Human Rights Law

Fernando B. Alonzo
Professor
Overview

 What is your understanding of Human Rights?

 Who is the protector of Human Rights?
 Give examples of human rights.
Chapter I.
Introduction..
I. A. Rationale
 United
Nations General Assembly (UNGA) –
commencement of World Program on Human Rights;
 TheCommission on Human Rights issued resolution nos.
A2007-028 and A2007-029
“Several professional are only semi-literate on
human rights.”
Chapter I.
Introduction..
I. B. Scope as a Subject
 Principles of Human Rights Law;
 United Nations Systems;
 International Humanitarian Law;
 Relationship with other branch of law.
Chapter I.
Introduction..
I. C. PH Contribution to International Human Rights Law
 PH Contribution to UDHR – PH is 1 of the 48 countries that
adopted UDHR on 10 December 1948;
 PH participation on core human rights treaties;
 International Convention on Economic, Social and Cultural
Rights (ICESCR);
 International Convention on Civil and Political Rights (ICCPR)
 International Convention Against Racial Discrimination;
 Conventionon the Elimination of Discrimination Against
Women (CEDAW);
Chapter I.
Introduction..
I. D. Human Rights Laws of the PH (Sources)
1. 1987 Constitution (Bill of Rights);
2. Rights of Children (i.e. RA 7610 – Law Against Child Abuse);
3. Rights of Women (i.e. RA 9262);
4. Rights of LBGT (i.e. Ang Ladlad vs COMELEC);
5. Rights of Senior Citizens (i.e. RA 9994 – Expanded Senior
Citizen Act);
6. Rights of Disabled Persons (i.e. RA 7277 – Magna Carta of
Disabled Persons);
Chapter I.
Introduction..
I. D. Human Rights Laws of the PH (Sources)
7. Rights of Workers and Laborers (i.e. RA8024 – Migrant
Workers Act);
8. Right to Social Security (i.e. RA 8282 – SS Law);
9. Right to Health (i.e. RA 7875 – National Health Insurance
Act);
10. Right to a Healthy Environment (RA 9003; Oposa vs.
Factoran);
11. Right to Privacy (i.e. RA 10173 – Data Privacy Act of 2012);
12. Right to life, liberty and security (i.e. RA 9745 – Anti-
Torture Act);
Chapter I.
Introduction..
I. D. Human Rights Laws of the PH (Sources)
13. Remedies of unjustly arrested and/or detained persons
(Rule on Habeas Corpus);
14. Rights of accused, victims, and witnesses of crimes (i.e. RA
6981 – Witness Protection Act);
15. Other Human Rights Violations penalized (under the RPC);
16. Human Rights Mechanisms:
a. EO 163 – Creating the Commission on Human Rights;
b. RA 9201 – National Human Rights Consciousness Week;
c. PD 443 – Delivery of Social Services.
Chapter I.
Introduction..
I. D. Construction of Human Rights Instruments (Statutory
Construction)

“No implied repel”

1. i.e. Law Against trafficking in persons (victim prostitutes are not to be
prosecuted)
2. However, under the RPC, Prostitution is penalized under Art. 202.
Chapter II.
Human Rights, attributes, origin and the 3
“Generations”
II. A. Meaning of Human Rights

“Constitute a set of rights and duties necessary for the

protection of human dignity, inherent to all human
beings, irrespective of nationality, place of residence, sex,
national or ethnic origin, color, religion, language, or any
other status (i.e. criminal).”
Everyone is equally entitled to human rights.
Chapter II.
Human Rights, attributes, origin and the 3
“Generations”
II. B. Attribute of Human Rights

1. Universal – apply to all human beings, regardless of

race, culture, age, sex, or creed;
2. Inherent – acquired SB; not conferred by any authority;
3. Equal – all have same sets of rights;
4. Inalienable – cannot be taken away. Its exercise may be
regulated.
Chapter II.
Human Rights, attributes, origin and the 3
“Generations”
II. C. Origin of Human Rights

States gained considerable attention on human rights

only after World War II, although the rights of everyone
are as old as his age.
Chapter II.
Human Rights, attributes, origin and the 3
“Generations”
II. D. Three (3) “Generations” of Human Rights

Refers to the order of time when a particular set of rights

began to develop and gain the recognition by States.
Chapter II.
Human Rights, attributes, origin and the 3
“Generations”
II. D. Three (3) “Generations” of Human Rights

1. First Generation – Political Rights and Civil Liberties

(ICCPR) – (prohibition against search and seizure, undue
intervention to the freedom of expression; Known as “No
one shall” rights;
2. Second Generation – Economic, Social and Cultural Rights
(ICESCR); known as “State shall” rights; and
3. Third Generation – Right to development, to live in a
clean environment, right to live in peace; known as
“Solidary rights”
 Chapter III.
State Responsibility
Chapter III.
State Responsibility
III. A. Why the State?
“Pag rebelde and biktima, violation of human rights,
pero pag pulis o sundalo ang pinatay, alright?”

 The State as guarantor of human rights

“The State may be held accountable when people are
deprived of their rights by its action or inaction.”

“Your concern is human rights, mine is human lives.”

Chapter III.
State Responsibility
III. A. Why the State?

 Human Rights and the Rule of Law

“Balance between the government’s authority to rule and
the people’s entitlement to their inherent rights”
 Violations by “State Actors”
Violation by State Actors is violation of the State. The
State is duty bound to protect human rights.
Chapter III.
State Responsibility
III. A. Why the State?

 Violations by private individuals

“Duty of the State to protect its citizens.”
“Penal Laws shall govern”
 State liability for human rights violations committed by
“non-State actors”
“Omission and Commission”
Chapter III.
State Responsibility
III. B. International State Responsibility
“Treaty signatories (States) are committed to observe the
standards set forth in the treaty.”
“Enactment of Domestic Laws.”

 International State responsibility for internationally wrongful

acts.
“Articles on Responsibility of States for Internationally Wrongful
Acts”
Chapter III.
State Responsibility
III. B. International State Responsibility
Derivative State responsibility for complicity:
1. The State aids and assists in the commission by another of
the internationally wrongful act, and
2. The State exercises direction and control over the
commission of the act. (Nicaragua vs. USA) In that case, ICJ
ordered USA for the reparation for the injury caused by such
violation.
Chapter III.
State Responsibility
III. C. PH Cases on State Responsibility
1. Prohibition on unreasonable searches and seizures is
a restraint against the State, and not against private
individuals [People vs. Andre Marti].
2. Justiciability of the solidary right to a healthy
environment [Oposa vs. Factoran]. Solidarity rights to
a healthy environment, a 3rd generation right.
3. The writ of kalikasan - a remedy available for cases
involving environmental damage of such magnitude as
to prejudice the life, health or property of
inhabitants in 2 or more cities/provinces.
Chapter III.
State Responsibility

III. D. Command Responsibility

1. The Yamashita Standard
 Chapter IV
Sources of International Human Rights Law
Chapter IV
Sources of International Human Rights Law

 Statute of the ICJ, Article 38(1) enumerates the ff

sources:
1. International Conventions/Agreements;
2. International Custom;
3. GeneralPrinciples of law recognized by the
community of nations; aka Statute of “civilized
nations”; and
4. Judicial
decisions and the teachings of the most
highly qualified publicists.
Chapter IV
Sources of International Human Rights Law

IV. A. International Agreements “Pacta sunt servanda”

1. International Covenant on Civil and Political Rights (3
March 1976);
2. International Convention on Economic, Social and
Cultural Rights (ICESCR) (3 Jan 1976);
3. Convention Against Torture and other Cruel, Inhuman
and Degrading Treatment or Punishment (26 June 1987);
4. International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD) (4 Jan 1969)
Chapter IV
Sources of International Human Rights Law

IV. A. International Agreements “Pacta sunt servanda”

5. Convention on the Rights of the Child (CRC) (2 Sept 1990);
6. Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) (3 Sept. 1981);
7. International Convention on the Protection of the Rights of
All Migrant Workers Members of their Families;
8. International Convention for the Protection of the Rights of
All Persons from Enforced Disappearances (2006); and
9. International Convention on the Protection and Promotion
of the Rights and Dignity of Persons with Disabilities;
Chapter IV
Sources of International Human Rights Law

IV. B. International Customary Law

To be considered as such, there must be:
1. The objective element of acts amounting to settled
practice of States; and
2. The subjective element consisting of a belief that this
practice is rendered obligatory by the existence of a rule
of law requiring it
Chapter IV
Sources of International Human Rights Law

IV. B. International Customary Law

“Jus Cogens” or Preemptory Norms
ELEMENTS:
1. Preemptory norm of general international law;
2. Accepted and recognized by international community;
3. There can be no derogation therefrom; and
4. It can be modified only by subsequent norm.
Chapter IV
Sources of International Human Rights Law

IV. B. International Customary Law

“Jus Cogens” or Preemptory Norms
EXAMPLES:
1. Slavery;
2. Genocide;
3. Acts of aggression; and
4. Racial discrimination
Chapter IV
Sources of International Human Rights Law

IV. B. International Customary Law

Obligatio erga omnes
 State’s obligation to the international community vs.
State’s obligation to another State
 Human Rights protection is State’s obligation to the
international community
Chapter IV
Sources of International Human Rights Law

IV. B. International Customary Law

Universal Jurisdiction
 Relating to jus cogens rights and erga omnes
obligations
 Jus cogens and erga omnes transcends boundaries
Chapter IV
Sources of International Human Rights Law

IV. B. International Customary Law

Actio Popularis
 Prosecution of Jus Cogens crimes may be initiated by
another person or group of persons i.e. NGOs;
 Refers to procedure in bringing a suit on another’s
behalf.
Chapter IV
Sources of International Human Rights Law

IV. C. General Principles of Law

Unwritten and uncodified concepts from
which laws are based.
 Yogyakarta Principles
Fundamental Human Rights of every
individual regardless of sex (LGBT).
Chapter IV
Sources of International Human Rights Law

IV. C. General Principles of Law

Incorporation Clause
“PH adopts the generally accepted principles of
international law as part of the law of the land.”
Chapter IV
Sources of International Human Rights Law

IV. D. Judicial Decisions and Teachings

 Vienna Convention on the Law on Treaties (Art.
38) recognizes the judicial decisions as part of
international law.
Chapter IV
Sources of International Human Rights Law

IV. D. Judicial Decisions and Teachings

International and Regional Tribunals:
1. International Court of Justice (ICJ) – the principal
judicial organ of the UN.
a. Contentious Cases – cases submitted by the State
members of the UN;
b. Advisory proceedings – Requests for advisory
opinions on legal matters submitted by UN.
Chapter IV
Sources of International Human Rights Law

IV. D. Judicial Decisions and Teachings

International and Regional Tribunals:
2. International Criminal Court (ICC) – created by the
Rome Statute of the International Criminal Court
- The court of last resort
a. Cases against humanity (terrorism);
b. War crimes;
c. Genocide; and
d. Crimes of Aggression.
Chapter IV
Sources of International Human Rights Law

IV. D. Judicial Decisions and Teachings

International and Regional Tribunals:
3. Ad hoc criminal tribunals
a. International Criminal Tribunal of the former
Yugoslavia (ICTY);
b. International Criminal Tribunal for Rwanda (ICTR);
c. Tokyo Tribunal (atrocities committed during the
WWII by the Japanese Imperial Army).
Chapter IV
Sources of International Human Rights Law

IV. D. Judicial Decisions and Teachings

International and Regional Tribunals:
4. Regional Courts:
a. European Court of Human Rights (EC+HR) – based
in France
b. Inter-American Court of Human Rights (IACHR)
c. African Court of Human and People’s Rights
(ACHPR)
Note: No Asian or ASEAN Human Rights courts yet.
Chapter IV
Sources of International Human Rights Law

IV. D. Judicial Decisions and Teachings

International and Regional Tribunals:
4. Hybrid or internationalized courts – mix of domestic
and international both in judges and staff as well as
the laws applied.
a. Sierra Leone – Special Courts for Sierra Leone;
b. Cambodia – Extraordinary Chambers in the Courts of
Cambodia (crimes committed by Khmer Rouge);
c. East Timor – Special Panels of Serious Crimes; and
d. Kosovo – “Regulation 64” Panels in the Courts of
Kosovo
End of 4 Chapters…