Human Rights Reviewer (Finals) event meeting of States

Pointers:
A. Nature of International Human Rights Law
(Lecture)
W Two views of Conception
1. Orthodox (Philosophical)
2. Practical (Political)

Orthodox Practical
defines human rights as human
those rights
rightsthat
define
eacha human
boundary
hasof
against every other the virtue of humanity.
-more familiar in philosophical sensepolitical action
***legitimate
-inherent, inalienable

-more familiar in
political sense
-not ideal

*** legitimate political action

- The STATE as state actors/ agents
guarantee Human Rights
- Practical view in HR specify how
the state actors must and must not
act toward their citizens
- Any HR violation can be demanded
against the State through interference
by international community
the

B. Sources of International Human Rights Law

(Lecture + Petralba pp.28-39) [tig-jd]

1. Treaties/International Agreements
2. International Customary Law
3. General Principles of Law
4. Judicial Decisions and TMHQP

1. Treaties/International Agreements
- Commonly treaties
- Entered into between sovereign
states who agreed to bind themselves
bilaterally the undertaking to faithfully
comply with the provision of State
- Agreed by sovereign for
common CAUSE

a.How treaties are made

1) Delegation of States
- Conference Conventions or the
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 2) Set terms, provisions, conditions,
and proposals through the
President/ Chief Executive
3) Concluded agreement will be
SIGNED by the Heads of the State
W Implication: Signing is mere expression of
intention to be bound by the agreement
W Obligation: to undergo procedure on
respective countries
W In PHILIPPINES: Treaties of any kind
require concurrence of the Senate, i.e. 2/3
votes of ALL members of Senate

b. Doctrine of PSS and CRSS

1) Doctrine of pacta sunt servanda

- Compliance with international law that
“agreement must be kept”
- It entitles the State to require obligations
be respected and to rely upon the
obligations being respected

2) Doctrine of clausula rebus sic stantibus

- Legal principle which allows for treaty
obligations to be unfulfilled due to a
FCIC (fundamental Qchange in
circumstances)

Q: What constitutes FCIC? A:

- Must be something that was never
contemplated
- It should have resulted in a radical
transformation of the | extent of the
obligations imposed

c. Cases
O Prefect of La Gironde v Mahmedi
- French government suspended a clause
in an international treaty with Morocco
which exempts the Moroccan nationals
from VISA requirements.
- This was done on the ground of a
FCIC of the wave of terrorist attacks in
Paris
O UK v Iceland
- The advancement of fishing
machineries of UK is not an FCIC since
there is already contemplation of
improvement

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O Germany v Iceland
- the change of circumstances alleged
by Iceland cannot be said to have
transformed radically | the extent of
the jurisdictional obligation imposed
- the dispute relating to an extension
of Icelandic fisheries jurisdiction is
exactly of the character anticipated
in the compromissory clause of the
Exchange of Notes
2. International Customary Law
a. Requisites
1) Objective element – settled state
practice
2) Subjective element – “belief” that
the settled practice is obligatory
W Practice: must be:
1. uniform and consistent
2. participation is widespread and
representative
W North Continental Shelf
- Principle of equidistant
b. Jus cogens or peremptory norm –
- “compelling law” which is superior
to all sources of human rights
W Requisites of jus cogens [pard-mo]
1) It must be a peremptory (non-
derogable) norm of general intl
law
2) It must be accepted and recognized
by international community
3) There must be no derogation
permitted
4) It can only be modified by a
subsequent norm of general intl
law of the same character
c. Principle of non-use of force
W Art. 2.4 of Charter of the UN
All Members shall refrain in their
international relations from the threat or
use of force against the territorial
integrity or political independence of any
state, or in any other manner
inconsistent with the Purposes of the
United Nations.
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W 2 views
1) Permissive view – does not lay
total ban on the use of force;
permitted to use of force in:
(1) anticipation of future attack
(2) rescue nationals abroad
(3) humanitarian intervention
(4) regime change (intervention for
democracy
2) Restrictive View – total ban on the use
of force except:
(1) *self-defense (Art 51; Charter)
(2) enforcement action (Chapter VII;
Charter)
W Basic rule: threat or use of force is
prohibited
XPN: self-defense
W Force – “armed force” and not other
means of political or economic
pressure Nicaragua v. USA - Indirect
use of force is also prohibited
Threat of force – also prohibited;
ultimatum announcing recourse to
military measures
W *Self Defense – Art 51; UN Chapter
- The right of individual or collective self-
defense is restricted in an armed attack
occurs
Nicaragua v. USA – armed attack
must be understood to include the
sending by/on behalf of a State of
armed bands or groups of such gravity
that amount to actual armed attack
conducted by regular forces
O Nicaragua v US
- Nicaragua claimed that US used armed force
by laying mines in Nicaraguan waters and
that US gave assistance in Nicaraguan
guerillas (contras) to overthrow the
Nicaraguan government
- US argued that its activities was justified as
collective self-defense in response to
Nicaragua’s act of supporting the rebels in
El Savador (friendly country of US)
- Ruling:
- > 1. mere supply of funds to the contras,
while undoubtedly an act of
*intervention in the internal affairs of
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 Nicaragua, does not in itself amount to
use of force
- >>note: principle of non-intervention
FORBIDS all States to intervene directly or
indirectly in internal/external affairs of other
States
- >>note: intervention is wrongful when it uses
methods of coercion (coercion is present in
case; direct form – military action; indirect
form – support for subversive
groups/terrorist)
- >2. Use of force is NOT ALLOWED
except the right of self-defense
- 3 criteria of self-defense
- (1) armed attack; (2) necessity of
self- defense; (3) proportionality
- In case of “collective self-defense”, the
3 criteria + “request” by the victim of
armed attack
O Pretty v UK (2002)
- Right to life could not be interpreted
as conferring a right to die
- States must refrain from the
unlawful taking of life and
- State shall take appropriate steps to
safeguard lives
- Right to life is not corollary to the
right to die
O Purdy v UK (2014)
- Right to be respected of her life
3. General Principles of Law
- Art 38(1) of Statute of ICJ- The Court,
whose function is to decide in accordance
with international law such disputes as are
submitted to it, shall apply:
a. international conventions, whether general
or particular, establishing rules expressly
recognized by the contesting states
- General principles “recognized” by
States
- Principles of municipal law should be
regarded as sources of inspiration rather
than as sources of rules of direct
application
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4. Judicial Decisions and TMHQP
- TMHQP – Teachings of the most highly
qualified publicists of the various
nations
- can be referred to, not as a source of law
as such, but as a means of recognizing
the law established in other sources
- There is no rule of stare decisis in
international law. The decision of the
Court has no binding force except
between the parties and in respect of
that particular case but it may refer to its
past decisions and opinions.
(Petralba, pp.40-79)
1. UDHR
Universal Declaration of Human Rights
- declaration adopted by the UN General
Assembly
- ideal standard held in common by
nations around the world, but it bears
no force of law.
- is a fundamental constitutive document
of the United Nations
- widely cited in protecting the
recognized human rights
2. ICCPR
International Covenant on Civil and
Political Rights
- multilateral treaty adopted by the
UN GA
- It commits its parties to respect the civil
and political rights of individuals
3. ICESCR
International Covenant on Economic,
Social and Cultural Rights
- multilateral treaty adopted by the
UN GA
- It commits its parties to work toward
the granting of economic, social, and
cultural rights (ESCR) to the Non-
Self- Governing and Trust
Territories and individuals
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Rights and Freedoms
ICCPRICESCR Ex.
[led-fair][LHEL] ECHRInter-American CHR
right to life,1. labor rights Prohibition onProhibition torture andagainst slavery
electoral rights2. right to health slaveryand torture Non-retroactivityProhibition
rights to due3. right to processeducation of lawsagainst ex post facto law
right to a fair4. right to an trialadequate
standard of living
[
freedom of religion
freedom of speech
freedom of assembly

W Clawback clauses/ limitations

- absolute rights are however subject to
“exceptions”

PRIMARY POSITION of hierarchy of

rights
(Lecture)
1. Domestic Jurisdiction
W States have no right to encroach on
another State’s internal affairs

Based on principle of Equality and
Sovereignty – State is free to choose any
political, econ, soc and cultural system
whatever it likes

& based on principle of non-
intervention
– forbids all States to intervene D/I in
internal/external affairs of other States

2. The Exhaustion of Domestic and

Local Remedies Rule
W It prevents any litigant from seeking
recourse from international
mechanisms until all remedies have
been exhausted or settled within the
State.
W Litigant is not necessary required to
bring up the case to the Intl Court

W case should be submitted first
within State’s decision because of
State’s Sovereignty

3. Priorities of Rights
- relates to the non-derogability of
rights which rights occupy the
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(Lecture)
1. United Nations
- international body
- composed by community of nations
- 193 member States
- Founded in 1945 (Sec Gen
Ban Kichmoon)

2. Principal Organs
1) GA
2) SC
3) EcoSoc Council
4) Trusteeship
5) Int’l Court of Justice – The
Hague (Netherlands)
6) Secretariat

1) General Assembly
- deliberative policy-making
- representative of the UN System
- setting the Standards of Laws and
codification of laws

2) Security Council (SC)

- promotion/maintenance of
peace and security
- peaceful settlements of disputes

3) Economic and Social

Council (EcoSoc)
- ❤ of UN Council
- provides the 3 dimensions of
Sustainable Development (econ,
soc, envi)

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 4) Trusteeship Council W Genocide
- Ensures trust territories (colony) not - any of the following acts committed
capable of self-governance by with intent to destroy, in whole or
being administered by another in part, a national, ethnical, racial
Sovereign State (UN TC) or religious group, as such:
- To promote the advancement of 1) Killing members of the group;
habitants 2) Causing serious bodily or mental
- Achieve the aim of independence harm to members of the group;
and self-governance 3) Deliberately inflicting on the group
- NOTE: TC is suspended in Nov 1, conditions of life calculated to bring
1994; Palau – last trustee about its physical destruction in
whole or in part;
4) Imposing measures intended to
5) Int’l Court of Justice – The Hague prevent births within the group;
(Netherlands) 5) Forcibly transferring children of the
- PRIMARY judicial arm/ organ of group to another group
the UN
W The term “as such” has great
6) Secretariat significance, for it shows that the
- ADMINISTRATIVE arm of UN in offence requires intent to destroy a
its day to day event collection of people who have a
particular group identity
W Heart of the crime: – desctruction
(Lecture) of groups
1. The Protection of the collective rights
of groups and individuals W PROTECTIVE GROUPS
- The law protects four groups -
purely Right to life national, ethnical, racial or religious
individual Freedom of expression
Freedom of assembly (necessarily need another)
groups. (defn: Akayesu case)
individual but necessarily expressed
Freedom collectively
to manifest 1) national group - collection of
one’s belief people who are perceived to share a
Freedom to self- determination
purely collective rights legal bond based on common
Freedom to be protected to the prohibition of genocide
Freedom to express one’s culture, language, religioncitizenship, coupled with
= ethnic minorities
reciprocity of rights and duties
2) ethnical group - generally defined
as a group whose members share
collective & manifestation of individual rights
a common language or culture
3) racial group - based on the
hereditary physical traits often
identified with a geographical
region, irrespective of linguistic,
cultural, national or religious factors
4) religious group - one whose
members share the same religion,
2. Prohibition of Genocide (Read also: denomination or mode of worship
Protected or Victim Groups)
- Convention Prevention on Prohibition
on the Crime of Genocide

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 3. The Prohibition of Racial as distinct from the Other
Discrimination
1965 UN International Convention 2) External Kind
on the Elimination of All Forms of - People as a group desires to
Racial Discrimination defines: establish their own State
W Racial Discrimination - shall mean
any (derp)- rcde
>distinction, >exclusion, >restriction, or
>preference based on
race, colour, descent, or natl ethnic origin
or that has the purpose of the
nullifiying & impairing the Recognition Exerciseof Enjoyment

HR or
Fundamental freedom of PECSCr or any other field of public life

W Art 2(1) of ICCPR

State party shall respect & ensure the
individuals its rights preset in the
covenant without distinction of any kind,
such as race, colour, sex, language, religion,
political or other opinion, national or
social origin, property, birth or other
status.

W Art 26 of ICCPR
All persons are equal before the law and are
entitled without any discrimination to the
equal protection of the law.
Any discrimination is prohibited
All persons shall be guaranteed equal and
effective protection against discrimination
on any ground such as race, colour, sex,
language, religion, political or other opinion,
national or social origin, property, birth or
other status.

4. The Principle of Self-Determination (2

Expressions)
W Self-determination
- Purely collective right
W 2 Expressions
1) Internal Kind
- SD within the realms of State
- Ex. BBL – by asserting its group
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 - Ex. Kosovo – by disassociating
the group from the State they
belong to

5. The Protection of Minorities

W Minorites
- They are treated as minority
because: (2 views)
1) Outsider-looking in concept
- Groups does not belong to
the mainstream
2) Insider-defining concept
- See themselves as minority

O Lovelace v Canada
- Their right to be protected
was violated
- State should not prevent them
from their enjoyment of their
culture
W Art. 27 of ICCPR
In those States in which ethnic, religious
or linguistic minorities exist, persons
belonging to such minorities shall not
be denied the right, in community with
the other members of their group, to
enjoy their own culture, to profess and
practice their own religion, or to use their
own language.

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 1. Four Organs and their Divisions
(Lecture)

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 2. Jurisdiction of ICC and some c. Ratione soli (where)
Exceptions (Lecture) - Principle of territoriality
Art 5 of the Rome Statute
Jurisdiction
W 4 principles that must concur of the ICC
a. Ratione materiae (what) 1.a Crime is
b. Ratione temporae (when) committed in territory of State party (SP)
c. Ratione soli (where) 1b. Crime is committed in territory of SP (not ratifying State) b
2a. If the person who committed the crime is a citizen of the SP
d. Ratione personae (who)
2b. If the person who committed the crime is NOT a citizen of t
e. + How >(2b)If the person who committed the crime is NOT a citizen of
f. + notice >does not recognized the juri of ICC
>crime is committed in the territory non-SP
a. Ratione materiae (what)
- Cases that fall under jurisdiction of
ICC that is, most heinous/ serious
crimes concerned to ICC as a whole
1) Genocide ✘
- See Genocide section
2) Crimes against Humanity
- Widespread/systematic attack
against civilian ✘✘✘✘✘
3) War Crimes
- Violation of provisions in Geneva
Convention
4) Crimes of Aggression
- not defined in Rome Statute
- (2010) Review Conference Kampalla
Amendment
- Any initiation, planning,
preparation or execution of acts
resorting to the illegal use of d. Ratione personae (who)
armed forces - Citizen of SP
threatening the sovereignty,
territorial integrity or political +
independence of another State e. (5.) How – 3 ways
1) Initiated by the Prosecutor himself
b. Ratione temporae (when) 2) SP initiates the
- Crime that are alleged to be investigator/ prosecution of
committed after July 1 2002 fall under the case
ICC 3) Victim: when it initiates, the case
- Any case before July 1, 2002 cant goes to Pretrial Chamber to assess
be taken cognizance by ICC WoN the alleged crime is cognizable
- On the 1st day of the month by the ICC
following the 60th day of deposit If the 4Ws concur, the Pretrial
Chamber will transmit to prosecutor

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 W Q: If a State is not party, is there no - State decided not to prosecute the
way for it to be brought in the ICC? case through Decision/ Resolution
also not citizen of the SP - ex. there’s no probable cause
A: Yes, (xpn) When the situation of the
case is referred to Office of the 3) There is trial on accused/
Prosecutor by the UN Security Council
perpetrator XPT if there is
- NOTE: UN Security Council - responsible
showing that the conducted
for promotion of advancement and
hearing was:
preservation of peace
a. Trial is perfunctorily conducted
W If the case is referred to UN Security - Just to show that the conduct
Council, there’s no need Ratione Soli of trial was complied with to
save the perpetrator from
to be complied
Criminal responsibility in the
- Chapter 7 of the UN Charter ICC
- Acts that threaten peace and security of b. The judges were impartial/
breaches of Peace or Acts of lack of independence
Aggression
- Not needed that he is citizen of SP W ICC can send its members in other
State for proper administration of
f. (6) Aside from 4W’s, NOTICE is very justice
important to be issued to the State Party &
the alleged perpetrator.
3. Concept of Superior/ Command
W Key Feature of the JCC Responsibility (Petralba, pp. 137-138)
✓ Complementarity
✓ Basic rule in Int’l Humana Rights
W Doctrine of Greatest Responsibility
Law - One who has the greatest responsibility
✓ Seeming violation of crime that
for the crime committed will be
is widespread and systematic brought in the ICC
attack
✓ Not directed to ICC first BUT
first tried in National Laws
O Doctrine of Exhaustion
of Remedies
O Principle of Complementarity
- National Courts: Nat’l Laws
✓ ICC: Court of Last Resort

W Case will be outright inadmissible

by ICC if not exhausted remedies
Instances: [PAp-Tpi]
1) Prosecution stage at SP
XPN: showing Nat’l Prosecutor/
Investigator is unwilling. Unable to
properly investigate/ prosecute
- matter of proof and require
cooperation of NGO,
Intergovernmental Entities or other
concerned agencies

2) Case already properly

prosecuted/investigated

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