Chapter 5

SOLIDARITY/COLLECTIVE RIGHTS
(THIRD GENERATION OF RIGHTS)

Peace, Development, Environment

Right to peace belongs to the category of solidarity/collective rights. It is universally

recognized that peoples of the earth have a sacred right to peace and that the
preservation of the right of peoples to peace and the promotion of its implementation
constitute a fundamental obligation of each State (Declaration on the Right of Peoples
to Peace, 1984).

Conflicts of an international character and non-international character have resulted

in millions of casualties and have caused untold sufferings to peoples of the world.
Although the number of conflicts of an international character has declined since World
War II, it is estimated that conflicts of a non-international character, internal conflicts and
tyrannical regime victimization during the course of the twentieth century have resulted
in more than 170 million deaths (Bassiouni, 1996, p. 322).

International instruments related to peace include the UN Declaration on Principles

of International Law Concerning Friendly Relations and Cooperation Among States, UN
General Assembly Resolution 33/73 Declaration on the Preparation of Societies for
Life in Peace (1978), Declaration on the Right of Peoples to Peace of 1984, UNGA
Resolution 57/216 Promotion of the Right of Peoples to Peace (2002), UNGA
Resolution 45/14 Implementation of the Right of Peoples to Peace (1990).

Right to development is another example of a solidarity/ collective right.

Development is a comprehensive economic, social, cultural and political process which
aims at the constant improvement of the well-being of the entire population and of all
individuals through their meaningful participation (Declaration on the Right to
Development, 1986). Amartya Sen defines it as a process of expanding the freedoms
that people enjoy and requires the removal of major sources of unfreedom like poverty,
tyranny, poor economic opportunities, systematic social deprivation, neglect of public
facilities, intolerance or overactivity of repressive states (Barua-Yap, 2003, p. 277).
Poverty embraces the spectrum of conditions where freedoms are diminished and
denied (p. 278).

The right to development was proclaimed in the UN Declaration on the Right to

Development (1986). It is also recognized in the African Charter on Human Rights and
People's Rights and the Arab Charter on Human Rights. It is re-affirmed in instruments
like the 1992 Rio Declaration on Environment and Development, the 1993 Vienna
Declaration and Programme of Action, the Millennium Declaration, the 2002 Monterey
Consensus, the 2005 World Summit Outcome Document and the 2007 Declaration on
the Rights of Indigenous Peoples (The Right to Development at a glance, http://
www.un.org/en/events [Accessed on October 5, 2013 - Ed.]).

The right to environment is seen today as an important right because of global

warming, climate change, the damaging effects of environmental pollution on human
beings and the degradation of the world's environment that includes land, water and air.
But the global recognition that human rights and environmental protection are
connected and that man has a fundamental right to an environment that permits a life of
dignity and well-being became explicit only in 1972 at the Stockholm Conference. This
conference is considered an important starting point in developing environmental law at
the global and national levels. Principle 1 of the Stockholm Declaration linked
environmental protection and human rights by stating that "[M]an has the fundamental
right to freedom, equality and adequate conditions of life, in an environment of a quality
that permits a life of dignity and well-being, and he bears a solemn responsibility to
protect and improve the environment for present and future generations." Today, the
right to environment is directly mentioned in the International Covenant on Economic,
Social and Cultural Rights in Article 12(2) which states that "[T]he steps to be taken by
the States Parties to the present Covenant to achieve the full realization of this right
shall include those necessary for ... (b) The improvement of all aspects of environmental
and industrial hygiene" (The Right to A Healthy Environment, http://www1.umn.
edu/humanrts [Accessed on October 4, 2013 - Ed.]).

Some treaties that contain environmental obligations for States include the 1972
World Heritage Convention, the 1985 Vienna Convention, the 1987 Montreal Protocol
on Substances that Deplete the Ozone Layer, the 1989 Basel Convention on the
Control of Transboundary Movements of Hazardous Wastes and Their Disposal, the
1992 Convention on Biological Diversity (The Right to A Healthy Environment,
http://www1.umn.edu/humanrts Accessed on October 4, 2013 - Ed.]).

Women, Children, Persons With Disabilities,

Indigenous Peoples

Women

Women, children, persons with disabilities and indigenous peoples are among the
world's vulnerable, disadvantaged and marginalized groups of people or sectors. They
have rights but these are violated.
 Women, though they comprise one-half of humanity, face persistent and widespread
denial of their basic rights. This denial restrict their choices, increase their vulnerability
to violence and make it difficult for them to obtain justice. Examples of this denial
include over half a million women continue to die each year from pregnancy and
childbirth-related causes; rates of HIV infection among women are rapidly increasing
partly because of their economic and social vulnerability, gender-based violence kills
and disables as many women between the ages 15 and 44 as cancer; women are twice
as likely as men to be illiterate; women still earn less than men, even for similar kinds of
work and many countries that have ratified the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) still have discriminatory laws
governing marriage, land, property and inheritance (The Human Rights of Women:
Advancing Human Rights: UNFPA,http://www.unfpa.org/ rights/women.htm [Accessed
on October 5, 2013 - Ed.]).

The core international human rights instruments that pertain to women and their
rights are The Declaration on the Elimination of Discrimination Against Women, Against
Convention on the Elimination of All Forms of Discrimination Against Women,
Convention on the Political Rights of Women and Dand Children in Emergency and
Armed Conflict.

Children

Although they are the world's future, children across the globe are denied their
rights. They are exploited, abused, maltreated, deprived of education, sold, subjected to
cruel methods of punishment, and discriminated against. These children are the street
children, child workers, child brides, child combatants, child abductees, child offenders
living lives without parole, child refugee and children without education.

Children as human beings have rights and because of their vulnerability are in need
of special care, attention and protection. The full range of human rights that children
should enjoy is found in the Convention on the Rights of the Child, the first legally
binding international instrument on children's rights. This Convention enumerates three
(3) basic rights that children everywhere should have, namely, the right to survival, the
right to develop to the fullest, to protection from harmful influences, abuse and
exploitation, and to participate fully in family, cultural and social life (UNICEF
Convention on the Rights of the Child, http://www.unicef.org/crc[Accessed on October
4, 2013 - Ed.]).

To prevent the growing abuse and exploitation of children worldwide, the UN General
Assembly in 2000 adopted two (2) Optional Protocols to the Convention. The first is the
Optional Protocol on the involvement of children in armed recruitment and requires
States to do everything they can to prevent children under the age of 18 from taking
direct part in hostilities. The second is the Optional Protocol on the sale of children, child
prostitution, and child pornography that draws special attention to the criminalization of
serious violations of human rights and emphasizes the need for public awareness and
international cooperation to combat them (Ibid.).

Persons With Disabilities (PWDs)

Article 1 of the UN Convention on the Rights of Persons With Disabilities (2008)

defines persons with disabilities as those "who have long-term physical, mental,
intellectual or sensory impairments, which in interaction with various barriers may hinder
them full and effective participation in society on an equal basis with others." Republic
Act No. 7277 (Magna Carta for Disabled Persons), 1992, defines them as "those
suffering from restriction or different abilities, as a result of a mental, physical or sensory
impairment, to perform an activity in the manner or within the range considered normal
for a human being."

The United Nations estimates that there are 50 million PWDs in the world today.
Due to war and destruction, unhealthy living conditions, or the absence of knowledge
about disability, its causes, prevention and treatment, the number increases every year
(Persons with Disabilities, http://www.hrea.org/index.php [Accessed on October 4, 2013
- Ed.J). The World Health Organization (WHO) estimates that 15% of the world's
population has a disability and the prevalence is higher in post-conflict countries.

PWDs suffer from discrimination and often do not enjoy the same opportunities like
other people because of lack of access to essential services. These vulnerable groups
that face discrimination include women, children, elders, victims of torture, refugees,
displaced persons and immigrant workers (Persons with Disabilities, http://
www.hrea.org/index.php [Accessed on October 4, 2013 - Ed.]).

The international instruments and documents that pertain to PWDs are Declaration
on the Rights of Mentally Retarded Persons (1971), Declaration on the Rights of
Disabled Persons (1975), Declaration on the Rights of Deaf-Blind Persons (1979),
Convention No. (59) concerning Vocational Rehabilitation and Employment (Disabled
Persons, 1983), Principles for the Protection of Persons with Mental Illnesses and the
Improvement of Health Care (1991), Standard Rule on the Equalization of Opportunities
for Persons with Disabilities (1993), Beijing Declaration on the Rights of People with
Disabilities (2000) and Convention on the Rights of Persons with Disabilities (2007).

Indigenous Peoples
 Indigenous peoples are those that have historically belonged to a particular region
or country before its colonization or transformation into a nation, state and may have
different - often unique cultural, linguistic, traditional, and other characteristics to those
of the dominant culture of that region or state (United Nations Permanent Forum on
Indigenous Issues, http://www.globalissues. org/article [Accessed on October 4, 2013 -
Ed.]). In 2010, there were approximately 370 million indigenous people spanning 70
countries worldwide.

In the Philippines, indigenous peoples are estimated to comprise 10% of the

population of about 100 million. They generally live in geographically isolated areas with
poor access to basic social services and limited opportunities for mainstream economic
activities. They lack education and have inadequate political representation. But
minerals, forests and rivers can be found where they are and make them vulnerable to
development aggression (Guia-Padilla, 2011, p. 262).

The UN Declaration on the Rights of Indigenous Peoples (2007) recognizes that

indigenous peoples have suffered from historical injustices as a result of, among others,
their colonization and dispossession of their lands, territories, and resources, preventing
them from exercising their right to development based on their needs and interests. It
also acknowledges the urgent need to respect and promote the inherent rights of
indigenous peoples which are derived from their political, economic, and social
structures, from their cultures, spiritual traditions, histories, and philosophies.

The UN Declaration on the Rights of Indigenous Peoples is the most comprehensive

instrument detailing the rights of indigenous peoples in international law and policy,
containing minimum standards for the recognition, protection and promotion of these
rights. These rights include the right to self-determination, right to lands, territories and
resources, right to health, education, employment, housing, sanitation, social security
and an adequate standard of living, right not to be subjected to assimilation or
destruction of their culture, the right to practice and revitalize their cultural traditions and
customs, etc.

Chapter 6
REMEDIES AND PROCEDURES FOR
RESPONDING TO HUMAN RIGHTS
VIOLATIONS AND HUMAN RIGHTS ABUSES
Human Rights Violations

These are acts committed by or at the instigation of or with the consent of a public
official or other person acting in an official capacity contrary to human rights law,
causing bodily or mental pain or suffering or death. They occur when State actors abuse
or deny basic human rights.

R.A. No. 10368 (The Human Rights Reparation and Recognition Act of 2013)
defines human rights violation as any act or omission committed during the period from
September 21, 1972 to February 25, 1986 by persons acting in an official capacity
and/or agents of the State and includes any illegal search, arrest and/or detention, any
affliction of physical injury, any enforced or involuntary disappearance, force or
intimidation causing the involuntary exile of a person from the Philippines, any act or
force, intimidation or deceit causing unjust or illegal takeover of a business, etc.

Traditionally, when non-State actors (rebels, insurgents, nongovernmental entities)

commit these transgressions or violations of human rights, their actions are called
crimes. Today, they are also considered human rights violations. In the Comprehensive
Agreement on Respect for Human Rights and Respect for International Humanitarian
Law, signed by the Government Peace Panel and the CPP/NPA/NDF Peace Panel on
March 16, 1998 violations committed by rebels are called human rights abuses.

Remedies

Rights and remedies are inseparable. For rights to be fully enjoyed and for rights to
be amply protected from harm, injury and assault, originating from State and non-State
actors, remedies must be in place and readily available anytime and anywhere.

Good there are domestic remedies and non-domestic or international remedies that
are found in Constitutions, statutes and international instruments. As violations occur
and become intense, remedies are invented to cope up with the indignities and abuses.

Domestic remedies

Domestic remedies may take the form of civil remedies, criminal remedies and
administrative remedies.
 A human rights victim can file a civil action for damages in the appropriate trial
courts under Article 32 of the Civil Code. This may be proved only by a preponderance
of evidence. Moral damages, exemplary damages, costs of suit and attorney's fees may
be awarded by the court as indemnity.

The civil liability under Article 32 of the Civil Code is separate and independent from
the civil liability that springs from criminal liability under Article 100 of the Revised Penal
Code.

Civil sanctions as an offshoot of a civil remedy availed of by a human rights victim

is acknowledged and affirmed by Section 12(4), Article III (Bill of Rights) of The 1987
Constitution, by Section 21 of the Supreme Court's A.M. No. 07-9-12-SC (The Rule on
the Writ of Amparo), Section 20 of the Supreme Court's A.M. No. 08-1-16-SC (The Rule
on the Writ of Habeas Data) and Section 1, Rule 10 of Supreme Court's A.M. No. 09-6-
8-SC (The Rules of Procedure for Environmental Cases).

Like civil sanctions, penal sanctions are acknowledged and affirmed by Section
12(4), Article III (Bill of Rights) of The 1987 Constitution, by Section 21 of the Supreme
Court's A.M. No. 07-912-SC (The Rule on the Writ of Amparo), Section 20 of the
Supreme Court's A.M. No. 08-1-16-SC (The Rule on the Writ of Habeas Data) and
Sections 1-3, Rule 9 of the Supreme Court's A.M. No. 09-6-8-SC (The Rule of
Procedure for Environmental Cases).

The human rights victim may opt to file a complaint with the Commission on Human
Rights whose task is solely fact-finding investigation. After investigation, prosecution will
be handled by the Department of Justice until case is resolved by the court. The
complaint can be filed for specific crimes relating to categories of human rights
violations like crimes violating the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures (e.g ., crimes
under the Revised Penal Code like Article 124 [crime of arbitrary detention], Article 269
[unlawful arrest], Article 125 [delay in the delivery of detained persons], Article 128
[violation of domicile], Article 129 [act of maliciously obtaining search warrants and
abuse in the service of warrants], Article 130 [searching a domicile without witnesses]);
crimes violating the right to freedom of assembly (e.g ., Article 131 [prohibition,
interruption and dissolution of peaceful meetings], Article 153 [tumults and other
disturbances of public order]); crimes violating the right to freedom of religion (e.g. .,
Article 132 [interruption of religious worship], Article 133 [offending the religious
feelings]); crimes violating the right to freedom from involuntary servitude (e.g. ., Article
272 [slavery], Article 273 [retaining a minor in his service against the former's will],
Article 274 [compelling another to work for him against his will as a household servant
or farm laborer]; crimes violating the right to life (e.g. ., Article 246 [parricide], Article 249
[homicide], Article 255 [infanticide], Article 256 [intentional abortion], Article 257
[unintentional abortion], Article 262 [mutilation], Article 263 [serious physical injuries],
Article 265 [less serious physical injuries], etc.); crimes violating the prohibition on
torture (e.g.., Article 235 [maltreatment of prisoners], Articles 262-266 [offender is not
vested with custody of the prisoner but commits only physical injuries]) and crimes
violating the rights to liberty of abode (e.g ., Article 127 [expulsion], Article 268 [grave
coercion]) (Muyot, 1999, pp. 389-395).

Since human rights violations are crimes under the Revised Penal Code, a human
rights victim can file a criminal complaint direct to the Office of the Prosecutor (City or
Provincial Prosecutor).

Administrative Remedies

Administrative remedies for human rights violations are acknowledged and affirmed
in Section 12(4), Article III, Bill of Rights, The 1987 Constitution, The Revised
Administrative Code of 1987, Section 21 of the Supreme Court's A.M. No. 07-9-12-SC
(The Rule on the Writ of Amparo) and Section 20 of Supreme Court's A.M. No. 08-1-16-
SC (The Rule on the Writ of Habeas Data).

Under the Revised Administrative Code of 1987, the heads of the bureaus or office
has the authority to discipline his employees in line with Sections 30 and 36 of Chapter
6, Book IV, Revised Administrative Code of 1987.

International Remedies

The international remedies for human rights violations and human rights abuses are
based on treaties and non-treaty procedures.

Based on treaties, the mechanisms for the enforcement of human rights are the
reporting requirement to ensure State compliance with treaty obligations, the
investigation of communications to determine breaches of treaty obligations and the
investigation, prosecution, and trial of human rights violators under the Rome Statute of
the International Criminal Court.

Based on non-treaty procedures are the Public 1235 Procedure, the 1503
Procedure established by Resolution 1235 and Resolution 1503 of the Economic and
Social Council (ECOSOC) in 1967 and 1970, respectively.

The Reporting Requirement

 State Parties are generally required by the treaties to periodically submit reports to
the Secretary-General of the United Nations or to the monitoring body created by the
treaty. These reports give a comprehensive account of the measures adopted by the
State Parties to apply the provisions of the UN Conventions. They also contain an
elaboration on the progress that the State Parties have achieved to fulfill their
obligations under the Covenant concerned as well as the factors and difficulties that
may retard their progress (Muyot, 1999, p. 376).

This reporting requirement is found in treaties like the International Covenant on

Economic, Social and Cultural Rights, the International Covenant on Civil and Political
Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the
Convention Against Torture, Convention on the Elimination of All Forms of
Discrimination Against Women, the Convention on the Rights of a Child, etc. (p. 376).
Investigation of Communications/Complaints

This procedure under the quasi-judicial practice of the Human Rights Committee is
the most effective human rights complaints systems at the universal level. As of January
1999, 95 of the 144 State Parties to the International Covenant on Civil and Political
Rights, including most of the former Communist States of Europe as well as an
increasing member of Latin American and African States were parties to the First
Optional Protocol and submit themselves to the jurisdiction of the Human Rights
Committee in cases of alleged individual human rights violations. A total of 844
individual communications/complaints relating to 59 States have so far been dealt with
by the Committee. Communications numbering 248 were declared inadmissible and
308 were decided on their merits. In 236 cases, a violation of one or more Covenant
rights by the States Parties concerned, above all by Uruguay and Jamaica, has been
established (Nowak, 1997, p. 95).

Under this procedure, only individuals and not groups, NGOs or other legal entities,
may submit a communication to the Committee under Articles 1 and 2 of the Optional
Protocol. The Committee's decisions on the merits of the case are structured like court
judgments. Individual members may add their dissenting or concurring opinions to the
decisions. The lack of legally binding effects and of any sanctions against non-
cooperative governments remain the most serious shortcoming of this procedure(pp.96-
97).

The International Criminal Court

The Rome Statute establishing the International Criminal Court legal initiatives
(ICC) is considered in the history one of of the modern most law ambitious and the
international ICC as the important new institution for human rights in the new century.
Unlike the International Court of Justice which deals with States, the ICC deals with and
has the power to investigate, prosecute, and convict individuals.

The Rome Statute was adopted on July 17, 1998, after a five-week plenipotentiary
conference in Rome. On April 11, 2002, a special treaty event was organized at the
United Nations at which 10 states deposited their instruments of ratification triggering
the entry of force of the Rome Statute on July 1, 2002. As of 2003, 92 nations have
ratified the Rome Statute of the ICC and 139 States have signed the treaty (The NGO
Coalition for the International Criminal Court, 2003, iii).

Unlike domestic or national courts, the ICC exercises international jurisdiction over
criminals. This addresses the problem of preventing human rights violators and
criminals who may have escaped from the national jurisdiction where they committed
serious crimes, namely, genocide, crimes against humanity, war crimes and aggression
(Colmenares, Primer on the International Criminal Court, pp. 3-4).

There are three (3) ways by which an investigation by the ICC may be initiated.
These are: (1) a State Party may refer as "situation" to the Prosecutor, where it appears
that one or more crimes within the jurisdiction of the Court was committed; (2) the
Security Council may refer a "situation" to the Prosecutor; and (3) the Prosecutor may
initiate investigation motu proprio or on her own, on the basis of information received
from any reliable source as to the commission of crimes. Prosecutor then applies for a
warrant of arrest with the Court's Pre-Trial Chamber for the arrest and surrender of the
suspect. If approved, a warrant of arrest shall issue (pp. 16-17).

The Public 1235 Procedure

Economic and Social Council (ECOSOC) Resolution 1235 authorizes the

Commission on Human Rights [consists of 53 members who are elected by the
Economic and Social Council (ECOSOC)] and the Sub-Commission on Prevention of
Discrimination and Protection of Minorities (composed of 26 human rights experts
nominated by their governments and elected by the Commission on Human Rights) to
debate, during their annual sessions, the question of the violation of human rights and
fundamental freedoms. The Commission and Sub-Commission may examine
information relevant to gross violations of human rights in their public sessions
(Flinterman, 1997, pp. 144, 147).

Information on human rights violations may be furnished by States (both members

and non-members of the Commission), by members of the Sub-Commission and by
non-governmental organizations (NGOs) with consultative status with the United
Nations. NGOs attending the annual sessions of the Commission and Sub-Commission
actively participate in the debates of these organs. The Sub-Commission is authorized
to adopt resolutions on the situation of human rights violations in specific countries but
may not take further action. It is only the Commission that is mandated to take action it
deems necessary with regard to human rights violations in any part of the world.

The Confidential 1503 Procedure

Resolution 1503 adopted by the ECOSOC provides for a confidential complaints

procedure in order to deal with communications indicating a consistent pattern of gross
and reliably attested violations of human rights and fundamental freedoms. Individuals,
groups and organizations may submit complaints to the Secretary General for
confidential examination by the Commission and Sub Commission. The admissibility
criteria specify, among them, that a complaint may not be anonymous and may not
contain insulting or abusive language.

The Commission declares by a simple majority on the issues before it. It may decide
to keep the matter under review, to undertake further study, to appoint a special
rapporteur with a mandate to submit a confidential report to the Commission or to
transfer the situation from the confidential 1503 procedure to the Public 1235
Procedure. It may also make recommendations to ECOSOC which deals with such
recommendations in its public meetings. Although ECOSOC cannot take any binding
decisions, a public condemnation by ECOSOC of the human rights violation in a specific
country puts pressure on the government concerned to take its human rights obligations
under the UN Charter seriously (pp. 148-149).

Special Country Rapporteurs and Thematic Rapporteurs

The Commission on Human Rights has, over the years, developed two (2) types
of instruments to supervise implementation of human rights around the world pursuant
to ECOSOC Resolution 1235. First, it has appointed specific country rapporteurs and
working groups mandated to report annually to the Commission on the development of
human rights situation in the country for which they have been appointed. Such
supervision by the international community over the human rights situation in a specific
country puts pressure on the government of the State concerned to improve its human
rights record.

The other instrument developed in the early 1980s is the thematic rapporteurs or
working groups. The thematic rapporteurs or working groups already formed were on
the issues of involuntary disappearances, torture, extra-judicial executions, arbitrary
detention, freedom of expression, xenophobia and racism, and violence against women.
These thematic rapporteurs or working groups may examine relevant information from
all reliable sources about violations of human rights wherever they occur in the world.
They may also visit specific countries, with the consent of the government concerned.
They submit their annual reports to the Commission and these annual reports survey
the information received by the special thematic rapporteurs, the replies by
governments and their lack, the actions taken by the special rapporteur and any general
comments or recommendations the special rapporteur may wish to submit (pp. 147-
148).