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Narrate How Thesis came to be

1. International Law Landscape

Contemporary developments in international law has treated individuals as subjects

of international law. This is a departure from traditional views of international law as
a system of laws which regulate the relations between States.

Individuals, as subjects of international law, have rights which have already been
recognized by the international community as a whole. These rights create a
corresponding duty on the part of States to protect and preserve those rights as well
as enforce or vindicate such rights in case of violation. (Right-Duty Correlatives)

1. Personal Anecdote

Let me begin by sharing my experience with working as a paralegal with the Human
Rights Victims Claims Board, an agency tasked to receive, process, and distribute
reparations to victims of human rights violations committed during the
administration of former president Ferdinand Marcos.

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1. Hawaii Class Suit Plaintiffs are part of these claimants
1. The HCS is the foreign judgment rendered by the District Court of Hawaii
in favor of victims of GHR under ML
2. Under the HCS : Three Sub-Classes
3. The Appellate Court Decision attained finality in March 1997.
2. Then came Mijares v. Rañada, a civil case to enforce the foreign judgment
secured by the class suit plaintiffs
1. The case was filed in 1997 but was dismissed in 1998 on procedural
grounds (filing fees: 2.2 Billion)
2. 2005: The SC ruled only on the procedural issues and remanded the case
to the RTC for adjudication on the merits
3. Mijares v. Estate of Marcos (CA Decision, July 2017)

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Rule 39, Section 48: Effects of a Foreign Judgment
- Conclusive or Presumptive
- Want of Jurisdiction, Want of Notice, Collusion, Fraud, or Clear Mistake of Law or
Fact

- A key issue in human rights is the enforcement of international norms within the
domestic sphere. While expected to comply with their treaty obligations in good
faith, States are left on their own to determine domestic policies within their
system of laws. This may result in gaps in policies and inadequate remedies to
redress violations
- Given the challenges in the enforcement and implementation of human rights
within the domestic sphere, exploring new paradigms and approaches becomes
imperative. The study seeks to provide such insight by bringing international law
treatment of human rights within the domestic sphere,
- Novel Remedy

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Solely on procedural grounds = narrow examination of the facts and law. (Two-tier
examination by courts)

Gist of CA Decision (Dismissal Due to Jurisdictional Grounds)

1. Want of Jurisdiction: It was an Invalid Class Suit and the ATCA does not vest
jurisdiction upon US Courts
2. Constitutionally Infirm: There was no due process as to appearance and notice
3. Want of Basis : Procedure – The ACTA does not have extraterritorial application
(US not a hospitable forum): Kiobel Case (2013)

SC re: Procedural Rules

In weighing whether strict adherence to procedural rules would have frustrated
substantial justice, the court should have considered, among others, that the factual
and legal circumstances of the claim of the plaintiffs are grounded upon their
substantive rights victims of gross human rights violations perpetuated by the State.

Two-Tier
1. Compliance with Procedural Standards
2. Underlying Case

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The approach would require the application of

1. Private International Law – Rule 39, Section 48 : Procedural Rule

2. Public International Law - International Human Rights Law (Right to an Effective
Remedy under the ICCPR) : Substantive Rule

Normative Tension between PRIL and PIL (and which among the two, if any, would
prevail)

Position: PIL Rules would prevail as it would involve substantive rights

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Outline of the Framework

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A foreign judgment may either be conclusive or presumptive

Conclusive on the Title: Judgment or order upon a specific thing (actions in rem)
Presumptive Evidence: Judgment or order against a person (actions in personam)

In both cases, the foreign judgment may be repelled by want of jurisdiction, want of
notice, collusion, fraud, or clear mistake of law or fact

- Want of Jurisdiction, Want of Notice: Jurisdictional (First Phase)

- Clear Mistake of Law or Fact: Misapplication or Misappreciation by the Foreign
Court as to the law or fact
- Nargamull v. Binalbagan-Isabela: Hessian Bags

When the foreign judgment is contrary to law, public morals and public policy
- Arca v. Javier: Divorce Decree

procedural rules must not be so strictly construed so as to frustrate the attainment of

justice. A strict and rigid application of the rules must always be eschewed when it
would subvert the primary objective of the rules, that is, to enhance fair trials and

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expedite justice. Technicalities should never be used to defeat the substantive rights
of the other party

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Premise 2: Individuals as Subjects of International Law
Individuals have rights which have already been recognized by the international
community as a whole. These rights create a corresponding duty on the part of States
to protect and preserve those rights as well as enforce or vindicate such rights in case
of violation.

Focus:
1. Rights of Individuals under the ICCPR:
1. Article 6: Inherent Right to Life
2. Article 7: Prohibition against Torture and Inhumane Treatment
3. Article 2: Right to an Effective Remedy
2. International Covenants create the Right-Duty Correlative between Party States
and Individuals
3. International Tribunals determine the extent of rights and obligations between
these parties. They also define the nature of certain rights
1. Jus Cogens norms and Obligatio Erga Omnes

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Premise 3 and 4
Jus Cogens norms are peremptory norms of international law upon which no
derogation is permitted
- While it appears to be a creation of law under the Vienna convention, its nature is
derived from Necessary Law
- Necessary Law refers to a set of rules which is binding and immutable
across all states (de Vattel). It does not require consent of State.
- Positive Law of Nations refers to rules created with consent of states i.e.
conventions and treaties or customary laws of nations. It is binding only
between contracting states
- A Jus Cogens norm prohibit the existence of treaties which are contra bonus
mores or acts which is contrary to the general welfare of society as a whole
(minimum ethical standards)

Distinction between Jus Cogens and Erga Omnes Obligations are highly debated.
1. They both impose a standard of conduct among States
2. However, there is an opinion that JC is occupy a higher level of compliance than
EO
1. Source: Natural Law vs Treaty Law

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 2. JC imposes an obligation to prohibit while EO merely gives states the Right
to Prohibit.

Article 53 of the Vienna Convention

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law. For the purposes of the present Convention, a peremptory
norm of general international law is a norm accepted and recognized by the
international community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general
international law having the same character.

There is NO CRITERIA. HEHEHE. But the International Law Commission who drafted
the Convention provides direction (somewhat)
• The provision is couched in general terms which leaves its appreciation to (1) State
Practice and (2) Decisions of International Tribunals
• Jus Cogens is not a general rule of international law (otherwise it would be too
convenient) but rather it relates to the particular nature of the subject matter.

Jus Cogens : Sovereignty and Human Rights (Fundamental aspects of the State and
Individuals)

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Premise 5 and 6: Right to Effective Remedy

The right to effective remedy refers to an individual’s right to claim for the injuries
caused by a breach of obligation by the erring State. This includes reparations which
may be in the form of restitution, rehabilitation and measures of satisfaction such as
public apologies, public memorials, guarantees of non-repetition and changes in
relevant laws and practices. It likewise includes bringing justice upon the perpetrators
of human rights violations through proper judicial avenues.

The Right to an Effective Remedy

1. Effective and Equal access to Justice
2. Adequate, Prompt, and Effective Reparations for Harm Suffered
3. Access to Relevant information re: violations and reparations mechanisms

ICCPR: Article 2
Philippine Law:
1. Various forms of Legislation
2. Manila Prince Hotel Case: Ubi Jus Ibi Remedium

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Integral to the right to remedy is the duty of the State to ensure equal and effective
access to justice, irrespective of who may ultimately be the bearer of responsibility
for the violation. Part of the equal and effective access to justice is the State
obligation to take measures to minimize the inconvenience to victims and their
representatives.

Furundjiza, Goiburu, Senegal

1. Furundjiza: Prohibition on Torture is JC. Prevent Potential Breaches
2. Goiburu: IACHR – extends to families cases of ED the right to claim reparations
3. Senegal: Obligation to prosecute and extradite is non-derogable if perpetrator
committes an act of torture.

Right to Effective Remedy = Erga Omnes Obligation

Next: Incorporation

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Premise 7: Incorporation Clause

Article II, Section 2

1. Incorporaton Clause: Adoption of Generally Accepted Principles of International
Law as part of the law of the land
1. Secretary of Justice v. Lantion:

The case involves the extradition of Mark Jimenez as requested by the US

Government pursuant to the RP-US Extradition Treaty. Jimenez requested for
his due process rights (hearing and admin due process). SC granted (dismissed
the petition of SOJ)

Application of the Incorporation Clause: Appears to be a Conflict between

International Law and Philippine Law
1. Give effect to both (best interpretation) – Municipal law is presumed to
have been enacted with proper regard to GAPIL.
2. Irreconcilable: Municipal law takes precedence

Prof Magallona: Incorporation Clause creates a juridical enigma – the norm is

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recognized to exist but there is no knowledge of its substantive content. The SC
serves as the authority to interpret such norms as part of the GAPIL under Section 2,
Article II.

Consequences:
1. Subject to Constitutional Standards
2. Application upon subjects of Philippine Law
3. Nature of Rights and Obligations arising from international law also undergoes
transformation

The transformation of these international norms has the effect of transforming the
remedies recognized under international law. Effectively, not only does the
incorporation clause transform GAPIL, it transforms rights and obligations necessarily
related to it.

Prohibition vs Torture > Remedies > Right to Effective Remedy > Reparations

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Conclusion Slide

A foreign judgment granting damages to victims of gross human rights violation is

accordance with the right to effective remedy.

In effect, this establishes the necessity of a substantive examination of an HR Case

with respect to Section 48, Rule 39. It can be considered as exception to the
procedural rule on the enforcement of a foreign judgment.

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In almost a decade, the plaintiffs sought to enforce the right before the Philippine
Courts only to have their claim denied on procedural grounds. The failure of the Court
of Appeals to appreciate that the cause of action which gave rise to the foreign
judgment arose from the commission of gross human rights violations.

In the same way that basic human rights to life and personal security transcend
beyond race, sex, language, religion, political or other opinion, national or social
origin, birth or other status, so too must the obligations to uphold these values. A

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declaration of such doctrine by the Supreme Court would not only affirm the
commitment of the Philippines with its international human rights obligations but it
would expedite the delivery of justice to victims of gross human rights violations.

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