HUMAN RIGHTS, explained

Human Rights are rights inherent to all human beings, whatever the nationality, place of
residence, sex, national or ethnic origin, color, religion, language, or any other status. These
rights are all interrelated, interdependent, and indivisible. (UN Office of the High Commissioner
for Human Rights)

The Definition of human rights are is derived from human nature and is thus understandably not
exact. Human Rights are those which inhere in persons "from the fact of their humanity." It
appears that the concept of human rights is broader than a human person's natural rights and
civil rights as it encompasses both rights created by law. (Republic vs. Sandiganbayan, 207 SCRA
10, 2003)

Human rights are commonly divided into ‘civil and political rights’ and ‘economic, social and
cultural rights’. Civil and political rights protect individuals’ freedom from interference by the
State and make sure that everyone can take part in civil society. They include freedom of speech,
freedom of assembly and the right not to be tortured.

Economic, social and cultural rights protect the basic necessities for life which includes the rights
to food and water, to have a roof over your head, and to adequate healthcare. In this post, we’re
looking at civil and political rights under the ICCPR.

[JMTC notes: when we speak of attributes of Human Rights, it meant that HR are Universal,
Inherent, Equal and Inalienable]

THREE GENERATION OF HUMAN RIGHTS

Civil and Political rights

Source: UDHR; ICCPR

Economic, Social, and Cultural rights

Sources: UDHR; ICESCR

Solidarity or Collective rights

Sources: Declaration on the Right to Development; UND on the Rights of the IPs

ON THE UNIVERSALITY OF HUMAN RIGHTS

Four Schools of thought (Dembour, 2010)
For natural scholars, human rights derive from nature; their universality is therefore a given.
Faced with the fact that human rights have taken different forms over time, they concede that
human rights can, in practice, receive particular articulations. These are legitimate as long as
they remain true to the principle of human rights, which, by contrast, is unique. The notion of
“overlapping consensus” encapsulates this idea.

For protest scholars, the ubiquity of injustice points to the universal relevance of human rights.
Less inclined than natural scholars to look at human rights as entitlements to specific objects,
the different articulations of human rights over time is not a logical problem for their school of
thought. Indeed, as the world evolves, so do the forms of suffering, potentially requiring new
formulations of human rights.

For deliberative scholars, the universality of human rights is at best a project: it is certainly not a
given. In their perspective, human rights will only become universal through the global adoption
of the liberal values they express. Whether this will happen or not remains to be seen. While
deliberative scholars would welcome the universalization of human rights principles, not all
concern themselves deeply with what is happening in societies that they regard as
geographically, politically, and culturally very different from their own.

Discourse scholars are extremely irritated by the claims of scholars in the other three schools
about the universality of human rights. They find the natural school’s perspective intellectually
untenable in view of the diversity of moral forms in human society over time and space. They
denounce its imperialism. Discourse scholars are also wary of the deliberative school and feel
that the school’s repeated invocation of consensus dangerously obscures power relations. They
tend to be more sympathetic to the position of the protest school, which shares their
commitment to denouncing injustice.

Synthesis:

On Universality of HR:

·0 Natural: “their universality is a given”

·1 Deliberative: “it is a project: will only become universal through the global adoption of the
liberal values they express”
·2 Protest: “the ubiquity of injustice points to the universal relevance of human rights.”
·3 Discourse: “irritated by the claims of other schools”

On Human Rights:

·4 Natural: “the law exists in direct continuation with the transcendental existence of human
rights.”
·5 Deliberative: “no human rights beyond human rights law: the law, especially as it is
embodied in constitutional principles of deliberation, is all there is to human rights.”
·6 Protest: “distrust of human rights law: it may be hijacked by the elite”
·7 Discourse: “human rights law is as good or as bad as any other law”

[JMTC notes: Natural school: sees HR as entitlement. It is given by virtue of being a human.
While in deliberative school, HR is agreed upon; hence when scholars talk about HR, it will never
come to fruition. Protest school tells us that rights are continually fought for and that these
rights arouse by virtue of claims and various advocacies. Discourse tells that HR is HR because it
is talked about and stresses the limitations of an ethnic based on individualistic.]

Hard Law- Treaties (ex. maritime law/ law of the sea)

-International Customary Law [1. State Practice (If the state do it and repeat it), 2. Opinio
Jun's (recognition by the state]

Soft Law- UDHR, UN Declarations. UN Resolutions

ART. 38- INTERNATIONAL CRIMINAL JUSTICE SYSTEM

primary

1. International Conventions or treties

2. International Customary Law

3. Generally accepted legal princeples (e.g. procedural due process, exhaustioin of remedies
(domestic)

subsidiary

4. Judicial decisions and writings of renowned publicists

^JDs of States, Regional Courts, Arbitration courts (eg. South China Sea Ruling)

UNIVERSALITY vs. CULTURAL RELATIVISM

For Human Rights activists, the 1948 UDHR is a sacred document. Its 30 different articles
outline the political, economic, social rights that we are all entitled to- no matter who we are-
because we are born human. By such reckoning, the universality of Human Rights is beyod
question. As stated specifically and clearly in Article 2 of said Declaration, all humans are to be
regarded as free and equal, "with no distinction given to their race, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status."

That it is a product of man, some argue that it is flawed in that it ignore and undermine the
cultural differences that exist between societies in different parts of the world. How can then a
single document claim to represent each and every individual in the world, when our
experiences are so different?

It is not cutural-sensitive as:

-view on the world and role in it differs; moral standards and values as well..

-Western-biased

-Individual rights over group rights

Group rights vs individual rights

[JMTS notes: Human Rights are compatible with cultural diversity. Every culture can pursue its
own vision of a good life, as long as it does not impinge on the rights of the individuals who exist
within that culture.

To diminish them based on 'western concept' and therefore incompatible with other cultures is
dangerous. What matters is the purpose of human rights- not their origin- and their ability to
protect the individual interests of the powerless, in all cultures.]

UDHR TIMELINE:

-Adapted December 10, 1948

-Decolonisation period (1950s- 1960s)

-Cold war of US vs USSR

Western States- Focus on Individual Rights

African States- Focus on group rights; family rights; community rights

Asian values-
Obligation- UDHR lists numerous rights- civil, political, economic, social and cultural- to which
people everywhere are entitled. In 1968, the UN International Conference on Human Rights
agreed that the declaration 'constitutes an obligation for every members of the international
community.' State parties are hence bound to comply with these obligations.

1. To respect human rights – that is, not to violate the rights in the ICCPR;

2. To protect the enjoyment of rights – against violations by third parties, such as other
individuals or corporations; and

3. To fulfil individuals’ rights – to take steps to create an environment in which rights can
be fully achieved.

INTERNATIONAL HUMAN RIGHTS LAW

sources:

1. Genocide Convention (1948)

2. Convention on the Elimination of All Forms of Racial Discrimination (1966)

3. Convention on the Elimination of All Forms of Discrimination Against Women (1979)

4. Convention Against Torture and Other Cruel, Inhumane, or Degrading Treatment or

Punishment (1984)

5. Convention on the Rights of the Child (1989)

6. Convention on Migrants Workers (1990)

7. Convention on the Rights of Persons with Disability

8. International Convention on Civil and Political Rights

9. International Convention on Economic, Social, and Cultural Rights

10. Convention Relating to the Status of Refugees (1951)

Approach:

Monist vs. Dualist

^ Incorporation ^Domestic Legislation

[JMTC notes: Each of these treaties has established a committee of experts to monitor
implementation of the treaty provisions by its State parties.]

UDHR and ICCPR, distinguished

UDHR- It is a soft law and only recommendatory. It has no one, organized structure though
universal in character. It enshrines and focuses more on individual rights to which the party State
has the obligation to respect and comply.

Art 17- Right to own property

Art 8- Remedies are General

Art 29- 2 Limitations

Art. 5- Death Penalty

ICCPR- A hard law, it is binding. The UN created the Human Rights Committee to monitor that
state parties comply to this convention. It is also universal and focuses both on individual and
community rights.

Art 1- Self determination

Art 27- Survival of Cultural Rights

Art 2- Remedies

Art 4- Derogation of Rights (Temporary limitation of Rights)

Art 18, 19, 21, 22

Optional Protocols:

The First Optional Protocol entered into force simultaneously with the ICCPR. It enables the
Human Rights Committee, set up under the Covenant, to receive and consider communications
from individuals claiming to be victims of the violations of any of the rights set forth in the
Covenant.

The Second Optional Protocol, which is aimed at the abolition of death penalty, was adopted by
the UN General Assembly on December 15, 1989.
[JMTC notes: The First Optional Protocol to the ICCPR does allow individuals to bring complaints
to the Human Rights Committee, but since it’s an optional protocol, States can choose whether
to agree to to it or not. For States that have agreed to the Protocol, the Human Rights
Committee can consider complaints about human rights violations from individuals. If the
Committee finds a violation, it asks the State in question to fix it.]

HUMAN RIGHTS COMMITTEE

-Made up of eighteen members. The Committee shall be composed of nationals of the States
Parties to the present Covenant who shall be persons of high moral character and recognized
com petence in the field of human rights, consideration being given to the usefulness of the
participation of some persons having legal experience. They shall be elected by secret ballot
from a list of persons possessing the qualifications prescribed in article 28 and nominated for the
purpose by the States Parties to the present Covenant.

Functions:

1. State Reports (State parties are required to submit reports on the country's HR status)

2. Adoption of General Comments (These are comments from experts that interprets the
conventions)

3. Examination of individual communications (or complaints)

> a mechanism is created to address the communications against other state

(There shall be no oral hearing on the situation, only a written communication. Thereafter, the
committee shall come up with their decision referred to as Views of the Committee. The Views
are non appealable.

4. Inter-state complaints procedure (Art. 21)

-note that this has never been implemented.

ICESR and ICCPR, distinguished

The ICCPR defines basic rights, such as the right to life (Article 6), freedom from torture and
cruel, inhuman or degrading treatment (Article 7), freedom from slavery (Article 8), the right to
liberty (Article 10) and the right to respect for privacy and family (Article 17).

The ICESR was adopted by the UN GA on december 16, 1966 and entered into force January 3,
1976. It recognaizes that in accordance with the UDHR, the ideal of free human beings enjoying
freedom from fear and want can only be achieved if the conditions are created whereby
everyone may enjoy his economic, social and cultural rights, as well as his civil and political
rights. It protects a broad set of rights related to economic, social and cultural elements of life
that States must provide to their citizens.