PIL REVIEWER
Chapter 12 on International Human Rights Law and Chapter 13 on Peaceful Settlement Disputes
INTERNATIONAL HUMAN RIGHTS LAW
FROM ALIEN RIGHTS TO HUMAN RIGHTS
 Early concern about human rights was about
specific classes of people, e.g. slaves, minorities,
and certain nationalities
 It was not until the birth of the United Nations
that human rights of all people became the subject
of legislation
 Human Rights – those inalienable and
fundamental rights which are essential for life as
human beings
 3 generations of human rights:
1. Traditional civil and fundamental rights
2. Social and economic rights
3. Right to peace, clean environment, self-
determination, common heritage of mankind,
development, minority rights
AN EMERGING INTERNATIONAL BILL OF
HUMAN RIGHTS
 The UN became the cradle for the development
of the new international law on human rights
 Key obligations assumed by the Organization and
its Members:
1. Higher standards of living, full employment, and
conditions for economic and social progress and
development
2. Solutions for international related problems
3. Universal respect for, and observance of, human
rights
 These, however, do not provide for the
definitions of human rights
THE COVENANT ON CIVIL AND POLITICAL
RIGHTS
 The following are substantive rights:
1. Life, Liberty and Property, and Equality
 This, however, does not say when protected life
begins, whereas the Philippines protects ―the life
of the unborn from conception
 There is also no provision on the right to property
 On the right to life, the Covenant’s Article 6(2)
expresses a bias for the abolition of the death
penalty and allows its imposition, in countries
which still have death penalty, only after conviction
for the most serious crimes
 In Article 14, it is more restrictive in the matter of
publicity of criminal proceedings ―where the
interest of juvenile persons otherwise requires or
the proceedings concern matrimonial disputes or
the guardianship of children
 2 provisions on Right to Compensation:
1. Anyone who has been a victim of unlawful arrest
or detention
2. Any person who has been a victim of
miscarriage of justice unless the non-disclosure of
the unknown fact in time is wholly or partly
attributable to him
2. Torture, ill-treatment and Prison Conditions
 Proscription on torture and other forms of ill-
treatment that offend not only against bodily
integrity but also against personal dignity
 Imprisonment in conditions seriously detrimental
to a prisoner’s health constitutes a violation of
Articles 7 and 10(1) of the Covenant
3. Freedom of Movement
 Right to travel within the country, right to leave
the country, right to return to one’s country, the
right to change one’s residence and the right of the
aliens not to be expelled without due process
 Limitations:
a. Those provided for by law
b. Necessary to protect national security, public
order, public health or morals
 The separation between the right to leave and
right to return to one’s country is to make the
limitation more narrow than for the right to leave
the country since exile is now prohibited by
customary law and may even be jus cogens
4. Legal Personality, Privacy and the Family
 When does one become a person? The Covenant
does not say.
Legal Personality
Whether citizens or aliens
Capacity to Act
May not be available to some by reason, for
instance, infancy, minority or insanity
5. Thought, Conscience, Religion, Expression and
Political Freedoms
 This includes the explicit protection of the Right
of Parents in the matter of Religion for their
children
 Covenant prohibits ―propaganda for war
6. Associations and Unions
 Covenant is silent about the right of government
employees to form unions which is explicit in our
Constitution
7. Minorities
 This guarantees ―ethnic, religious or linguistic
minorities‖  This is one of the few rights which
was already the subject of earlier treaties (Treaty of
Versailles and Polish-German Upper Silesia
Treaty)
 2-fold aspect for the concern for minorities:
1. Fear of a secessionist movement by minorities
2. Genuine concern for the human rights of
minorities and the desire to flourish
8. Self-determination of Peoples
 This covers 2 important rights:
a. Right to freely determine their political status
and freely to pursue their economic, social and
cultural development
b. Right for their own ends, to freely dispose of the
natural wealth and resources without prejudice to
any obligation arising out of international
cooperation
 Peoples – include those ruled by colonial powers;
those who form a component part of a multi-
national state
 2 aspects of Self-Determination:
a. Internal – this is the 2 important rights
b. External – belongs to colonies and to those non-
self governing and Trust Territories
OPTIONAL PROTOCOL ON THE COVENANT
ON CIVIL AND POLITICAL RIGHTS
 This treaty is designed to enable private parties
who are victims of human rights violations
 Complaints may be filed only against States who
have ratified the Protocol
THE COVENANT ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
 The rights specific to this are social welfare rights
a. Right to work
b. Right to favorable conditions of work
c. Right to form free trade unions
d. Right to social security and insurance
e. Right to special assistance for families
f. Right to adequate standard of living
g. Right to the highest standard of physical and
mental health
h. Right to education including compulsory primary
education
i. Right to the enjoyment of cultural and scientific
benefits and international contracts
DUTY TO IMPLEMENT
 The Philippines is a party to the UN Charter,
UNDHR, the 2 Covenants, and to the Optional
Protocol to the Covenant on Civil and Political
Rights
 Treaty commitments become part of domestic
law
 Those which are not self-executing provisions
must be attended to by the necessary steps, in
accordance with its constitutional processes and
with the provisions of present Covenants
 Progress Realization – State is obligated to
undertake a program of activities and to realize
those rights which are recognized by the Economic
Covenant
Other Conventions on Human Rights
a. Genocide Convention
b. Convention on the Elimination of All Forms of
Racial Discrimination
c. Convention on the Elimination of All Forms of
Discrimination Against Women
d. Convention Against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment
e. Convention on the Rights of the Child
f. Convention on Migrant Workers
CUSTOMARY HUMAN RIGHTS LAW
 Prohibition on Torture, Genocide, Slavery and
Discrimination
INTERNATIONAL IMPLEMENTATION OF
HUMAN RIGHTS LAW
 Each country has the obligation to implement
human rights law within its jurisdiction properly
done through municipal or regional courts
 2 different procedures used by Human Rights
Commission for responding to violations of human
rights:
a. Confidential consideration under ECOSOC
Resolution 1503
The confidential findings of the Sub-Commission
are brought to the attention of CHR
The CHR is expected to submit its report and
recommendation to the ECOSOC
Procedure is kept confidential, but findings
invariably find their way into media
b. Public debate procedure under ECOSOC
Resolution 1235
This carries 2 types of activities:
1. It holds annual public debates in which
governments and NGOs are given opportunity to
identify specific situations which deserve attention
2. It engages in studies and investigations of
particular situations
PEACEFUL SETTLEMENT OF
INTERNATIONAL DISPUTES
What is international dispute?
 A disagreement on a point of law of fact, a
conflict of legal views or interests between 2
persons
 Must have practical effect on the relationship
between the parties Peaceful methods of settling
disputes:
 Art. 2, par. 3 of UN Charter: ―All members shall
settle their international disputes by peaceful means
in such manner that international peace and
security, and justice are not endangered.  There is
no obligation to settle disputes except in cases that
might endanger peace and security.  But if a
decision is made to settle disputes, the obligation is
to settle them peacefully. Key provisions in UN
Charter:
 Art. 33: (disputes likely to endanger international
peace and security)  Parties to any dispute shall
first of all seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or
arrangements, or other peaceful means of their
choice.  When it deems necessary, the SC shall
call upon the parties to settle their disputes by such
means.
 Art. 36:  SC may, at any stage recommend
appropriate procedures or methods of adjustment. 
SC should take into consideration what has already
been adopted by the parties.  SC should consider
that legal disputes should generally be referred by
the parties to the ICJ.
 Art. 37:  If parties fail to settle disputes via Art.
33, they shall refer it to the SC.  If SC deems the
dispute to likely endanger international peace and
security, it shall: (a) take action under Art. 36; or
(b) recommend appropriate terms of settlement.
 Art. 38:  If all parties request, SC may make
recommendations for pacific settlement.
Classifications of peaceful means of settlement:
Non-judicial
 Negotiation:  Preferred since States are hesitant
to submit disputes to adjudicatory bodies.
 No set rules:
An agreement to negotiate may be formalized via
treaty or exchange of notes.
May be arm’s-length or face to face.
 To be binding, parties MUST agree to it.
 Preliminary step is ―good offices when a neutral
3rd party tries to bring 2 disputants together, after
which disputants look for a win-win solution via a
give-and-take process.
 Mediation:  Involves assistance of 3rd parties
(approved by bother parties) who either act as
bridge between parties who don’t meet OR may sit
with the disputants to chair meetings, suggest
solutions, etc.
 Inquiry:  Fact-finding done by a designated
group of individuals or institutions.  Resolves
disputes based on questions of fact.
 Conciliation:  A more formal technique
whereby parties agree to refer controversies to a
3rd party to make findings of fact and
recommendations.  Generally, parties are not
bound by the recommendations. Merely clears the
air.
B. Quasi-judicial
 Arbitration  Binding settlement of a dispute on
the basis of law by a non-permanent body
designated by the parties.
 The compromis d’arbitrage is agreed upon by the
parties and sets out: (a) composition; (b)
jurisdiction; (c) rules of procedure to be applied.
 States cannot be required to submit to arbitration
UNLESS there is a previous agreement.
 Different from judicial settlement since parties
have a greater say in deciding the law applied,
composition of tribunal, process, etc.
 3 types of arbitral agreement:
a. Arbitration clause incorporated in a treaty
b. Treaties solely to establish methods of arbitration
(i.e. Hague Convention for Pacific Settlement of
Disputes)
c. Ad-hoc arbitral agreements (i.e. US-Iran claims)
 Arbitral decisions
 Applies international law UNLESS parties
specify that some other law applies.
 Arbitral decisions may be challenged if:
a. the arbitral body exceeds its powers
b. there was corruption on the part of a member of
the body
c. failure to state reasons for the awards OR a
serious departure from fundamental rule of
procedure
d. the undertaking to arbitrate OR the compromis is
a nullity
 Domestic courts may refuse to give recognition to
arbitral awards under Convention on the
Recognition and Enforcement of Foreign Arbitral
Awards:
a. agreement to arbitrate was not valid under
applicable law
b. adverse party did not receive proper notice OR
was not afforded opportunity to present its case
c. award is outside the terms of agreement to
arbitrate
d. the constitution of the tribunal OR the arbitral
procedure was contrary to the agreement or the law
of the state where arbitration took place
e. award has not yet become binding, has been set
aside or suspended by a competent court where it
was made
f. under the law of the adverse party, the subject
matter is not capable of settlement by arbitration g.
under the law of the adverse party, recognition or
enforcement would be contrary to public policy
C. Judicial
 ICJ  All members of the UN are ipso facto
parties to the Statute of ICJ, but it does not mean
acceptance of the court’s jurisdiction.
 Only means that the State may accept its
jurisdiction.
 Only states may be parties in the court.
 General principles:
a. States cannot be compelled to submit their
disputes to international adjudication unless they
consent.
b. States may limit their acceptance to certain types
of disputes and attache various conditions and
reservations.
 Composition of the ICJ:
 Art. 2:
 Composed of a body of (a) independent judges,
regardless of nationality, (b) with high moral
character, (c) who possess qualifications required
by their countries for appointment to the highest
judicial offices OR are jurisconsults of recognized
competence in international law.
 Art. 3:
 15 members, no 2 of whom from the same State
 If dual citizenship, nationality is based on where
civil and political rights are ordinarily exercised.
 Art. 4:
 The Court can form chambers, composed of 3 or
more judges, for dealing with particular categories
of cases; or (b) particular cases, the composition to
be approved by the parties; or (c) at the request of
the parties.
 Art. 26:
 Chamber decisions are deemed Court decisions. 
Art. 27:
 Judges of the nationality of the parties shall retain
their right to sit in the case.
 If a judge of the same nationality of a party is
included in the Bench by the Court, the other party
may choose a person to sit as judge, preferably
among those nominated as candidates.
 If the Bench does not include a judge of the same
nationality as the judges, the parties may choose a
judge.
 The President shall request the members of the
Chamber to give place as necessary.
 Several parties of the same interest are deemed
one party only.
 Jurisdiction of the ICJ:
1. Contentious
 Art. 36:
 All cases which parties refer to it and all matters
specially provided for in the UN Charter or in
treaties and conventions in force.
 Signatory states may at any time declare
compulsory recognition in relation to any other
state accepting the same obligation, the jurisdiction
of the ICJ in all legal disputes concerning:
[Optional system]
a. interpretation of a treaty
b. any question of international law
c. existence of any fact which, if established, would
constitute a breach of international obligation
d. nature or extent of the reparation for breach of
international obligation
 Declarations of compulsory recognition may be
made un/conditionally, on condition of reciprocity
of several or certain states, or for a certain time.
 Submitted to the Sec.Gen. of UN
 Reciprocity enables a party to invoke a
reservation to the compulsory recognition which
was not expressed in its own Declaration BUT was
expressed in the other party’s.
 In case of dispute as to Court’s jurisdiction, it
shall be settled by ICJ decision.
 Disputes are to be settled by IL and not DL.
 Court acquires jurisdiction only upon referral by
both parties.
 3 ways to accept ICJ’s jurisdiction:
a. Ad-hoc basis (one party applies unilaterally to
the Court and is consented to by the other party)
b. Parties adhere to a treaty which accepts
jurisdiction on matters of interpretation or
application of a treaty.
c. Optional system (Unilateral declaration of
recognition in relation to any other state accepting
the same jurisdiction in all legal disputes)
 Obligation to comply with decisions
 Art. 59:
 No binding force except as between the parties
and in respect to that particular case
 Art. 60:
 Final without appeal. In the event of dispute as to
(a) meaning or (b) scope of the judgment, the Court
shall construe it upon request of any party.
 Art. 61:
 Application for Revision of a judgment may be
made only when based upon newly discovered fact,
which must be:
(a) a decisive fact;
(b) at the time judgment was given, was unknown
to the Court and to the party;
(c) such ignorance was not due to negligence.
 The Court must first decide whether the fact is of
such character as to lay the case open to revision,
and declaring the application admissible.
 The Court may require previous compliance with
the terms of judgment before it admits proceedings
in revision.
 Application must be made within 6 months from
discovery and within 10 years from date of
judgment.
 Art. 94 of UN Charter:
 If any party fails to perform any obligation under
ICJ judgment, the other party may have recourse to
the SC, which may make recommendations OR
decide upon measures to be taken to give to the
judgment.
 Such enforcement measures are subject to veto
powers of the permanent members.
 Winning state may make uses of alternative
methods of enforcement, such as economic or
diplomatic pressure.
2. Advisory
 non-binding
 non/acceptance depends on internal law of the
institution
 Art. 96 UN Charter:
 SC and GA may make requests for advisory
opinion. GA may also authorize other UN agencies
to seek advisory opinion on legal questions arising
within the scope of their activities.
 Art. 65:
 Advisory jurisdiction in accordance with the UN
Charter
 On any legal matter at the request of any body
authorized to do so.
 Through written requests containing (a) the exact
statement of the question and (b) all documents
likely to throw light upon the question.
 Art. 66:
 Registrar shall:
a. give notice of the request to all state entitled to
appear before the Court
b. via special and direct communication, notify any
state entitled to appear or international organization
likely to furnish information on the question, within
a time limit fixed by the President, that the Court
will be prepared to receive written statements OR
hear at a public sitting oral statements relating to
the question
 If an entitled state fails to receive notification, it
may express a desire to submit a written statement
or to be heard, and the court will decide.
 Parties which presented shall be permitted to
comment on statements made by others.