRL and IHL
IHL – applies only to armed IHRL – applies in both peace and
conflicts, as stipulated, for war; applicable to everyone within
instance, in Common Article 2 of the jurisdiction of the State
the 1949 Geneva Conventions concerned in time of peace as well
as in time of armed conflict.
 Despite distinction, both can be applicable to a particular situation
(i.e., during times of armed conflict). Several ICJ decisions which
affirmed the interdependence of both laws:
o Construction of the Wall in the Occupied Palestinian
Territory: Court observed that the construction of the Wall
led to the destruction or requisition of properties in
violation of Articles 46 and 52 of the 1907 Hague
Regulations and Article 53 of the IV Geneva Convention.
The Court pointed out that these destructions were not
justified by military necessity
o DRC v. Uganda: Congo claimed that serious and
widespread human rights and humanitarian law violations
were committed by the Ugandan forces in the occupied
parts of the Congo, against the lives and property of the
Congolese population. 12 The Court observed that Uganda
was responsible for violations of human rights law and
humanitarian law
 Article 42 of 1907 Hague Regulations - the territory is under
occupation if effectively taken under control. The acts of the
occupying power which violate the applicable humanitarian
law and human rights law provisions are null and void.
 According to the International Criminal Tribunal for the Former
Yugoslavia (ICTY): human rights law and humanitarian law are
mutually complementary and their use for ascertaining each
other‘s content and scope is both appropriate and inevitable.
 Due to the resemblance of both laws in terms of goals, use, and
terminology, recourse to IHRL is done to determine the existing
customary international law in the field of IHL.
 In terms of the applicability of humanitarian law, the ICTY noted
that once the existence of an armed conflict has been established,
international humanitarian law continues to apply beyond the
cessation of hostilities.
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o However, this principle of continuous applicability of
humanitarian law relates to only those provisions that are
by their nature suitable for being applied after the
cessation of hostilities (i.e., prosecution of international
crimes or to the duties and rights of the occupying power).
It would not cover the provisions relating to combat
actions and ensuing military necessity.
 Human rights treaties consider the state of war, in which
humanitarian law applies, as the condition which justifies
derogation from treaty obligations.
o Article 4 ICCPR and Article 15 ECHR: in an officially
proclaimed public emergency which threatens the life of
the nation, the State parties may derogate from their
obligations under the relevant treaty to the extent strictly
required by the exigencies of the situation, provided that
such measures are not inconsistent with their other
obligations (including IHL) under international law.
o Thus, while administering Article 15 ECHR, the European
Court of Human Rights is duty-bound to test whether
the conduct and measures of the derogating state
are in accordance with humanitarian law.
o UNHRC General Comment No. 29: Measures derogating
from other treaties, such as ICCPR, have also to be in
accordance with humanitarian law.
o The requirements of humanitarian law, especially the
essence of the distinction between civilian and military
targets, necessity and proportionality, and humane
treatment of protected persons represent the bottom line
below which derogation from human rights treaties cannot
justify the freedom of action of states parties.
 In other words, while emergency derogations from human
rights law are possible, they are not from humanitarian law,
because humanitarian law applies precisely to those
situations which are among those justifying the emergency
derogations from human rights treaties.
 IHL is based on the balance of military necessity and
humanitarian considerations.
o These criteria however are vague and undefined, and they
themselves cannot constitute the criteria for the rights and
duties of the occupying power
o The proper way is not to refer to such indeterminate
categories per se, but to ascertain the legality of the
occupying power’s action by reference to its impact
 in terms of the requirements embodied in the
specific norms of humanitarian law
o Therefore, judging the legality of the relevant conduct of
the state just in terms of the general requirements of
necessity, proportionality, or humanity can result in
prejudicing the requirements not only of humanitarian law,
but also of human rights law.
 In some cases, humanitarian law is considered as less of a barrier
than human rights law (the flaw in the ruling of some courts,
particularly the Israeli Supreme Court in one case).
o For example, the judgment of the Israeli Supreme Court2
on the lawfulness of the targeted assassination of
suspected terrorists:
 Humanitarian law was applied even if there the
presence of armed conflict is questionable in the
legal sense (Article 2 of 1949 Geneva Conventions
provides that armed conflict is a conflict between
two or more states, and the existence of terrorism
does not by itself make humanitarian law
applicable).
 While the applicability of humanitarian law is
doubtful in this situation, human rights law
certainly applies in terms of the prohibition of the
arbitrary deprivation of life. BUT the Supreme
Court’s judgment does not come to terms
with this position.
 GENERAL CONCLUSION: each of the two bodies of law can apply
to the relevant armed conflict. The subjects governed by one body
of law are frequently also governed by the other body of law, and
whatever the formal and procedural constraints on the powers of
national and international decision-making bodies, in the exercise
of their mandate they are expected, at least by implication, to
consider the impact of both human rights law and
humanitarian law, to reach the outcomes permissible at the level
of international law. The protection under humanitarian law is not
substantially lower than that under human rights law (but it
remains to be seen how this process works in terms of specific
individual rights.)
FREEDOM FROM ARBITRARY DEPRIVATION OF LIFE
 relationship between human rights law and humanitarian law in
terms of the right to life has been determined by the ICJ in the
Nuclear Weapons Advisory Opinion, as the relationship between lex
specialis and lex generalis:
o ―the right not to be arbitrarily deprived of one’s life
applies also in hostilities. The test of what constitutes
an arbitrary deprivation of life, however, then must be
determined by the applicable lex specialis , namely, the
law applicable in armed conflict. Thus, whether a particular
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loss of life, through the use of a certain weapon in warfare,
is to be considered an arbitrary deprivation of life contrary
to Article 6 of the Covenant, can only be decided by
reference to the law applicable in armed conflict and not
deduced from the terms of the Covenant itself.‖
 UN Special Rapporteur on Human Rights further clarified the
interaction between the two laws:
o ―Humanitarian law serves as further elaboration of the
parameters of the right to life in armed conflict, and
defines circumstances in which the deprivation of life is or
is not arbitrary.‖
 Human rights law can at times be self-sufficient in dealing with the
relevant violations, without needing assistance from humanitarian
law. This is because human rights law is designed to respond to
the situations it applies to in an autonomous way, if needed.
 IN GENERAL: decisions of the European Court of Human Rights
on the matter of the right to life in armed conflict demonstrates
that even though Article 2 of the Convention does not elaborate
upon the specific conduct that may be expected by the Military in
such contingencies, in terms of precaution, proportionality, and
necessity, it can nevertheless be applied as having an effect on
armed conflict comparable to the 1977 Additional Protocol which
pertains to internal armed conflicts.
 The legitimacy of the Court‘s findings in the cases involving armed
conflicts will always be conditional upon the compliance with the
standards of international humanitarian.
o Therefore, the Court‘s approach should be based on the
implicit application of the standards of humanitarian
law, albeit cloaked in the Convention-specific
categories of legitimacy, necessity, and
proportionality.
FREEDOM FROM TORTURE
 International law, while outlawing torture in armed conflict, does
not provide a definition of the prohibition, and thus that it was
necessary to resort to human rights law to clarify the meaning of
this prohibition. In this field, human rights law effectively serves as
the interpretive guide of the relevant aspects of humanitarian law.
 As the ICTY affirmed repeatedly in both Delalic and Furundzija ,
the definition of torture under the 1984 UN Convention against
Torture included those contained in the 1975 UN Declaration
against Torture or the 1985 Inter-American Convention against
Torture, and thus it constituted a consensus representative of
customary international law.
 There‘s a need to adapt the definition of torture to the context
of armed conflicts, where the human rights definition of torture,
may not be the only acceptable one.
FREEDOM FROM ARBITRARY DETENTION
 UN Report on Guantanamo Detainees: There arose a question
whether the continued detention of the Guantánamo Bay detainees
as ‗ enemy combatants ‘ does in fact constitute arbitrary
deprivation of the right to personal liberty.
o detention under humanitarian law is merely
protective custody, unlawful combatants must be
tried or released at the end of hostilities.
o In this case however, the ongoing detention was primarily
for obtaining information and gathering intelligence on the
Al Qaeda network, and not really to prevent combatants
from taking up arms against US again.
o Furthermore, while US forces continue to be engaged in
combat operations in Afghanistan, ‗ they are not currently
engaged in an international armed conflict between two
Parties to the Third and Fourth Geneva Conventions.
o Since this is an ongoing non-international armed conflicts
involving United States forces, the lex specialis authorizing
detention without respect for the guarantees set forth in
article 9 of ICCPR therefore can no longer serve as
basis for that detention.‘
o In other words, the general law of human rights
continues to govern and outlaw the detention of the
Guantánamo detainees.
PROCEDURAL SAFEGUARDS
 The rights to a fair trial and due process are regulated and
recognized by both human rights and humanitarian law.
o These rights are embodied in Article 14 ICCPR, Articles 105
and 106 of the Third Geneva Convention, and Article 75 of
Additional Protocol I. In addition, Article 5 of the Third
Geneva Convention stipulates that persons detained in the
course of armed conflict have the right to have their status
verified by the competent tribunal. Articles 68 to 78 of the
Fourth Geneva Convention list a number of procedural due
process and fair trial guarantees that have to be afforded
to individuals in occupied territories. These provisions
largely overlap with safeguards provided in human rights
treaties.
 Furthermore, the fair trial safeguards under Common Article 3
apply to all armed conflicts, and it is hardly possible to justify
derogation from the right to a fair trial in a less grave emergency
situation.
 The Commission specifies that basic procedural human rights
safeguards apply ‗without prejudging the possible application of
international humanitarian law to the detainees at Guantanamo
Bay.‘
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 The relevance of human rights law in this context is to provide the
outer layer of protection to individuals, inter alia when
humanitarian law ceases to apply after the end of hostilities, and
to provide interpretive guidance for understanding the content of
fair trial guarantees under humanitarian law.
CONCLUSION
 The preconceived approach that humanitarian law can, as lex
specialis, displace human rights law is not supported by sufficient
evidence!!!
 If humanitarian law is lex specialis, it is so for limited purposes
and in a way complements – not curtails – the level of
protection under human rights law.
 When humanitarian law safeguards are applied as their content
requires, human rights and humanitarian law norms reveal a
similar content.
 In these cases, the protection under humanitarian norms does not
prove to be less than under human rights law. On the other hand,
the built-in limitations of human rights treaty norms provide
for accommodating the requirements of military necessity,
proportionality, and humanity as applicable in humanitarian
law.
2. International Humanitarian Law and Other Legal Regimes:
Interplay in Situations of Violence AND Expert meeting on
Complementarity
Jacob Kellenberger, President of the International Committee of
the Red Cross 27th Annual Round Table on Current Problems of
IHL, 4 Sept 2003
Key Takeaway: IHL and IHR are complementary bodies of the law.
Despite the distinguishing characteristics of IHL and IHR,
similarities lie primarily in their purpose and content.
 35 years ago, the International Conference on HR held at Teheran
adopted a resolution entitled ―Human Rights in Armed Conflicts‖
o Signalled the international community‘s recognition that
armed conflicts ―continued to plague humanity‖ despite the
UN Charter‘s prohibition on threats or use of force in
international relations
o Put an end to 2 decades of UN‘s reluctance to address
issues of ius in bello for fear of undermining the Charter‘s
provisions on ius ad bellum
o Opened a new way to look at the relationship bet. IHR and
IHL in the protection of persons affected by war
 Besides the UN, non-governmental organizations have contributed
to enhancing protection by reliance on the different bodies of the
law
  Issue to be resolved: Interplay between the different bodies of law
in situations of violence = Are the different legal regimes mutually
exclusive or are they one and the same normative framework
aimed at protecting human beings? Are they distinct but
complementary?
Similarities between IHR and IHL: purpose and content
IHL IHRL
Ensure the protection of persons Govern relations between States
affected by armed conflict and of and individuals
those who find themselves in the
hands of the adversary
Establishes the duties of parties to Normative expression to the notion
an armed conflict AND its norms that a state‘s treatment of persons
serve to spare individuals from on its territory or under its
the ravages of war jurisdiction does not belong to the
sphere of its internal affairs
Rules on the conduct of hostilities norms protecting the right to life are
and on the treatment of persons more stringent
who find themselves in enemy
hands are designed to safeguard
the right to life
NON-DEROGABLE – lex specialis Derogation allowed - certain human
designed to govern armed conflict rights norms may have been
derogated from under the relevant
treaty provisions governing states of
emergency
defines the identical obligations of governs relations between state and
parties to an armed conflict individuals (do not rise to the level
of crimes under IL)
Common underlying purpose: the protection of the life, health, and dignity
of human beings
 In either case, the guiding principle is: individuals have the right to
be protected from arbitrariness and abuse because they are
human
Individuals became subjects of international law
 IHL primarily establishes the duties of parties to an armed conflict
AND its norms serve to spare individuals from the ravages of war
 IHR: gave the normative expression to the notion that a state‘s
treatment of persons on its territory or under its jurisdiction does
not belong to the sphere of its internal affairs
o Individuals thus became subjects of IL by means of various
human rights mechanisms permitting international scrutiny
over the way a state treats persons
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Content of many of their norms: protection of human life, prevention of
torture, insurance of fundamental judicial guarantees to persons subject to
criminal process
a. Right to Life
 IHL rules on the conduct of hostilities and on the treatment of
persons who find themselves in enemy hands are designed to
safeguard the right to life
o Basic IHL tenets such as the principle of distinction, the
prohibition of direct attacks against civilians and the
prohibition of indiscriminate attacks are meant to
protect the lives of persons not taking a direct part
in hostilities
 IHR norms protecting the right to life are more stringent
 BOTH bodies of law prescribe what constitutes unlawful taking
of life within their respective scope of application
 Torture and other forms of cruel, inhuman, or degrading
treatment or punishment – considered crimes under IL
b. Fundamental judicial guarantees
 Art. 3 common to the Geneva Conventions, which is applicable in
all types of armed conflicts, prohibits the ―passing of sentences
and the carrying out of executions without previous
judgment pronounced by a regularly constituted court‖
 The fair trial standards of IHR must be relied on to interpret and
give specific content to the relevant provisions of common art. 3
 The mutually reinforcing nature of humanitarian and human rights
law in the area of judicial guarantees is, moreover, confirmed by
the wording of art. 75 of Additional Protocol I of 1977 and art. 6 of
Additional Protocol II, which was clearly influenced by human
rights law
 The prohibition of arbitrary killing, torture, or denial of
judicial guarantees
 Respect for religion and religious practices, and respect for family
life
c. Realization of economic and social rights in situations of armed
conflict
 IHL provides rules on the conduct of hostilities prohibit both
starvation of the civilian population as a method of warfare and
attacks against or destruction of objects indispensable to the
survival of the civilian population
Adoption of treaties containing a mix of IHL and IHR provisions
 CRC - Protocol on the Involvement of Children in Armed Conflic
 Rome treaty establishing a permanent International Criminal
Court
 ICRC‘s Study on Customary International Humanitarian Law
Applicable in Armed Conflicts

Distinguishing Characteristics
The totality of IHL norms is non-derogable
 IHL is the lex specialis designed to regulate armed conflict
 The exceptional circumstances of armed conflict by their very
nature demand that no derogations from any of the obligations of
the parties to a conflict be allowed if humanitarian law is to serve
the purpose of protecting persons
 Thus, in contrast to certain rules of human rights law, the totality
of humanitarian law norms is non-derogable
International law vs. domestic law
 IHL defines the identical obligations of parties to an armed conflict
(includes state and non-state actors – such is not the case under
domestic law)
 IHR law governs relations between state and individuals (do not
rise to the level of crimes under IL)
Extraterritorial applicability of IHL‘s norms
 Effective control over territory is not a precondition for parties‘
compliance with treaty or customary norms governing the conduct
of hostilities or the treatment of per- sons belonging to the
adverse party who may have fallen into their hand
 The extraterritorial application of international and regional
human rights treaty law, by contrast, is still being clarified by
means of human rights jurisprudence
Complementarity of the laws and its challenges
 The existence of an armed conflict — and the application of
humanitarian law — does not mean that the government is
absolved of its human rights obligations towards persons on its
territory or subject to its jurisdiction pursuant to treaty-based or
customary human rights law
o Human rights law continues to apply alongside
domestic law in armed conflict, except for the limited
extent to which certain human rights norms may
have been derogated from under the relevant treaty
provisions governing states of emergency
 The complementary application of different bodies of law in
internal armed conflicts does not mean that effective protection of
persons in these types of conflicts is provided
 As the extraterritorial application of human rights law is still in the
process of being clarified, dealing with possible protection gaps is
also an issue deserving of attention
 Another consequence of the fight against terrorism has been the
erosion of States‘ compliance with international standards
governing deprivation of liberty
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o Humanitarian law applicable in international armed
conflicts does not allow the indefinite detention of
protected persons.
3. Expert Meeting on Complementarities between
International Refugee Law, International Criminal Law, and
International Human Rights Law
UNHCR Arusha, Tanzania, 11-13 April 2011
Key Takeaway: The resolution of certain international issues truly do
rely on the amalgam of different regimes of international law.
Fragmentation of International Law and the Rise of Specific
International Legal Regimes
 There is no hierarchical relationship between these strands of IL,
however, they are interconnected
 Normative differences not only exist between distinct international
legal regimes but also within each of these regimes
 Article 31(3)(c) of the Vienna Convention on the Law of Treaties
and the notion of ―systemic integration‖ are the main tools of
treaty interpretation which are important in the resolution of
normative conflict
 The relationship between international, regional and national laws
and the role of domestic and regional law and institutions are other
dimensions to take into account in the process of interpreting and
applying international norms.
Forced Displacement, Deportation, and Forcible Transfer
 Relevant provisions of these branches of law establish a prohibition
on arbitrary displacement under international law
 The slave trade remains one of the more tragic examples of forced
displacement carried out on a large scale
 Deportation and forcible displacement are both war crimes and
crimes against humanity
 ICTY jurisprudence
o Deportation: forced movement across a state or de facto
state border
o Forcible transfer: takes place within state boundaries
 The concept of ―ethnic cleansing‖, while not an international crime
as such, encompasses a cluster of crimes, including deportation
and forcible transfer
 In international jurisprudence, a shared element in both crimes is
a lack of genuine choice
o Action intended to raise fear among the targeted
population and resulting in their flight (e.g., shelling,
bombing, destruction of property) has been considered
evidence of a lack of genuine choice
  The definitions of both deportation and forcible transfer under
international criminal law refer to the ―lawful presence‖ of the
population
o Lawful residence is usually assumed based on de facto
residence in a specific area, including for populations
displaced to that area
Persecution
 Many of the same acts are considered persecution under both
international criminal law and international refugee law
 Persecution is only one element in the 1951 Convention refugee
definition and is part of an assessment as to whether an individual
is in need of international protection from prospective harm
o The refugee definition requires that the fear of being
persecuted be linked to one or more of the Convention
grounds, namely race, religion, nationality, membership of
a particular social group or political opinion
o In refugee claims based on the persecutory conduct of
nonstate actors, status is granted on the basis of the
state‘s inability or unwillingness to protect
o No specific discriminatory intent is required
 Additional elements to establish the crime of persecution as a
crime against humanity under international criminal law: the
requirements of (1) discriminatory intent and that (2) the crime be
part of a widespread or systematic attack against a civilian
population
o These are not required for a finding that a particular kind
of harm amounts to persecution under international
refugee law
 The actus reus of persecution under international criminal law
requires that the act(s) constitutes discrimination in fact violating
fundamental human rights and that its consequences for the
victims be at least as serious as the effects of other crimes
 However, certain human rights violations have been found to meet
the threshold for persecution as a crime against humanity even if
they do not as such constitute international crimes, including:
o Denial of freedom of movement
o Denial of employment
o Denial of access to the judicial process
o Denial of equal access to public services, and
o Hate speech
 Human rights violations, other kinds of serious harm, or other
measures, though not in and of themselves amounting to
persecution, can meet the threshold of seriousness required to
constitute persecution through accumulation
 Although persecution in international refugee law must be
interpreted and understood in connection with the other elements
of the refugee definition in Article 1(A)(2) of the 1951 Refugee
Convention, persecution is a concept in its own right and should
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not be conflated with the notion of surrogacy or the absence or
failure of state protection
 As a basis for refugee status under the 1951 Convention,
discrimination has been a central feature of claims relating to
gender-related persecution
o Forms of gender-related violence can also take the form of
political or religious acts, even when committed by
nonstate actors
Armed Conflict and International Protection
 There is convergence between international humanitarian law and
international criminal law as regards the definition of ―armed
conflict‖
 There is broad agreement that for an armed conflict to exist, there
must be resort to armed force between states or protracted armed
violence between governmental authorities and organised armed
groups or between such groups within a state
 Indicia to ascertain the level of organization of an armed group
include:
o Existence of a command structure
o Logistical capacity
o Capacity to implement international humanitarian law
o Whether the group can speak with a single voice
 International refugee law: the determination of the existence of an
armed conflict have important implications as when considering
the application of the exclusion clauses in Article 1F(a) of
the 1951 Convention
o Acts which take place in connection with an armed conflict
would need to be assessed under relevant provisions of
international humanitarian law and/or international
criminal law with a view to determining whether they fall
within the category of war crime provided under Article
1F(a)
 There are situations that may not meet the threshold of armed
conflict, yet persons displaced by those situations should
nonetheless receive some form of complementary protection
 It is often wrongly assumed that ―war refugees‖ or those fleeing
armed conflict are outside the scope of the 1951 Convention
Civilians
 IHL considers those who are not members of state armed forces,
or of organized armed groups that are a party to the conflict as
―civilians‖
 Civilians lose their protection as such under international
humanitarian law if they directly participate in hostilities
o Different approaches have been adopted to identify when
civilians are taking a direct part in hostilities, including:
 Personal characteristics (e.g. activity; weapons;
clothing; age; gender)
  Specific acts carried out
 Framework approach: encompasses consideration
of specific acts as well as membership and
participation in an armed group
 Conflict often leads to mixed movements of populations,
comprising not only refugees and other civilians, but also armed
elements seeking sanctuary in neighbouring countries
 UNHCR‘s international protection mandate is civilian and
humanitarian in character, and combatants and other armed
elements are not entitled to protection or assistance from UNHCR
 The presence of armed elements raises many protection risks for
asylum-seekers, refugees, returnees, internally displaced persons
and/or stateless persons, including:
o Diversion of humanitarian aid to armed elements
o Targeting of camps by parties to the conflict
o Risk of refoulement by host states who perceive camps as
supporting opposition forces
o Breakdown of law and order
o Military recruitment, including of children
 Screening and identification procedures should be in place at the
beginning of a refugee exodus, to ensure that any possible
exclusion grounds are assessed and to otherwise preserve the
civilian and humanitarian character of asylum and the integrity of
the system as a whole
o To maintain the civilian and humanitarian character of
asylum persons engaged in armed activities should be
separated from refugees and interned in accordance with
international humanitarian law standards
o Once access to refugee status determination is viable, past
involvement in combat is not per se a sufficient basis to
exclude an individual from refugee status
Exclusion from international refugee protection
 Article 1F of the 1951 Refugee Convention excludes from
international refugee protection persons who otherwise
meet the “inclusion” criteria of the refugee definition in
Article 1(A)(2), but with respect to whom there are serious
reasons for considering that they have committed certain serious
crimes or heinous acts
o This provision was included in the 1951 Refugee
Convention because:
 Persons responsible for these crimes or acts were
deemed undeserving of international refugee
protection, and
 To ensure that persons fleeing prosecution
rather than persecution should not be able to
hide behind the institution of asylum in order
to escape justice
9 Cadiente, Daphne Tricia G. | 3D
 For exclusion to be justified, it must be established on the basis of
clear and reliable evidence that the person concerned incurred
individual responsibility for acts which fall within one of the three
categories under Article 1F of the 1951 Convention
 Article 1F(a) refers to crimes against peace, war crimes, and
crimes against humanity ―as defined in the international
instruments drawn up to make provision in respect of crimes‖ =
there is thus a direct link between the exclusion grounds in the
1951 Refugee Convention and other areas of international law
Exclusion and the International Criminal Process: Indictments and
Acquittals
 Important differences between an exclusion assessment and a
criminal trial: exclusion assessment is concerned with the
person’s eligibility for international refugee protection,
rather than his or her innocence or guilt for a particular
criminal act
 Falling within Article 1F means that an individual does not qualify
for refugee status and is, therefore, also not within the mandate of
UNHCR
o Most significantly, it means that he or she does not
benefit from protection against refoulement under
international refugee law
o Exclusion from international refugee protection does not
affect the excluded person’s entitlement to protection,
including against refoulement, nor does it detract from the
universally recognized principle of presumption of
innocence in criminal proceedings
 Whether or not an indictment or a conviction is sufficient to meet
the ―serious reasons for considering‖ threshold required under
Article 1F
o At the level of national courts: must be assessed on a
case by case basis
o At the level of international criminal tribunal or court:
generally considered to meet the requirement
 If the person concerned is subsequently acquitted on substantive
(rather than procedural) grounds, following an examination of the
evidence supporting the charges, the indictment can no longer be
relied upon to support a finding of ―serious reasons for
considering‖ that the person has committed the crimes for which
he or she was charged
 An acquittal by an international criminal tribunal or court does not
mean that the person concerned automatically qualifies for
international refugee protection
Exclusion and Individual Criminal Responsibility
 Exclusion under Article 1F of the 1951 Convention requires a
determination that the person concerned has incurred individual
responsibility for a crime within the scope of that provision, either
 directly as perpetrator or through his or her participation in the
commission of crimes by others
 International jurisprudence provides guidance on the criteria for
establishing individual responsibility in those cases where the
commission of a crime is brought about by two or more persons,
and in particular, the different forms of joint criminal enterprise
(JCE)
o The notions of JCE I, II and III were developed primarily
by the ICTY in a manner independent of domestic law,
in recognition of the collective nature of the commission of
the most serious crimes and the need to punish those most
responsible for international crimes
o By contrast, the criteria for aiding and abetting, as
interpreted and applied by both the ICTY and the ICTR, are
more closely related to the ways in which individual
responsibility is established at national levels for persons
who make a substantial contribution to the commission of
crimes by others
Evidence and Witnesses
 In refugee status determination procedures, evidence will be
considered and assessed in light of its relevance and reliability.
 Should evidence obtained raise questions about the correctness of
an earlier grant of refugee status, it may provide a sufficient basis
for cancellation proceedings.
 Strong indications that serious violations of human rights and/or
other international crimes have occurred or are ongoing:
o Establishment of international criminal tribunals or courts
o Referrals of particular situations to the ICC by the Security
Council or by a state party
o An action proprio motu by the Prosecutor
 Responsibility for witness and victim protection rests primarily with
the international criminal justice system and with states parties to
the relevant international criminal law instruments
o UNHCR‘s refugee status determination and resettlement
channels cannot therefore be relied on as a surrogate
witness protection system
 Sharing of information by criminal law institutions should be
governed by principles of confidentiality and privacy
Class notes (Nico Toledo)
Review of Public International Law
What is Public International Law?
 Roughly, the Law that governs the relations between and among
states, and non-state actors who are given standing. Higgins: a
body of legal principles, norms and processes which regulates the
relations of States and other international persons, and governs
their conduct affecting the interests of the international community
as a whole.
10
How does that relate to Human Rights Law?
 Important role of individuals in Public International Law –
Individuals now are given direct standing on the international
plane.
 The expansion of understanding of what PIL is all about, to a large
extent, is attributed to the development in human rights law.
Human rights law breached that very statist structure of
international law.
Sources of PIL (Art. 38, ICJ)
1. Treaties - Provides direct source of executory rights and
enforceable obligation; Provides standards (minimums which can
be exceeded)
2. Customs - opinio juris (intention to be bound); jusus (state
practice: uniformity, duration, etc)
a. Role of custom to international human rights law
b. A safety net of standards. Jus cogens. There must be some
set of principles which will bind non-contracting States.
c. UDHR provision on purpose of human rights: protection of
human dignity. This has ripened to custom. Therefore non-
contracting states are therefore bound through customary
international law (generally)
3. General Principles
4. Judicial Decisions, and opinions of highly qualified publicists
a. Not only those by ICC, ICJ, and other ad hoc international
tribunals.
b. Domestic Supreme Courts also have considerable weight.
c. Opinions of Highly Qualified Publicists
i. These carry weight particularly in developing or
frontier fields (e.g. right to internet, etc.)
International Humanitarian Law (IHL)
 A set of rules that applies during armed conflict. Conflict may be
international or armed conflict not of an international character.
 Purpose: to limit effects of war and to humanize the conduct
of the same.
 Jus in bello (applies regardless of who is at fault) v. Jus ad bellum/
jus contra bellum (law in conduct of war; talks about legality of
war; who is at fault?)
 Jus in bello- Main substantive laws that govern: 4 Geneva
Conventions and the 2 Additional Protocols (familiarize yourself)
 However, IHL rules are really customary in nature. Consequence:
being a non-state party to a convention on certain human
rights treaties is not a defense.
 Jus ad bellum- Art. 2(4) of the UN Charter. Protection of both
civilians and other protected individuals which may be medical
personnel, and those that have surrendered, those not able to
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 engage in conduct of war – sick armed person and wounded in
battle, etc.

 Limitation of means and methods of warfare, e.g. restriction on

use of certain types of weapons.

 ICCPR Art. 6 – Non-derogable IHRL even if IHL applies. IHL –

obligations on state (protect, respect, fulfill) Common underlying
purpose of international humanitarian and international human
rights law is the protection of life, health, and dignity of human
beings.

International Criminal Law

 Punishes egregious acts which the international community sees as
abhorrent. There are international criminal acts, individual
criminal liability on an international level.
 Purpose: stop wide-scale impunity
 Rome Statute: 4 major:
o Genocide, Crimes against humanity, War crimes (refers to
IHL: 4GC 2 APS + custom), Crime of aggression

International Refugee Law

 Defines who a refugee is.
Elements:
1. person outside country of origin
2. persecuted for any:
a. nationality
b. race
c. religion
d. social group
e. political opinion
3. unable or unwilling to return to country of origin due to such
persecution.
Reality: a lot of persecutions which are not covered by any of the five
grounds in the IRL.

Relevance and importance of Human Rights in IRL:

 Human rights is a source for expounding on and development of
the grounds for persecution. The definition of a refugee should
reflect the social reality.
 For the IRL to be progressive, Human Rights, as dynamic as it is,
is a source of progressiveness and dynamism.
- i.e. sexual orientation, and female genital mutilation – developed as
frontier grounds for considering refugee definitions.
AS: IHL IHRL ICL IRL – look at differences and complementarities.

11 Cadiente, Daphne Tricia G. | 3D

 SESSION 3: HUMAN RIGHTS MECHANISMS
Atty. Ryan Quan

Obligations: Universal periodic Review – HRC periodically reviews fulfilment by each

 Respect, protect and fulfil of the UN‘s 192 member states of the HR obligations and commitments
 ALL MEMBER STATES COVERED; regardless of whether such state
UN Human Rights System – How to Make it Work for you was party to the conventions.
 4-year cycle; 48 states per year
Part 1.  3 documents (basis for review):
Universal Declaration of Human Rights o National Report
 Adopted by the GA on 10 Dec 1948 – foundational document of the o Compilation of UN information (from HR treaty bodies,
UN Human Rights system special procedures and UN documentation)
 Principle of universality of human rights is the cornerstone of IHRL o Summary of Stakeholders submissions (NHRIs, regional
 Not legally binding – widely accepted as a universal agreement orgs, HR defenders, academic institutions)
on fundamental human rights norms that duty bearers are  Review is facilitated by 3 rapporteurs – Troika from different UN
expected to respect protect and fulfil.  more of customary regional groups
international law
International Bill of Human Rights (ICCPR and ICESCR) Other mechanisms
Core International HR Treaties (9) Special Procedures – mechanisms established by the CHR and assumed by
 See 1st lecture HRC to address specific country situations (country mandates) or thematic
 Treaties create obligations on state parties to establish and enact issues in all parts of the world (thematic mandates)
laws promoting and protecting human rights at the national level.  Independent human rights experts appointed by the HRC to carry
 Of the 9 core instruments, only the International Convention for out a particular mandate (either individuals titled ―special
the Protection of All Persons from ED has not entered into force as rapporteur,‖ ―special representative of the Secretary General‖ or
it had not yet been ratified by the required 20 states independent expert‖ or working groups)
Other International Human Rights Instruments  No requirement of exhaustion of administrative remedies;
 Declarations, guidelines, standard values, recommendations, etc. can be activated even where a state has not ratified the relevant
Though not legally binding, these instruments have an undeniable instrument or treaty
moral force
Complaint procedure – addresses consistent patterns of gross and reliably
Part 2. attested violations of all uhman rights and foundational freedoms occurring
UN Bodies and HR in any part of the world and under any circumstances
Human Rights Council – principle UN intergovernmental body  Any individual or group can bring gross violations of HR to the
responsible for Human Rights HRC‘s attention – submitted by individual or NGO on behalf of
 Established by the GA Resolution on 2006 to replace the individual
Commission on Human Rights
 Mandate: Advisory committee – Think tank of 18 individual experts
o Promote universal respect for human rights and
fundamental freedoms for all w/o discrimination Mechanisms derived from Specific Treaties
o Address situations of violations of human rights, including Task of bodies- conduct systemic in-depth reviews of the State Parties‘
gross and systematic violations and make Obligations under a particular treaty
recommendations  There are 8 (none yet for ED[since it has not yet entered into
o Promote the effective coordination and mainstreaming of force?])
HR  Bodies comprise of international independent experts who are
 Subsidiary organ of the GA; 47 member-states elected for 3 year nominated on the basis of their human rights expertise and moral
terms ; 1/3 elected every year authorities
 HRC holds minimum 3 sessions/year, not less than 10 weeks  Principal function – examine reports submitted by States in
 Can also hold special sessions accordance with varying degrees of regularity (2-5 years); hold
12 Cadiente, Daphne Tricia G. | 3D
 dialogues, produce ―Concluding Observations‖ and also produce C. UN GA
―General Comments‖  interpretation of the content and a. Charter-based bodies
application of the provisions of the various HR treaties  Based on the Charters
 They report to the GA (except CESCR which reports to ECOSOC)  HRC is charter body but not created by the UN
 CESCR – doesn‘t provide for a treaty body but gives ECOSOC a Charter but by a 2005 UN GA Resolution
general mandate to monitor is implementation  Forum on minority issues
 Special Procedures
Other International Human Rights Mechanisms  HR Council Advisory Committee
1. International Criminal Tribunals  Expert Mechanism on the Rights of Indigenous
2. International Criminal Court Peoples
3. UN Specialized Agencies‘ Mechanisms  Social Forum
 Items iii to viii are subject to universal periodic
Role of the Office of the High Commissioner for Human Rights review of the HRC.
OHCHR – global authority on human rights and is a part of the Secretariat b. Treaty (-based) bodies
 Primary responsibility– to promote and protect all human rights  Created by the respective human rights treaties
established under the Charter of the UN and under all international  Committees per treaty
human rights laws and treaties.  Creation of HRC not in the covenants.
 Broad range of activities and supports broader human rights  ICESCR is an exceptional case, as it does not
agenda explicitly provide for the creation of a treaty body
 Secretariat to all human rights treaty bodies but gives ECOSOC a general mandate to monitor
its implementation. ECOSOC established CESCR as
an advisory body under the Covenant but it has
come to be regarded as a treaty body.
D. Human Rights Council
a. Political body; subsidiary organ of the GA.
b. Not an expert body
c. 47 members of HRC, 1/3 for total membership of UN (UN
has 192 member states)  There is a geographic
distribution.
d. Universal Periodic Review

Charter bodies
1. UPR
a. Peer review of sorts – reviews state under review; every
4 years.
Global mechanism i. State under review submits a National Report
ii. Other sources of information:
Structure of UN HR Bodies and Mechanisms
A. Secretariat 1. UN Offices
a. OHCHR 2. NGO, Civil society reports, stakeholders
b. Sec-Gen reports/ alternative reports/shadow reports
c. HR Country and regional offices iii. Review proper
-- OHCHR does not have presence in all countries 1. Interactive forum – interactive dialogue
2. State under review given opportunity to
B. Security council
a. Mentioned but not strictly a human rights body present information and responds to
b. 15 members, deciding on matters like use of force, questions and recommendations presented
humanitarian crisis, testing of military force by the HRC‘s Member and Observer States
i. 5 permanent members: US, UK, China, Russia, on its human rights practices as well as on
France; For UN membership, they have veto power the human rights situation.
3. Each country has 1 min, 58 seconds
13 Cadiente, Daphne Tricia G. | 3D
 iv. Review is carried out by troikas – 3 rapporteurs
selected from the different UN regional groups
v. HRC periodically reviews the fulfilment by each of
the UN Member states of their human rights
obligations and commitments
b. Difference to treaty bodies- treaty bodies may only
monitor state parties to the respective particular
covenant; HRC UPR covers ALL UN MEMBER STATES
2. 1503 Procedure
a. Deals with communications relating to consistent patterns
of gross violations of human rights
b. Complaint mechanism, consistent patterns of gross
violations of HR
3. Special Procedures
a. To address specific country situations (country mandates)
or thematic issues in all parts of the world (thematic
mandates)
b. Special Rapporteurs, independent experts, working groups
c. Country mandates (everything related to HR in that
country) and thematic mandates
d. Special rapporteurs need to be invited. –
Independent experts, not paid
4. OHCHR
a. Does not actually have a mandate
b. Give technical/advisory services
c. Mainly promotional; primary responsibility is to promote
and protect all human rights established under the Charter
of the United Nations and uner all international human
rights laws and treaties
UN Treaty Bodies
1. Committee members are experts
2. Functions:
a. Interpreting Human Rights Laws
i. General comments or General Recommendations
ii. Authoritative interpretations pertaining to human
rights instruments but not technically legally
binding. Some of these interpretations extend
rights (ex. Right to water, CESCR Gen Comment
15; CEDAW does not mention violence against
women but there is Gen Comment No 19 which
provides for this.)
b. Monitor state compliance
i. Compliance with the state obligations under the
obligation they are monitoring
ii. Concluding observations
iii. How? Regular reporting and examination;
assessment of best practices; look at improvement
areas; Provide recommendations
14
c. Individual complaints
i. Can only be availed of once the state has signed
the optional protocol and all administrative
remedies have been availed.
ii. Individuals file against the state
3. Ad Hoc tribunals
a. Created by the Security Council to bring to justice persons
responsible for serious HR Abuses
i. Against specific individuals who were most
responsible:
1. Nuremberg, Tokyo tribunals
2. ICTY (Yugoslavia)
3. ICTR (Rwanda)
4. ECCC (cambodia)
4. International Criminal Court
a. Created by the Rome Statute
b. Ph ratified in 2011
c. Genocide, war crimes, crimes against humanity, crimes of
aggression
d. Initiating case – there has to be a finding of “probable
cause” by the Prosecutor.
e. Domestic immunity from suit does not apply to
defendant’s advantage
Regional Human Rights Mechanisms
 Established under the auspices of intergovernmental bodies
 Only states are accountable for human rights violations
 Complaints mechanism
 Monitoring and promotion activities
1. European HR system
Council of Europe – established in the wake of WWII (initially, Western
Eu countries, expanded to include former members of the Soviet bloc)
 Purpose – bring about reconciliation among the EU nations
and to promote rule of law and HR.
 States commit themselves to certain common standards through
binding conventions.
 European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR)  regional system for
protecting (not just promoting) HR.
Judges of EU Court of Human Rights are elected by the Council of Europe‘s
Parliamentary Assembly
New members states are required to sign the ECHR
 Although states enjoy a margin of appreciation in implementing
the treaty, they cannot use local cultural preferences as a
general excuse for failing to protect the rights stated in the
ECHR
 It is not enough that the states simply enact domestic legislation.
 Governments have obligation to enforce the relevant laws and to
Cadiente, Daphne Tricia G. | 3D
 affirmatively protect the rights of their citizens.
If domestic remedies have been exhausted, an individual who has
suffered a violation of rights protected by the ECHR may file a case against
her government.
 Since 11th Protocol, individuals have had direct access
Considered highly independent
a. The most advanced/ highly evolved
b. Used to have EU Commission on HR and EU Court on
Human Rights
c. Eu Court of Human rights decides cases ―applications‖
against Member states – pertains to Civil and Political
Rights
d. Allege violation of the EU Convention on Human Rights
e. Accepts applications from individuals, groups, NGOs
f. EU committee of Social Rights – collective complaints
procedures
g. They use EU as a leverage for compliance to the EU
Convention
h. Margin of appreciation in implementing the treaty – they
cannot use local cultural preferences as a general excuse
for failing to protect the rights stated in the ECHR
2. Inter-American Commission on Human Rights
Organization of American States (OAS)  Nonbinding American
Declaration of the Rights and Duties of Man (before UDHR)
 Inter-American Commission on Human Rights (1959) – has
authority to examine communications alleging violations of the
Declaration and publish observations on general human rights
situations.
1969 – OAS adopted a binding regional treaty – American Convention on
Human Rights; The commission was given additional enforcement powers
and established the Inter-American Court of Human Rights (only
states and the Commission can submit)
 Individuals may file through the Commission against their
governments
 IACHR can review other members as part of its advisory
jurisdiction.
 Compliance has been a challenge
The commission
a. Decides on complaints against OAS member-states – Only
states and the inter-american commission on human rights
can submit cases to the inter-American court of human
rights, which means that the commission is the
15
gateway to the court for individuals who wish to file
complaints against their governments
i. Allege violation of American Declaration of the
Rights and Duties of Man or the American
Convention on Human Rights
ii. Accepts petitions from individuals, groups, NGOs
iii. Precautionary measures, country visits,
rapporteurs
The Court
b. There is a second body: Inter-american court of Human
Rights
i. The court only examines cases against states
that have ratified the American convention and
recognized the Court‘s jurisdiction
ii. Cases must have been decided by the
COMMISSION before they are referred to the Court
iii. Issues advisory opinions and interim measures.
3. African Commission on Human and Peoples‘ Rights
Organization of African Unity (OAU) adopted African Charter on Human
and Peoples Rights (Banjul Charter)
 OAU has since disbanded  was replaced by the African Union
which now oversees the African human rights system
African Charter
 Special protection to family and recognizes collective (peoples‘)
rights including right to equality, development, peace and security
 There is an attempt to balance individual and collective interests
by stating the rights and freedoms of each individual shall be
exercised with ―due regards‖ to right of others
 Criticism: failure to address gender equality and rights of women
o Protocol on Rights of Women in Africa was adopted – same
rights as provided in CEDAW (more detail in women in
armed conflict, rights of widows, punishment for domestic
violence, FGM)
o Christian groups are against ratification b/c reproductive
freedom
African Charter  African Commission on Human and Peoples’ Rights
 Quasi-judicial body charged with promoting and interpreting the
Charter and reviewing state compliance
 Established Special Rapporteur on the Rights of Women in Africa
OAU member states rejected a proposal to establish human rights court
b/c negotiation was a preferred method of dispute resolution.
BUT in 1998, the OAU adopted African Court of Human and People‘s Rights
– merged into African Court of Human Rights
 Power to issue binding decisions
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 INDEPENDENT EXPERTS BUT OF REPRESENTATIVES OF
GOVERNMENTS
a. Human and Peoples –wanted to emphasize individual and  One of its primary responsibilities – draft ASEAN Human Rights
collective rights (like peace, environment, etc.) Declaration (there was a debate on Asian values resurfacing)
b. May decide complaints against members of the African o Fear of activists – ADHR could undermine the international
Unions (violations of the African Charter) standards (same as the Arab Charter – which did not
c. Reviews states reports on their implementation of regional comply with the international human rights law.)
HR treaties o Drafting Group has not yet completed its work(BUT IT
d. Issue advisory opinions NOW HAS. THERE IS NOW AN AHRD!).
e. Decides cases
f. Accepts complaints from the African Commission a. ASEAN human rights mechanism – most successful
attempt
Inter-American European Afican i. 2 commissions
Individual petitions Individual petitions Individual petitions 1. AICHR
Thematic hearings Thematic hearings 2. ACWC
Precautionary Interim Measures Interim Measures a. These commissions are not
measures composed of independent
Advisory Opinions Advisory Opinions Advisory Opinions experts but of state
Special Rapporteurs Special Rapporteurs representatives, who can be
Execution of Decisions: Execution of Execution of recalled anytime.
CCHR Judgments: Committee Judgments: Council of b. No protection mandates, mostly
of Ministers Ministers just promotional
c. Standard setting mandate –
4. Asia-Pacific declaration, Conventions of Human
There is currently no Asia-Pacific regional human rights Rights
treaty/commission/court 3. ACMW
 Most of the achievements relate primarily to domestic efforts to b. AHRD
promote human rights rather than to increased regional i. General Principles
integration. ii. Civil and Political rights
 Concept of sub-regional mechanisms – ASEAN is the leading iii. ESCR
example iv. Right to Peace
v. Right to Development
In 2008, after persistent lobbying by NGOS, new Charter was ratified by vi. Cooperation in the Protection and Promotion of
the ASEAN(Singapore, Malaysia, Thailand, Philippines, Indonesia, Vietnam, human Rights
Laos, Cambodia, Brunei Darussalam, Myanmar) 5. National Human Rights Institutions
 Promotion and protection of human rights – Core purpose of a. Monitoring compliance with human rights norms
the organization and commits members to create an ASEAN b. Should function independently of the state but function
Human Rights Body. within the government
 Charter does not appear to provide for any effective regional 6. Paris Principles
enforcement mechanism (widely different political systems and a. Sets standards to be attained by the NHRIs to be
some members having poor human rights records) considered credible and to function effectively
 Unifying characteristic – ―cardinal principle of non-intervention in
the internal affairs of member states‖
AICHR (Intergovernmental Commission on Human Rights) – 2009
 Promotional and advisory in nature
 Not receive individual complaints; lacks significant enforcement
powers
 Not independent (inter-governmental) – NOT COMPOSED OF

16 Cadiente, Daphne Tricia G. | 3D

 SESSION 4: CIVIL AND POLITICAL RIGHTS
Atty. Arpee Santiago

1. Subido Pagente Certeza Mendoza and Binay Law Offices v. Nanlaban?; Self Defense elements: Unlawful aggression, reasonable
Court of Appeals, G.R. No. 216914, December 6, 2016 necessity of the means employed and lack of sufficient provocation on the
part of the offended party.
Section 11 of the AMLA providing for the ex-parte bank deposit inquiry  In cases where there is a clashing of presumption of
is constitutionally firm for the reasons already discussed. The ex- parte innocence and presumption of regularity, presumption of
inquiry shall be upon probable cause that the deposits or investments innocence should prevail.
are related to an unlawful activity as defined in Section 3(i) of the law  Chain of custody Rule (Section 21 of DDB)
or a money laundering offense under Section 4 of the same law. To o The apprehending officer/team having initial custody and
effect the limit on the ex-parte inquiry, the petition under oath for control of the drugs shall, immediately after seizure and
authority to inquire, must, akin to the requirement of a petition for confiscation,
freeze order enumerated in Title VIII of A.M. No. 05-11- ,04-SC, 1. physically inventory and photograph the
contain the name and address of the respondent; the grounds relied same
upon for the issuance of the order of inquiry; and the supporting  in the presence of the accused or the
evidence that the subject bank deposit are in any way related to or person/s from whom such items were
involved in an unlawful activity. confiscated and/or seized, or his/her
representative or counsel,
If the CA finds no substantial merit in the petition, it shall dismiss the  a representative from the media and the
petition outright stating the specific reasons for such denial. If found Department of Justice (DOJ), and
meritorious and there is a subsequent petition for freeze order, the  any elected public official who shall be
proceedings shall be governed by the existing Rules on Petitions for required to sign the copies of the inventory
Freeze Order in the CA. From the issuance of a freeze order, the party and be given a copy thereof;
aggrieved by the ruling of the court may appeal to the Supreme Court  Provided, that the physical inventory and
by petition for review on certiorari under Rule 45 of the Rules of Court photograph shall be conducted at the place
raising all pertinent questions of law and issues, including the propriety where the search warrant is served; or at
of the issuance of a bank inquiry order. The appeal shall not stay the the nearest police station or at the nearest
enforcement of the subject decision or final order unless the Supreme office of the apprehending officer/team,
Court directs otherwise. whichever is practicable, in case of
warrantless seizures;
2. Secretary of National Defense v. Manalo, G.R. No. 180906,  Provided, further, that non-compliance with
[October 7, 2008 these requirements under justifiable
grounds, as long as the integrity and
Military has the capacity to do these atrocities evidentiary value of the seized items
 Writ of Amparo and Writ of Habeas Data were established and are properly preserved by the
recognized (Rules of procedure, not laws, enabling gathering of apprehending officer/team, shall not render
more evidence) void and invalid such seizures of and
custody over said items . . . .‖
3. Executive Order No. 2, series of 2016 (Freedom of 2. The following facts must be established in the
Information) chain of custody in a buy-bust situation:
4. People v. Reyes, G.R. No. 199271, October 19, 2016  Seizure and marking, if practicable, of
5. People v. Fermin y Gregorio, G.R. No. 179344, August 3, the illegal drug recovered by the
2011 apprehending officer
 Turnover of drug seized to the
investigating officer by apprehending
officer
17 Cadiente, Daphne Tricia G. | 3D
  Turnover by investigating officer to
forensic chemist
 Turnover and submission of marked illegal
drug seized by forensic chemist to the
court.
6. PNP Command Memorandum Circular No. 2016-16 (A.K.A.
“Oplan Double Barrel”)
 Toktok – Hango (Knock and plead(?))
 Sets forth the guidelines, procedures and tasks of Police
Offices/Stations/Units in the PNP Anti-Illegal Drugs Campaign –
Project: DOUBLE BARREL in support of the Barangay Clearing
Strategy
o General framework: PNP officers working alongside
Baranagay officials/employees
 Context/Situation
o Worsening drug problem that has victimized mostly the
underprivileged and impoverished sector of the society
o Prevalence of drugs (1.8 Million drug users nationwide,
roughly 38% unemployed)
o High incidence of drugs in urban poor areas (NCR is
92.96% drug-affected, drug-affected meaning that at least
one person in the barangay is a user, pusher,
manufacturer, cultivator, etc.)
o Government seems to have overlooked the drug problem
at the grassroots level, due to its focus on high level drug
traffickers
o Three Drug Syndicates operating in the Philippines
1. Chinese or Filipino-Chinese drug syndicate (most
dominant)
2. African Drug Syndicate
3. Mexican-Sinaola Drug Cartel
 Execution/Plan Of Action
o ―Attack on all fronts‖: address illegal drugs problems in the
barangay level while going after illegal drug trafficking
personalities to paralyze the nationwide network of drug
trafficking
o Two-pronged Approach: (1) PROJECT TOKHANG, and (2)
PROJECT HVT
Project Tokhang will be lower barrel approach in all drug-affected
barangays in coordination with Local Government Units (LGU‘s), Anti-Drug
Abuse Councils (ADAC‘s), Non-Government Organizations (NGO‘s),
stakeholders, and other law enforcement agencies
 Involves actual house to house visitations to persuade suspected
illegal drugs personalities to stop their illegal drugs activities.
Because usually, those suspected (those in the “drug list”) are the
ones being killed vigilante-style
o Five Stages
18
1. Collection and Validation of Information – to acquire
specific information on suspected drug users and pushers
in every affected barangay
2. Coordination – actual coordination with LGU‘s, ADAC‘s,
Philippine Drug Enforcement Agency (PDEA), Dangerous
Drugs Board (DDB), Media, and NGO‘s
3. House to House Visitation – to be conducted
simultaneously nationwide
 With representative of ADAC, and barangay tanod
 No violation of rights of subject
 Any person who is willing to undergo rehab
voluntarily shall be processed accordingly
(surrenderees are those usually killed vigilante-
style)
4. Processing and Documentation
 Voluntary Surrender Form for surrenderees,
with subscription before a notary public of the act
of surrendering
o Tick box: User or Pusher
o Right against self incrimination
o Although inadmissible, they would be
identified.
 Surrendereees invited to local police station/unit
for interview, documentation and other alternative
actions, provided they execute undertaking to give
information regarding illegal drug activities
o Right to counsel?
 Drug paraphernalia may be surrendered;
undertaking to give info on violation of the DDA
 Any person suspected to be involved in illegal drug
trafficking who denies or refuses the house to
house visitation shall be referred to the Anti-Illegal
Drug Units for immediate case build-up and
negotiation.
5. Monitoring and Evaluation
 When reports of illegal drug activities persist
despite the house to house visitations, the chief of
the local police unit/stations and anti-illegal drugs
unit in the area shall immediately initiate police
action in coordination with the ADACs for the
legitimate arrest and filing of appropriate criminal
charges against persons who are subject of house
to house visitations;
 Monitoring of known drug personalities.
Project HVT (High Value Target) targets illegal drugs personalities and
drug syndicates
2. Conducted in national, regional, district, provincial
and city levels
Cadiente, Daphne Tricia G. | 3D
 o PNP Oversight Committee which will oversee execution of
two-pronged approach
o PNP internal cleansing at the national level
1. Addresses various offenses such as kotong, gun-
for-hire, and drugs
2. Continuous drug testing within the PNP‘s ranks
o Coordinating Instructions
1. Strict implementation of protocol at all times
2. As far as practicable, all unit commanders must
ensure that all anti-illegal drug operations shall be
coordinated with PDEA in accordance with the PNP
Manual on Anti-Illegal Drug Operation and
Investigation.
3. All operation shall conform with the provisions of
RA 9165, the Rules of Court and strictly observe
the Rights of the Accused enshrined in the Bill of
Rights under the Philippines Constitution, other
allied laws, public policy as well as internationally
accepted princiiples of international laws, public
policy and with due observance of human rights
4. All concerned personnel shall strictly observe the
rights of persons arrested, detained or under
custodial investigation pursuant to RA7438 and
other existing rules and regulations of the PNP in
the promotion of human rights.

7. International Covenant on Civil and Political Rights

8. Soering v. UK (European Court of Human Rights Application
no. 14038/88)

The Court took into effect four factors that led to their conclusion that
there was a violation of Article 3. These are:
(1) length of detention prior to execution;
(2) conditions on death row;
(3) Soering‘s age and mental state; and
(4) possibility of extradition to Germany.
19 Cadiente, Daphne Tricia G. | 3D
  The court held that ―having regard to the very long period of time  There is a realization on the part of the offender that he/she was
spent on death row in such extreme conditions, with the ever wrong
present and mounting anguish of awaiting execution of the death
penalty, and to the personal circumstances of the applicant,
especially his age and mental state at the time of the offence, the
applicant's extradition to the United States would expose
him to a real risk of treatment going beyond the threshold
set by Article 3. A further consideration of relevance is that in the
particular instance the legitimate purpose of extradition could be
achieved by another means, which would not involve suffering of
such exceptional intensity or duration.‖

Death Row Phenomenon may be considered as inhuman, cruel

treatment
Death penalty per se is allowed under the ICCPR
But death penalty is not a deterrent for crime. The fact of persecution and
sanction is.

9. SJS v. DDB and PDEA, G.R. No. 157870, November 3, 2008.

10. UN Committee on Human Rights Pestaño case
(Communication No. 1619/2007)
Right to having a proper effective remedy is a human rights issue
 Implied: espouse restorative justice

20 Cadiente, Daphne Tricia G. | 3D

 SESSION 5: ENFORCED DISAPPEARANCES AND EJKS
Atty. Ryan Quan

Extrajudicial Killings – reaching a decision. Circumstantial evidence, indicia, and presumptions

 Killing done without due process of law; without legal
safeguards or judicial proceedings (Sec of DND v. Manalo)
 Anti-Enforced or Involuntary Disappearance Act of 2012:
 Sec. 3(b), Anti-Enforced or Involuntary Disappearance Act of 2012
defines Enforced or Involuntary Disappearance. (See Sec. 3(b))
―Enforced or involuntary disappearance” refers to the
 arrest, detention, abduction or any other form of
deprivation of liberty
 committed by agents of the State or by persons or groups of
persons acting with the authorization, support or
acquiescence of the State,
 followed by a refusal to acknowledge the deprivation of
liberty or by concealment of the fate or whereabouts of the
disappeared person,
 which places such person outside the protection of the law.‖
International Standards
 Prohibition against summary killings
EJKs and EDs: multiple and continuous violation of rights on
 Life, liberty and security
o UDHR, ICCPR,
o Fundamental, supreme, non-derogable
o No arbitrary and unlawful deprivation
o State must adopt measures
 To refrain from violating
 Prevent
 Investigate
 Punish offenders
 Remedies/measures
Velasquez Rodriguez v. Honduras (IACHR, 1988)
 Velasquez Rodriguez was a student activist, was abducted in broad daylight
because of his affiliation in a group known to be critical of the government
Standards of Proof:
 Commission‘s Argument: the policy of disappearances, supported or
tolerated by the Government, is designed to conceal and destroy evidence
of disappearances. The disappearance may be proved through
circumstantial or indirect evidence or by logical inference. Otherwise, it
would be impossible to prove that an individual has disappeared.
 Government‘s Argument: Neither the existence of a practice of
disappearances in Honduras nor the participation of Honduran officials had
been proven.
 The standards of proof are less formal in international legal proceedings.
The practice of international and domestic courts show that direct evidence
is not the only type of evidence that may be legitimately considered in
21
may be considered so long as they lead to conclusions consistent with the
facts.
 Circumstantial or presumptive evidence is especially important in
allegations of disappearances, because this type of repression is
characterized by an attempt to suppress all information about the
kidnapping or the whereabouts and fate of the victim.
 Since the Court is an international tribunal, it has its own specialized
procedures. All the elements of domestic legal procedures are not
automatically applicable. This principle is particularly applicable in human
rights cases.
 The objective of international human rights law is not to punish those
individuals who are guilty of violations, but to protect the victims and to
provide for the reparation of damages resulting from the acts of the States
responsible.
 The State cannot rely on the defense that the complainant has failed to
present evidence when it cannot be obtained without the State‘s
cooperation.
o The State controls the means to verify acts occurring within its
territory. Although the Commission has investigatory powers, it
cannot exercise them within a State‘s jurisdiction unless it has the
cooperation of that State.
Decision
 the practice of disappearances carried out or tolerated by Honduran
officials existed between 1981 and 1984;
 Manfredo disappeared at the hands of or with the acquiescence of those
officials within the framework of that practice; and the Government of
Honduras failed to guarantee the human rights affected by that practice.
 The Court likewise verified that the judicial system failed to act upon the
writs brought before various tribunals in the instant case. Not one writ of
habeas corpus was processed. No judge had access to the places where
Manfredo might have been detained. The criminal complaint was dismissed.
The Executive Branch did not carry out a serious investigation to establish
the fate of Manfredo. There was no investigation of public allegations of a
practice of disappearances nor a determination of whether Manfredo had
been a victim of that practice.
 The duty to investigate facts of this type continues as long as there is
uncertainty about the fate of the person who has disappeared. The State is
obligated to use the means at its disposal to inform the relatives of the fate
of the victims and, if they have been killed, the location of their remains.
 The Court is convinced that the disappearance of Manfredo was carried out
by agents who acted under cover of public authority. Even had that fact not
been proven, the failure of the State apparatus to act, which is clearly
proven, is failure on the part of Honduras to fulfill the duties it assumed
under Article 1(1) of the Convention, which obligated it to ensure Manfredo
the free and full exercise of his human rights.
o Enforced disappearance and killing of a student alleged to
have committed political crimes
Cadiente, Daphne Tricia G. | 3D
 o Presumption of state involvement or acquiescence –
circumstantial evidence used not testimonial evidence.
What happened to him was what was also happening in
other cases.
 Victim – activist; plateless car; Civilian clothes,
wearing white
o Violations of right to humane treatment, personal liberty
and security of life
o Compensation – gross human rights violations  form of
compensation is not just monetary in nature. There should
be other compensatory measures given to the family; i.e.
public apology, scholarship fund, monument, plaque
 No arbitrary arrest or detention
o Freedom from fear, threat; guarantee of bodily and
psychological or security; guarantee of protection of one‘s
rights by the state
o Positive obligations:
 Appropriate care in conducting operations; training
 Official investigation when individuals have been
killed
 Take reasonable measures to protect those whose
lives are in danger because of criminal acts of
others; control private entities
 Take adequate measures to protect the lives of
detainees
 No torture, cruel and inhuman or degrading treatment or
punishment
 Respect for dignity as a human being
 Movement
 Of kin and society as a whole – to know the truth about fate of the
disappeared
o Right to truth and the right to know
Vague Definition of EJKs
 Sec of DND v. Manalo
 DOJ AO no. 35 – killings wherein the victim
o Is a (1) member of or affiliated with an organization to
include political, envi, agrarian, labor, or similar causes or
(2) advocate of said causes, (3) Media, (4) persons
apparently mistaken or identified to be such
o Killed due to perceived membership, advocacy, profession,
adnd that the circumstances of the killing reveal a
deliberate intent to kill
 OHCHR definition
o Deprivation of life without full judicial and legal process
and with the involvement, complicity, tolerance or
acquiescence of the Government or its agents
22
o Death through the excessive use of force by police or
security forces
o Highlights:
 States should be the one protecting the rights of
indiviuals in its territory
 The reason why you‘re giving a different definition
to this is because you can‘t classify it as pure
murder because those who commit it are those
who are supposed to be protecting
State inaction
 Past killings of journalists, environmentalists, inigenuous leaders
perpetrated by both State and non-State actors remained
unresolved.
State action
 War on drugs
o Duterte list violates presumption of innocence
o Rise in number of those killed in this ―war‖ is seen as a
measure of success
o Project tokhang – random visits to houses (becomes legal
as consented searches)
 Presumption of regularity in the performance of
public official‘s functions is a recognized principle
of law
 Police officers generally only have the power to
arrest when a court has issued without a warrant
or in cases of valid warrantless arrests. In the
process of making an arrest, a police officer
allowed to employ a reasonable force
 Should the presumption of regularity in the killings
resulting from police operations should be
overturned and if the police officer involved fails to
prove any justifying circumstance, which resulted
in the killing, then he must be held accountable for
such death.
 Erosion of the Rule of Law an HR
o The new normal in the Philippines
o War on drugs has largely been war against the poor
o Dichotomies; human rights used against human rights
o Emboldened both state and non-state actors to kill
o Cheapening of human life
o Propaganda and historical revisionism
o Respect of human rights and fundamental freedoms and
the principle of holding periodic and genuine elections
Challenges
 Shifting impunity to accountability
Cadiente, Daphne Tricia G. | 3D
 o Impunity – impossibility of bringing the perpetrators of
violations to account
o Right to know
 To know the truth
 The people‘s inalienable right to know their history
 State‘s duty to preserve memory
 Challenges:
 No definition of EJK; no documentation as
actual ejks, just recorded as killings
 Central database; capacity and resources
to conduct forensic investigation
 Integrity of an cooperation among
institutions
 Integrity of available evidence
 Engagement between government and
CSOs
o Right to justice
 Challenges:
 Issue of trust
 Corruption
 Slow judicial process
 Access to legal assistance
 Witness protection
 Prtection for the defenders
 Command responsibility
 Government complicity
o Right to reparation
 Individual measures
 Collective measures
 Measures to guarantee non-recurrence
 Challenges:
 Awareness by families of victims as to the
remedies available
 Resources to support the victim and/or
victim‘s family

23 Cadiente, Daphne Tricia G. | 3D

 SESSION 6: TORTURE
Atty. Patring Cervantes-Poco

1. Tahir Khan v. Canada – Torture;  In the Court's view, this distinction derives principally from a
Arrested while leading a demonstration; he was taken to jail, beaten and difference in the intensity of the suffering inflicted.
subjected to electric shocks. He was cut on his back and chemicals were o distinction between "torture" and "inhuman or degrading
applied to the cuts which cause severe pain. He was released after 2 treatment", should by the first of these terms attach a
weeks special stigma to deliberate inhuman treatment causing
very serious and cruel suffering.
The Committee considers therefore that in the present case substantial o "Torture constitutes an aggravated and deliberate form of
grounds exist for believing that a political activist like the author would be cruel, inhuman or degrading treatment or punishment".
in danger of being subjected to torture. It notes that the author has  Although the five techniques, as applied in combination,
produced a copy of an arrest warrant against him, for organizing a undoubtedly amounted to inhuman and degrading
demonstration and for criticizing the Government, and that moreover he treatment, although their object was the extraction of
has submitted a copy of a letter from the President of the Baltistan confessions, the naming of others and/or information and although
Student Federation, advising him that it would be dangerous for him to they were used systematically, they did not occasion suffering
return to Pakistan. The Committee further notes that the author has of the particular intensity and cruelty implied by the word
adduced evidence that indicates that supporters of independence for the torture as so understood.
northern areas and Kashmir have been the targets of repression.
Moreover, the Committee considers that, in view of the fact that Pakistan
is not a party to the Convention, the author would not only be in danger of 3. Convention on Torture
being subjected to torture, in the event of his forced return to
Pakistan, but would no longer have the possibility of Torture (as defined in the Convention)
applying to the Committee for protection.  Infliction of severe pain (mental or physical)
The Committee therefore concludes that substantial grounds exist for  For the purpose of
believing that the author would be in danger of being subjected to torture o Getting information
and, consequently, that the expulsion or return of the author to  From the person tortured
Pakistan in the prevailing circumstances would constitute a violation  Third person
of article 3 of the Convention against Torture and Other Cruel, o Punishment
Inhuman or Degrading Treatment or Punishment.  For acts committed
 For acts suspected to have been done
2. Ireland v. UK – Not torture but cruel and degrading treatment o Intimidation or coercion
(a) wall-standing: forcing the detainees to remain for periods of some  Person tortured
hours in a "stress position", described by those who underwent it as being  Third person
"spread eagled against the wall, with their fingers put high above the head o Discrimination of any kind
against the wall, the legs spread apart and the feet back, causing them to  Committed by
stand on their toes with the weight of the body mainly on the fingers"; o Public officials
(b) hooding: putting a black or navy coloured bag over the detainees' o Persons acting in official capacity
heads and, at least initially, keeping it there all the time except during o Private persons with acquiescence of the state
interrogation;  It does not include pain or suffering arising only from, inherent in
(c) subjection to noise: pending their interrogations, holding the detainees or incidental to lawful sanctions.
in a room where there was a continuous loud and hissing noise;
(d) deprivation of sleep: pending their interrogations, depriving the 4. Optional Protocol
detainees of sleep; 5. RA 9745: Anti-Torture Act
(e) deprivation of food and drink: subjecting the detainees to a reduced Acts punished
diet during their stay at the centre and pending interrogations. 1. Physical Torture - treatment or punishment inflicted by a person
in authority or agent of a person in authority upon another in

24 Cadiente, Daphne Tricia G. | 3D

 his/her custody that causes severe pain, exhaustion disability, or  IHL no torture even in times of war
dysfunction of one or more parts of the body
2. Mental/psychological torture - refers to acts committed by a Torture= intent, Intensity, cruelty
person in authority or agents of a person in authority which are Exception – arising from some lawful sanction (cruel and degrading
calculated to affect or confuse the mind and/or undermine a punishment)
person‘s dignity and morale
3. Other Cruel, Inhuman, and degrading Treatment or
punishment - Refers to a deliberate and aggravated treatment or
punishment NOT enumerated under Section 4, which attains a
level of severity sufficient to cause suffering, gross humiliation or
debasement to the latter. The assessment of the level of severity
shall depend on all circumstances of the case—duration or
punishment, physical and mental effects, and in some cases,
religion, age, state of health of the victim

Torture degrades human dignity

 Section 12 – right to Physical, medical and psychological exam
o Before and after interrogation
o Can you demand in all cases?
 Who are principals
o Command responsibility
o Immediate commanding officer
 Who may apply for amnesty – only for political offenses. Is torture
a political offense?
o Section 16: Acts of Torture shall not benefit from any
special amnesty law or similar measures that will have the
effect of exempting them from any criminal proceedings or
sanctions

6. Abdullahi Ahmen An-Naim

Cruel and degrading treatment v. Punishment
Difference:
 Treatment – Broader, legal or illegal, plainly degrading to human
dignity
 Punishment – legal, state sanctioned, legislated.

7. CAT concluding observations 2009

 Right to life is not absolute; No person shall be deprived of life

liberty or property without due process of law.
 Section 12, Article III of the constitution – cruel, degrading and
inhuman punishment

25 Cadiente, Daphne Tricia G. | 3D

 SESSION 7: RACIAL DISCRIMINATION
Atty. Arpee Santiago
Arpee: If you look at the readings, it‘s not just focused on racial
discrimination but discrimination in the broader sense.
Class notes from Nico Toledo
1. International School Alliance v. Quisumbing
Equal work for equal pay
2. Cruz v. Sec. of Environment
IPRA constitutional on technical grounds (tie twice)
Indigenous peoples rights should be respected
Largely unpopulist, the present legal system has resulted in the alienation
of a large sector of society, specifically, the indigenous peoples. The
histories and cultures of the indigenes are relevant to the evolution of
Philippine culture and are vital to the understanding of contemporary
problems (separate opinion)
3. Ang Ladlad v. COMELEC
COMELEC cited verses from the Bible and the Quran and denied application
of Ang Ladlad on moral grounds.
Essence – ensure dignity of every person in whatever context
How society sees you should not be based on SOGIE but by what you do
as a person.
4. Ocampo v. Enriquez
There is a law allowing for reparations Discrimination comes in different
forms and targets different sectors and aspects of a person
5. CEDAW
Gender-based violence against women constitutes discrimination against
women under article 1 and therefore engages all of the obligations in the
Convention. Article 2 establishes that the overarching obligation of States
parties is to pursue by all appropriate means and without delay a policy of
eliminating discrimination against women, including gender-based violence
against women. This is an obligation of an immediate nature; delays
cannot be justified on any grounds, including on economic, cultural or
religious grounds. general recommendation No. 19 indicates that in
respect of gender-based violence against women this obligation comprises
two aspects of State responsibility: for such violence resulting from the
actions or omissions of (a) the State party or its actors, and (b) non-State
actors.
Gender-based violence
26
 Prevalent; - can be seen in the domestic setting; customary that
women are objectified; reality: we are a patriarchal society; most
of the time women in the economically challenged areas do not
have decent jobs; they rely mainly on their husbands. Any work
done by the women are merely to augment the income; role of
women secondary (prevailing psyche)
 school textbooks perpetuate notions: men – provider; women –
support; promotes stereotype
 how does this stereotyping promote violence?
o violence comes in many forms
 sexual
 physical
 Psychological
 Economic (financial independence)
o Why are we focusing on these rights?
 The rights aspect of human rights is important for
us to be human
6. CERD
"racial discrimination" shall mean
 any distinction, exclusion, restriction or preference based on race,
colour, 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.
7. Karen Vertido
Convention places obligations on all State organs and that States parties
can be responsible for judicial decisions which violate the provisions of the
Convention. It notes that by articles 2 (f) and 5 (a), the State party is
obligated to take appropriate measures to modify or abolish not only
existing laws and regulations, but also customs and practices that
constitute discrimination against women. In this regard, the Committee
stresses that stereotyping affects women‘s right to a fair and just trial and
that the judiciary must take caution not to create inflexible standards of
what women or girls should be or what they should have done when
confronted with a situation of rape based merely on preconceived notions
of what defines a rape victim or a victim of gender-based violence, in
general. The Committee further recalls its general recommendation No. 19
on violence against women. This general recommendation addresses the
question of whether States parties can be held accountable for the conduct
of non-State actors in stating that ―… discrimination under the Convention
Cadiente, Daphne Tricia G. | 3D
is not restricted to action by or on behalf of Governments …‖ and that the author and the accused knew each other, constitute a further example
―under general international law and specific human rights covenants, of ―genderbased myths and misconceptions‖
States may also be responsible for private acts if they fail to act with due
diligence to prevent violations of rights or to investigate and punish acts of
violence, and for providing compensation‖. In the particular case, the
compliance of the State party‘s due diligence obligation to banish gender
stereotypes on the grounds of articles 2 (f) and 5 (a) needs to be assessed
in the light of the level of gender sensitivity applied in the judicial handling
of the author‘s case.

First of all, the judgement refers to principles such as that physical

resistance is not an element to establish a case of rape, that people react
differently under emotional stress, that the failure of the victim to try to
escape does not negate the existence of the rape as well as to the fact
that ―in any case, the law does not impose upon a rape victim the burden
of proving resistance‖. The decision shows, however, that the judge did
not apply these principles in evaluating the author ‘s credibility against
expectations about how the author should have reacted before, during and
after the rape owing to the circumstances and her character and
personality. The judgement reveals that the judge came to the conclusion
that the author had a contradictory attitude by reacting both with
resistance at one time and submission at another time, and saw this as
being a problem. The Committee notes that the Court did not apply the
principle that ―the failure of the victim to try and escape does not negate
the existence of rape‖ and instead expected a certain behaviour from the
author, who was perceived by the court as being not ―a timid woman who
could easily be cowed‖. It is clear from the judgement that the assessment
of the credibility of the author ‘s version of events was influenced by a
number of stereotypes, the author in this situation not having followed
what was expected from a rational and ―ideal victim‖ or what the judge
considered to be the rational and ideal response of a woman in a rape
situation

The Committee finds that to expect the author to have resisted in the
situation at stake reinforces in a particular manner the myth that women
must physically resist the sexual assault. In this regard, the Committee
stresses that there should be no assumption in law or in practice that a
woman gives her consent because she has not physically resisted the
unwanted sexual conduct, regardless of whether the perpetrator
threatened to use or used physical violence.

Further misconceptions are to be found in the decision of the Court, which

contains several references to stereotypes about male and female
sexuality being more supportive for the credibility of the alleged
perpetrator than for the credibility of the victim. In this regard, the
Committee views with concern the findings of the judge according to which
it is unbelievable that a man in his sixties would be able to proceed to
ejaculation with the author resisting the sexual attack. Other factors taken
into account in the judgement, such as the weight given to the fact that
27 Cadiente, Daphne Tricia G. | 3D
 SESSION 8: ESCR
Atty. Gilbert Sembrano

International level Part III

 International law on human rights—evolved from world war 2  Rights/ state party obligations
 Civil and political rights- received more attention Part IV
 Economic and social rights – considered as second class set of  Reporting mechasinsm
rights  Now ECOSOC Resolution – established committee on economic
and social cultural rights;
Interpret/aid the international community in interpreting the covenant Part V
Right to water –adequate living 
VAW – part of the spirit of the discrimination provisions
There is also a protocol to the IC – establishes communications
Misconceptions procedures, inquiry procedures, and state to state mechanisms
1. Priority of ICCR – States must forcus on both.
2. Positive v. negatinve – that ICESCR are positive rights and ICCPR Article 2
are negative rights 1. Each State Party to the present Covenant undertakes to take steps,
3. Resources needed v. no resources needed – (re: positive/negative) individually and through international assistance and co-operation,
4. Language – especially economic and technical, to the maximum of its available
a. Article 2 of the covenant – progressive realization, to the resources, with a view to achieving progressively the full realization of the
maximum available resources rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.
Legal duties under all HR treaties 2. The States Parties to the present Covenant undertake to guarantee that
1. Respect the rights enunciated in the present Covenant will be exercised without
a. Negative obligation – state needs to refrain from acts discrimination of any kind as to race, colour, sex, language, religion,
depriving people of thir rights political or other opinion, national or social origin, property, birth or other
b. E.g. non-discrimination; right not to be tortured status.
2. Protect 3. Developing countries, with due regard to human rights and their
a. Obligations concerning 3rd parties that they are not national economy, may determine to what extent they would guarantee
deprived of their rights the economic rights recognized in the present Covenant to nonnationals.
b. Examples – smoke belchers- if state does not do anything
to solve that, then state then is remiss in its duty
3. Duty to fulfil Limburg Principles on the Implementation of the International Covenant
a. Positive obligation- establish political economic and solical  Although the full realization of the rights recognized in the Covenant is to
system to allow access to or enjoyment of the guaranteed be attained progressively, the application of some rights can be made
rights. To bring together resources. justiciable immediately while other rights can become justiciable over time.
o Given the significance for development of the progressive
b.
realization of the rights set forth in the Covenant, particular
attention should be given to measures to improve the standard of
Duty bearers and rights holders living of the poor and other disadvantaged groups.
Interpretative Principles (Part II of the Covenant)
Convention Article 2(1)
Divided into 5 parts ―to take steps… by all appropriate means, including particularly the adoption of
Preamble + 31 articles legislation‖
Divided into 5 parts  At the national level, States Parties shall use all appropriate means,
including legislative, administrative, judicial, economic, social and
Common article 1 – same as ICCPR;
educational measures, consistent with the nature of the rights in order to
 Self-determination fulfill their obligations under the Covenant.
Part II  Legislative measures alone are not sufficient to fulfill States Parties‘
 Articles 2-5 (Focus) obligations.
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 o It should be noted however, that Article 2(1) would often require
legislative action to be taken in cases where existing legislation is
in violation of the obligations assumed under the Covenant.
 States Parties shall provide effective, including judicial, remedies.
 The appropriateness of the means to be applied in a particular State shall
be:
o Determined by that State Party; and
o Subject to review by the United Nations Economic and Social
Council, with the assistance of the Committee
 Such review shall be without prejudice to the competence of the other
organs established pursuant to the Charter of the United Nations.
“to achieve progressively the full realization of the rights”
 This obligation requires Parties to move as expeditiously as possible
towards the realization of the rights.
o Under no circumstances shall this be interpreted as implying for
States the right to defer indefinitely efforts to ensure full
realization. On the contrary, all States Parties have the obligation
to begin immediately to take steps to fulfill their obligations under
the Covenant.
 The prohibition against discrimination under Article 2(2), among others,
requires immediate implementation in full by all Parties.
 The obligation of progressive realization exists independently of the
increase in resources; it requires EFFECTIVE USE of resources available.
o Progressive implementation can be effected not only by increasing
resources, but also by the development of societal resources
necessary for the realization by everyone of the rights recognized
in the Covenant.
“to the maximum of its available resources”
 Parties are obligated, regardless of the level of economic development, to
ensure respect for minimum subsistence rights for all.
 ―available resources‖ refers to both the resources:
o Within a State; and
o Those available from the international community through
international co-operation and assistance
 In determining whether adequate measures have been taken for the
realization of the rights recognized in the Covenant, attention shall be paid
to equitable and effective use of and access to the available resources.
 In the use of available resources, due priority shall be given to the
realization of rights recognized in the Covenant. ―individually and through
international assistance and co-operation, especially economic and
technical‖
Article 2(2): Non-discrimination
 Calls for immediate application
 Involves an explicit guarantee on behalf of the States Parties
o It should, therefore, be made subject to judicial review and other
recourse Procedures.
 The grounds mentioned in Article 2(2) are NOT exhaustive.
 States Parties shall eliminate de jure discrimination by abolishing
without delay any discriminatory laws, regulations and practices (including
acts of omission as well as commission) affecting the enjoyment of
economic, social and cultural rights.
 De facto discrimination occurring as a result of the unequal enjoyment
29
of economic, social and cultural rights, on account of a lack of resources or
otherwise, should be brought to an end as speedily as possible.
 Special measures taken for the sole purpose of securing adequate
advancement of certain groups or individuals requiring such protection as
may be necessary in order to ensure to such groups or individuals equal
enjoyment of economic, social and cultural rights shall not be deemed
discrimination, provided however:
o That such measures do not, as a consequence, lead to the
maintenance of separate rights for different groups; and
o That such measures shall not be continued after their intended
objectives have been achieved.
o This Article prohibits private persons and bodies from practicing
discrimination in any field of public life.
 In its application, due regard should be paid to all relevant international
instruments including the Declaration and Convention on the Elimination of
all Forms of Racial Discrimination (CERD), as well as to the activities of the
supervisory committee under the said Convention.
 Progressive realization clause (Each state party undertake to
take steps individually and thru international assistance to the
maximum available resources)
o Controversial because there are rich states and poor
states.
o Poor states are not excused – lindburg principles – set of
principles which interpret the convention, Article 2 in
particular. There were experts who came to Denver and
discussed the nature of article 2. At the time poor states
are making excuses
o ―progressively realize…to the maximum available
resources‖ – some states say that when they do not have
resources, they are excused. NO. That is not an excuse
o Principle Minimum core content (South Africa HIV case)
 There are 2 policies which constitute violations of
ESCR
 Principle of Minimum Core- policies
which deprive people of the minimum right
s of subsistence – survival rights.
o States cannot excuse themselves
from fulfilling their obligation under
the Convention when we are
talking about the survival
HIV Case – Constitutional Court of South Africa
The concept of "minimum core" was developed by the United Nations Committee on
Economic, Social and Cultural Rights which is charged with monitoring the
obligations undertaken by state parties to the International Covenant on Economic,
Social and Cultural Rights. According to the Committee
"a State party in which any significant number of individuals is deprived of essential
Cadiente, Daphne Tricia G. | 3D
foodstuffs, of essential primary health care, of basic shelter and housing, or of the Justiciability issue for ICESCR
most basic forms of education is, prima facie, failing to discharge its obligations  Capable of being invoked and enforced in domestic courts
under the Covenant. If the Covenant were to be read in such a way as not to  Flows from the right to an effective remedy. Legal recourse is
establish such a minimum core obligation, it would be largely deprived of its raison
central to every H.R.
d'être. By the same token, it must be noted that any assessment as to whether
a State has discharged its minimum core obligations must also take
 Both incorporation into local laws and enforcement in courts
account of resource constraints applying within the country concerned.  In the Ph, there are still some right that are being question
Article 2(1) obligates each State party to take the necessary steps 'to the maximum whether they are justiciable
of its available resources'. In order for a State party to be able to attribute its  We have enough mechanisms
failure to meet at least its minimum core obligations to a lack of available resources o International law forms part of the law of the land
it must demonstrate that every effort has been made to use all resources that are at o Treaties (2/3 ratification of the senate)
its disposition in an effort to satisfy, as a matter of priority, those minimum o Declaration of principles in Article 2, sec 2
obligations."
o Article 13 – social justice and human rights
Although Yacoob J indicated that evidence in a particular case may show that there
 Labor
is a minimum core of a particular service that should be taken into account in  Agrarian reform
determining whether measures adopted by the state are reasonable, the socio-  Urban land reform and housing
economic rights of the Constitution should not be construed as entitling everyone to  Health
demand that the minimum core be provided to them. Minimum core was thus  Women
treated as possibly being relevant to reasonableness under section 26(2), and not  Role of people‘s organization
as a self-standing right conferred on everyone under section 26(1).25 o Article XIV, Sections 1-5 - Right to education
o Protection of the family
A purposive reading of sections 26 and 27 does not lead to any other conclusion. It
is impossible to give everyone access even to a "core" service immediately.
o Rights of IPC and ICC
All that is possible, and all that can be expected of the state, is that it act o Bill of rights
reasonably to provide access to the socio-economic rights identified in  Due Process
sections 26 and 27 on a progressive basis.  Righ to association
o Judicial power and review of the courts, you can invoke
We therefore conclude that section 27(1) of the Constitution does not give rise rights
to a self-standing and independent positive right enforceable irrespective
of the considerations mentioned in section 27(2). Sections 27(1) and 27(2) must
Specific Rights
be read together as defining the scope of the positive rights that everyone has and
the corresponding obligations on the state to "respect, protect, promote and fulfil"
 Equal rights for men and women
such rights. The rights conferred by sections 26(1) and 27(1) are to have "access"  Right to work
to the services that the state is obliged to provide in terms of sections 26(2) and o Art 6 – equal opportunity to gain living
27(2). o Articl 7-8 – related to work; reminueration, fair wages;
equal opportunity to improve.
 Principle of non-regression – access to o Right to rest and leisure – that‘s why LC imposes rest days
ESCR (e.g. cutbacks on primary education) o Right to form trade unions and join – right to association
o State cannot regress. o Trade unions to function freely
o Last year budget was 200M and o Right to strike
100M for security. It cannot cut  Right to social security
back to give to security o We have a lot of laws in the PH (SSS, GSIS, solo parents
o Additional reason for proponents of primacy of acts, Senior citizen‘s act)
ICCPR/ICSCR – rights under ICSCER rights are not  Protection and assistance to the family (related to the right to
immediately demandable ---problem with justiciability found a family under ICCPR and UDHR)
 Nondiscrimination clause – o Marriage as free and with consent
o Not just direct discrimination is prohibited - So lang as the  Protection to mothers (maternity leave – extension to maternity
effect is discriminatory, there is a violation benefits)
o Not subject to progressive realization – it doesn‘t matter,  Right to adequate standards of living – food, shelter, clothing (this
the level or development or resources – this is immediately is where right to water comes from. Fundamental right of everyone
executor and demandable to be free from hunger.
o Poverty is really a human rights issue.
30 Cadiente, Daphne Tricia G. | 3D
 o Anti-drug war, it is an issue of peace and order but also
highly politicized. It is connected with economic and socio-
cultural rights ---
 It is health issue, not just peace order.
Professionals (medical) claim that it is a health
issue
 Who are the usual victims – the poor, who have no
connections…If you look at the thousands killed
because of the campaign, they are from the
marginilized.
 Right to Adequate food
o General Comment 12 of CESCR – full content of adequate
food.  minimum core of adequate food; availability of
food in quantity and quality sufficient to satisfy dietary
needs of individuals free from adverse substances and
acceptable within a given culture.
o Violations to right of food may occur through the acts of
commission or acts of omission of failure
o Look at availability, quality and sufficiency and has to be
culturaly acceptable
 Right to adequate housing
o Opportunity under the right to housing.
o General Comment 7 – forced evictions
o We have the UDHA. Parameters in general comment, there
are justified forced evictions
 There has to be due process and must be made in
accordance with the law (UDHA)
 Achieve the highest attainable standard of physicial and mental
health
o Reduction of stillbirth, environmental concerns, epidemics
etc.
o Gen comment 14 - Miminum – availability/ accessibility/
acceptability
 Article 15 (Cultural rights)
o Difficult to define. While it is a very important right, it is
highly debated.

31 Cadiente, Daphne Tricia G. | 3D