Human Rights – An Overview
International Humanitarian Law:
“First they came for the Socialists, and I did not speak out - because I was not a
Socialist. Then they came for the Trade Unionists, and I did not speak out - because I
was not a Trade Unionist. Then they came for the Jews, and I did not speak out –
because I was not a Jew. Then they came for me - and there was no one left to
speak for me.”
- Martin Niemoller (1892-1984), Lutheran Minister and early Nazi supporter who
was later imprisonment for opposing Hitler’s regime
Brief History
- Offspring of natural rights, which evolved from natural law
- Rooted in traditions of many cultures: Hindu Vedas; Bible; Koran; Code of
Hammurabi; Incan and Aztec Codes;
- Enlightenment; political history to establish a limited for government that
respects the freedom of individual citizens
- Pre-cursors of 20th century HR: Magna Carta (1215), English Bill of Rights
(1689), French Declaration (1789); US Constitution (1791)
- WWII and the Birth of the United Nations
What is Human Rights?
- Right as justiciable claim, on legal or moral grounds, to have or obtain
something, or act in a certain way (Oxford Dictionary)
- Human rights as rights inherent to all human beings, whatever our
nationality, place of residence, sex, national or ethnic origin, color, religion,
language, or any other status (UNOHCHR)
Dimensions/ Categories of Human Rights:
- Civil and Political Rights (1st Generation, negative rights)
- Socio-economic and Cultural Rights (2nd Generation, positive rights)
- Collective or Group Rights (3rd Generation, positive rights)
*These are categories NOT hierarchy
Characteristics of Human Rights (1903 Vienna Declaration)
- Universal
- Inherent
- Inalienable
- Indivisible
- Interdependent
International Human Rights Law v.
- IHRL – set of laws as defining rights of individuals and groups, IHL set of
laws intended to address humanitarian problems in times of armed conflict
- IHRL applies at ALL times (except in cases of derogations, IHL applies in
times of armed conflict whether international or non-international
- IHRL binds states/ governments in relation to individual or groups, IHL
binds all actors (states and individuals) to an armed conflict
Major IHL: Geneva Convention, The Hague Conventions
Major IHRL: ICCPR, ICESCR, CAT, CERD, CEDAW, UNCRC
Accountability for HR Violators
Duty Bearers v. Right Holders
Right holders – individuals/ groups entitled to human rights, claim these rights, and
hold duty bearers accountable
Duty bearers – primarily state actors responsible to respect, protect, and fulfill
human rights
EMERGENCE OF HUMAN RIGHTS LAW
Sources of International Law (Art. 38[1] ICJ Statute
- International Conventions
- International Customs
- General Principles of Law
- Judicial decisions and scholarly writings as subsidiary means to determine
rule of law
See also:
- Article 38(2) ICJ Statute to decide ex aequo et bono (according to the right
and good or from equity and conscience) upon agreement of parties
- Art 59 ICJ Statute – stare decisis not recognized
- VCLT (1969) (1980)
- Article 26 – Pacta sunt servanda
- Article 27 – International law cannot justify violations of treaties
- Article 53 – Treaty is void if conflicting with Jus Cogens
When does a treaty become legally binding?
Example of Jus Cogens? Salvery, slave trade, aggression, genocide, piracy, racial
discrimination, torture (death penalty to juveniles), refouelement
What is Erga Omnes? See Barcelona Traction case; Portugal v. Australia, US v. Iran
EMERGENCE OF HR AS INTERNATIONAL LAW *Human Rights as Customary Intl Law
UN and regional human rights system
International level: Read and make summary of the ff. cases:
- UN Charter, UDHR, Binding International Treaties and Conventions 1.) Federal Republic of Germany vs. Denmark and Federal Republic of
- Nine Core HR Treaties Germany vs. The Netherlands (Continental Shelf Cases ICJ Reports, 1969)
2.) Nicaragua vs. USA (ICJ) Reports, 1986)
UN Charter and State Obligation
- Article 55 – promotion of and universal respect for HR HR Protection Beyond Treaties - HR As Customary Intl Law
- Article 56 – member nations to collective and separate actions for - Consistent and identifiable state practice
achievement of obligation under Art. 55 - Evidence of a belief that this practice is rendered obligatory by the
- Art. 103 – Conflict between obligations under Charter and other existence of a rule of law requiring it (opinion juris sive necessitates)
international agreement, UN Charter to prevail.
- See Advisory Opinion (1971) on South African presence in Namibia: to Have HR Obligations and State achieve the status of CIL?
establish distinction based on sex, ethnicity… is a violation of the UN
Charter Practice seen as building customary HR
States official declaration supporting HR Participation in HR instruments
Regional Level negotiations Incorporation of HR in national legal order Diplomatic statements
- Council of Europe, ECHR and ECIHR
- Organization of American States, ACHR and IACHR, African Union, African HR Protection Beyond Treaties- As General Principles of Intl Law
(Banjul) Charter and ACHPR - ICJ declarations that the UDHR and other non-treaty Declarations and
- ASEAN Intergovernmental Commission on Human Rights Agreements are a source of legal obligations
* What is unique about the ASEAN Commission?
Read and make summary of the ff cases:
EMERGENCE OF HR AS INTL LAW 1.) US vs. Iran (ICJ Reports 1980)
*Jus Commune of Human Rights 2.) UK of Great Britain and Northern Ireland vs. Albania (Corfu Channel Case
- Development of human rights as “common law” - when international, ICJ Reports 1949)
regional, and national courts increasingly refer to one another’s case laws, 3.) Portugal vs. Australia (The Case Concerning East Timor ICJ Reports 1995)
and progressively building a common understanding of HR values –
COMPARATIVE JURISPRUDENCE IN HUMAN RIGHTS ADJUDICATION MECHANISMS TO ENSURE COMPLIANCE OF STATE OBLIGATIONS AND THEIR
LIMITATIONS
1. Bughartz v. Switzerland The UN and Human Rights Treaty Bodies Protection Mechanisms & The Philippine
2. Pretty v. UK Commission on Human Rights and the Paris Principles
3. Dante Piandiong, Jesus Morallos and Archie Bulan v. Philippines
4. Kosiek v. Germany Mechanisms to ensure compliance of Human Rights Obligations of States
5. Johnston v. Ireland 1.) UN Charter protection mechanisms (Human Rights Council)
2.) Regional Human Rights Convention and their Courts (Regional Courts)
Philippine Cases 3.) UN Treaty Bodies Human Rights
1. Sec of National Defense et al vs. Raymond Manalo and Reynaldo Manalo 4.) National Human Rights Institutions under the Paris Principles as the
(2008) primary enforcer and guarantor of human rights
2. Ang Ladlad vs. Comelec (2010) 5.) Domestic Courts
3. Garcia vs. Drilon (2013)
4. Enrile vs. Sandiganbayan and People UN CHARTER HUMAN RIGHTS PROTECTION MECHANISMS
*The UN Charter
HUMAN RIGHTS AS INTL LAW 
- Art 56
- Art 103 of the UN Charter (see case of Sawhoyamaxa Indigenous
Community vs. Paraguay, IACHR, 2006)
- Certain HR norms as jus cogens – slavery, slave trade, aggression,
genocide, racial discrimination, apartheid, torture (death penalty to
juveniles, refouelement;
- certain HR norms as erga omnes (see Barcelona Traction case; Portugal vs.
Australia); see also US vs. Iran
*The UDHR
- Adopted 10 December 1948 by the UN General Assembly (votes: 48-0-8)
- Adopted as a non-binding resolution
- Growing consensus that UDHR has acquired the status of customary
international law or should be considered as part of “general principles of
law recognized by civilized nations” (see Art. 38 (1)(c) of the Statute of the
ICJ as source of international law)
- UDCR + ICCPR + ICESCR = International Bill of Human Rights
- Why not one single universal covenant? Different modes of
implementation between civil-political rights and economic socio cultural
rights
o ICCPR – states to provide “effective remedy” for violation of
rights;
o ICESCR – states to comply to with due regard their national
economy to the maximum of its available resources toward
achieving progressively the full realization of these rights
- But see 2008 optional protocol (entered into force in 2013) to the ICESCR:
committee may now receive complaints for ICESCR violations
UN Charter-Based Bodies for HR monitoring
Human Rights Council (succeeds CHR in 2006)
- Universal Periodic Review
- Complaint Procedure to hear and try systematic, gross, and reliably
attested violations of UN Charter and UDHR provisions lodged by
individuals and groups; process is confidential
- Complaint Procedure Admissibility: exhaustion of domestic remedies;
complaint NOT being dealt with by any other international or regional
complaints procedure in the human rights field
- Thematic and Country Rapporteurs: examine, monitor, advise and public
report on human rights situations in specific countries of territories
(country mandates) or on major phenomena of human rights violations
worldwide (thematic mandates)
- Security Council: intervene in matters threatening international peace,
including violations of international human rights
- UNESCO: operates a non-contentious individual communications
procedure for violations of education, culture, and science rights
- International Tribunal and Processes
o ICTY (Former Yugoslavia); ICTR and Gacaca Courts (Rwanda); SCSL
(Sierra Leone); Special Courts in Cambodia, East Timor, Kosovo,
and Iraq
o See Rome Statute of the ICC where individual human rights
liability is provided
HUMAN RIGHTS TREATY BODIES PROTECTION MECHANISMS
*The Nine Core HR Treaties
- ICERD, ICECSR, ICCPR, CEDAW, CAT, CRC, ICRMW, CRPD, ICPED
State Reporting
- Initial Report/Periodic Report: 1 to 2 years from entry into force; thereafter
every 4-5 years; CED no periodic reports
- State report to indicate factors and difficulties in implementing the treaty
- Shadow reports from NGOs and civil society are accepted
- REVIEW PROCEDURE: if no State report
- Concluding Observations and Recommendations
Individual Communications
- Consideration of Admissibility: State ratification of treaty and state
recognition of the treaty body; exhaustion of local remedies; case not
investigated by any other int’l body; no reservation by the state party;
incident occurred after entry into force of the treaty (ratione temporis
rule); prescription rule under some treaties like CERD; consent of the
victims if communication not filed by the victims themselves
- Consideration of Merits (general contents of communication): personal
info of victim; consent of victim if filed by third party; facts of the case;
reasons why rights are violated and under which specific article of treaty;
steps taken to exhaust local remedies; steps taken to submit complaint to
other int’l body; supporting documents
- Procedure: archive or proceed based on sufficiency of information;
screened for admissibility and merits; clarification/response by the state;
violation – VIEWS communicated to the State and the individual; follow-up
procedures to decisions through a special rapporteur or a working group
- Ratione Temporis Illustrative Cases
o J.L v. Australia
o E. and A. Konye v. Hungary
o Kurowski v. Poland
o Aduayom et. al. v. Togo
 o What is the implication of CONTINUING EFFECTS and
CONTINUING VIOLATIONS as to admissibility of individual
communications?
- Exhaustion of Domestic Remedies Illustrative Cases
o Chief Bernard Ominayak and the Lubicon Lake Band v. Canada
o Henry v. Jamaica
o Hendrics v.
- Requirement on Non-referral to any other int’l body illustrative cases
o Sanchez Lopez v. Spain
o Leirvag v. Norway
o Karakurt v. Austria
Inter-State Communications
- a state is allowed to submit communications about violation of HR treaty
by another state (never been used to date)
- State ratification of the treaty and state recognition of the treaty body
- Ad Hoc Conciliation Commission; negotiation/arbitration
Inquiry Procedure
- Treaty bodies to initiate inquiries of HR violations by state
- Confidential (but in consultation with state)
- Submission of findings to the state; state to respond with a six-month
deadline
Early Warning/Urgent Action Procedure
- Treaty bodies (CERD, CRPD, CED) to respond to issues requiring immediate
attention to prevent/limit the scale of serious violation
- Confidential (but in consultation with state)
General Comments/Recommendations
- Treaty bodies produce general comments or recommendations as
authoritative guides on how to Implement and Interpret the treaties
- General Comment No. 31 (2004) on ICCPR Art. 2 – a person need not be
located within a state party’s territory in order for that obligation towards
that person, the person must merely be “within the power or effective
control” of that state party
Reservations
- VCLT (art. 2 (1)(d)): unilateral statement by a state to exclude or modify the
legal effect of certain provisions of the treaty in application to that state
- Allowed, unless 1.) prohibited by a treaty; 2.) treaty only provided specified
reservations which do not include the reservation in question; 3.)
incompatible with the object and purpose of the treaty
- CEDAW Reservation by Egypt and similar reservations by predominantly
Muslim countries: willing to comply with Art. 2 on eliminating
discrimination against women, provided compliance does not run counter
to the Islamic Shari’a
- ICCPR Reservation by France: on Art. 27 on granting protection to
minorities and enjoyment of their culture
- UNCRC Reservation by UK on immigration and citizenship of children and
on detention of children with adults
- Questions:
o Why is reservation allowed in HR treaties? Is it necessary to allow
it?
o What do you think is the implication of allowing reservation to the
universality of human rights?
Derogations
- Allows the state to limit rights and freedoms in times of civil strife and
extreme situations or public emergencies
- Non-derogable rights under ICCPR: arbitrary deprivation of life; torture or
cruel, inhuman or degrading punishment or treatment; slavery, servitude,
imprisonment for contractual obligations, imprisonment for no crime;
recognition as a person everywhere, freedom of conscience, thought and
religion
Denunciations
- Act by a state to terminate treaty obligation or to withdraw from a treaty
- Art. 43 VCLT – independent existence of a treaty law and other
types/sources of int’l law (Nicaragua v. US)
- Art. 54 VCLT – denunciation or termination allowed if provided under
treaty provisions or by consent of the parties (ICJ opinion of 1951 on the
Genocide Convention)
- Art. 56 VCLT – no denunciation or termination absent treaty provisions
allowing it, UNLESS, state parties intended to admit possibility of
denunciation or when allowance of denunciation may be implied from the
nature of the treaty
- Questions
o Are denunciations allowed in HR treaties? (Art. 21 of CERD; 1 st
Optional Protocol of ICCPR; 2008 Optional Protocol of ICESCR)
o What do you think is the impact of allowing denunciations in HR
treaties to the universality of human rights?
Declarations
- Statement of a state’s understanding or interpretation of treaty provisions
to clarify position
 - As an instrument itself, it does not create binding obligation but merely
statements of certain aspirations

THE PARIS PRINCIPLES

- Does CHR have its own charter? (see Art. 9, Sec. 5 on Constitutional
Commissions; Art. XI, Sec. 14, and RA 6770 on the Ombudsman)
- Does CHR enjoy fiscal autonomy?
- Does CHR have a broad mandate?
- Does CHR fail us? Or given it doesn’t have its own charter and with no fiscal
autonomy no broad mandate, is it us who failed CHR?

Bautista v. Salonga
- EO 163-A: making the tenure of CHR Chair and members at the pleasure of
the president declared unconstitutional

Simoen Jr. et. al. v. CHR

- CHR has no adjudicating or quasi-judicial power; upheld 1991 Carino v. CHR
- No power to issue restraining orders
- Has contempt powers, but limited to its investigatorial powers
-