HUMAN RIGHTS 3D | ATTY.
TEMPROSA
NATURE AND BASIC PRINCIPLES
OF HUMAN RIGHTS
I. WHAT IS A HUMAN RIGHT (Video UN Human Rights)?
Because we are human beings, there are things that our government must
do
Everyone has them – man, woman, children
1. Respect. Avoid putting limits to what a person can do.
2. Protect. Safeguard person from abuse.
3. Fulfil. Provide basic conditions to enable the person to achieve the
potential.
Most basic, minimum human standards have been written down and
discussed by countries. Countries have agreed to this and became
international law. An example on where it can be found: Constitution (Bill of
Rights). Article 3 of the United Nations Charter (promoting and encouraging
respect for human rights and for fundamental freedoms for all. Achieved
through organizations arounds the world.
- UNHR
- Committee of Experts
- Assembly of countries
II. THE STORY OF HUMAN RIGHTS
(Interview of people *not sure about what human rights is*)
Human – a member of the homo sapien species; a man, woman or child; a
person
Rights – things to which you are entitled or allowed; freedoms that are
guaranteed
Human Rights – rights you have simply because you’re human
Examples: To live freely; To speak your mind
Applies to everyone, i.e. universal
Right to Life
We are all born free and equal
Freedom of religion
Per UN, there are around 30 rights which are lumped into “human rights”.
They are found in the Universal Declaration of Human Rights.
At first, there was no human rights. If you were with the right crowd, you’re
safe. But if not, you weren’t.
CASTILLO | 1
Cyrus the Great – after conquering Babylon, he freed the slaves. Liberty to
choose religion. They engraved their words and called it Cyrus Cylinder.
Then to Greece, India, then Rome.
People naturally followed certain law, even if they were not told to; it was
called Natural Law – BUT kept getting trampled on by those in power.
In England – Magna Carta; King agreed that no one can overrule the rights
of the people, not even a Kind.
1689 – Bill of Rights
America was born; French followed. Rights were not made up.
Natural Law became Natural Rights.
Napoleon – “Emperor of the world” but was defeated.
Mahatma Gandhi – rights are rights; not just the Europe.
Hitler – killed people; human rights horrifyingly was almost extinguished.
1945 – United Nations was established. Goal was “to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person.”
1946 – under Eleanor Roosevelt; set of rights – Universal Declaration of
Human Rights
Happily ever after?
BUT; IF THE FOLLOWING ARE GUARANTEED:
- Right to food and shelter? People are dying of starvation everyday
- Freedom of speech? Thousands are imprisoned for speaking their
mind
- Education? Millions of adults still cannot read
- Slavery? A lot are still slaves now.
Problem: The UNDHR does not have the force and effect of law. It was
optional. Words in a page. Who will make those words a reality?
Marx marched. Nelson Mandela spoke up and fought. Those who fight today
are not giants or superheroes – but people, who refused to be silenced. It is
a responsibility we all share together. We are after all where the universal
human rights begin – the world of the individual person.
Unless these rights have meaning in the little places, they have little
meaning anywhere.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 2

LECTURE: - They are inalienable and universal

Atty Temprosa: Human rights are product of the modern era. These are
entitlements because you are a human. And since these are entitlements, Who enforces? How?
against whom? Primarily claimed against the State. If you have a right as a
citizen, the power of the State is somehow limited. Ruins of World War 2 – United Nations; then creation of Universal
Human rights are more than legal concepts – they are the essence of man. Declaration of Human Rights
They make us human. In his words, “deny them and you deny man’s 1. All human beings are born free and equal in dignity and rights
humanity.” 2. Freedom from Discrimination
3. Right to Life, Liberty and Personal Security
The phrase “human rights” is so generic a term that any attempt to define it 4. Freedom from Slavery or Servitude
could be at best be described as inconclusive. 5. Freedom of Movement
6. Right to Own Property
What are NOT Human Rights: 7. Expression
- Procedural Laws (Appeals) 8. Peaceful Assembly
- Something that can be waived 9. To Choose occupation
10. Education
SOURCE OF HUMAN RIGHTS: DIGNITY v. SOCIAL CONTRACT 11. And more!

Cases in PH: Universality, Indivisibility and Interdependence

Diocese of Bacolod v COMELEC IHRL – grown and developed so much. But if so, why are human rights
People v Jumawan abused and ignored time and time again all over the world?
Ocampo v Enriquez It is hard to punish transgressors. It is a declaration and not a hard law. It
cannot force States to change policies or compensate victims. Critics say it
III. HUMAN RIGHTS IN TWO MINUTES is naïve.
1948 – Recovering from Second World War; to make sure such atrocities
won’t happen again – search for shared values began; people unite around a Question also its universality – general bias on civil political liberties over
strong symbol: The United Nation Declaration of Human Rights. socio political rights; and of individual rights over group.

Everyone benefits of them from birth. Not all are powerless – European Court of Human Rights. It issues binding
decisions.
Human Rights – absolutely necessary to live well
Human Rights – constantly developing.
Civil & Political Liberties
And, now increasing internet experience – should there be a right to
Rights are interdependent, indivisible, and interrelated. internet?

Who does what? Not a legislative text. A declaration. Most states have
integrated this in their Constitution.

IV. WHAT ARE THE UNIVERSAL HUMAN RIGHTS –

BENDETTA BERTI
Idea of Human Rights – entitled to the same basic rights, regardless of who
you are
- They are not privileges
- They cannot be granted or revoked
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SAS v FRANCE (Digest from 3D 2021)
Fact: A law was enacted to prohibit the wearing of veil. Questioned before
the European Court of Human Rights. Applicant was Muslim.
Applicant’s arguments
1. She would suffer harassment and discrimination for wearing the
veil, and this would amount to degrading treatment.
2. The law would violate her right to freedom of association.
3. The ban interfered with her rights to freedom of thought,
conscience, and religion.
4. The law violated here right to respect her private life.
5. That the law did not take into account cultural differences or that
visual communication was not the only form of communication.
6. The law was not necessary in a democratic society since the aims
of the State could be met by less restrictive means than a blanket
ban.
State’s arguments
1. The ban aimed to protect public safety by making it possible to
identify persons, which prevented danger to person and property
and combatted identity fraud.
2. The ban aimed to protect the rights and freedoms of others by
ensuring “respect for the minimum set of values of an open and
democratic society.”
3. The face plays the most significant role in interaction between
people, while concealing one’s face in public breaks social ties and
expresses a refusal of the principle of “living together.”
4. The ban only concerned public places and did not affect the
applicant’s physical integrity or privacy.
5. The Court has always allowed states a wide margin of appreciation
in the balancing of competing public and private interests or where
a private interest was in conflict with other Convention rights.
Court’s ruling
1. There are two legitimate aims on the part of the state: (a) the
protection of public safety and (b) the protection of the rights and
freedom of others.
2. The barrier raised against others by a veil concealing the face is
perceived by the State as breaching the right of others to live in a
space of socialisation which makes living together easier.
3. The State had a wide margin of appreciation when considering
whether limitations on the right to manifest one’s belief were
“necessary.”
1. (Atty. Temprosa: Since the Gov’t is in charge of enforcing
human rights, the gov’t has the margin of appreciation to
determine whether human rights are violated and to
balance interests.)
4. The ban was not expressly based on the religious connotation of
the clothing but on the concealment of the face.
5. The State was seeking to protect interaction between individuals
which it saw as fundamental to pluralism, tolerance, and
broadmindedness.
6. In these circumstances, the Court has the duty of restraint and the
State was to be given a wide margin of appreciation.
7. Held: France did not violate.
Atty. Temprosa:
Take note: Freedom of Religion
1. To manifest religion (Conduct) – Subject to limitations by the State
2. To Believe – Absolute
Right to Private Life – in essence, it is autonomy. “Let me do what I need to
do.”
Liberty
Egalitarianism Secularism
Fraternity
My right as VERSUS living together
Individual tolerance
POPULIST CHALLENGE TO HUMAN RIGHTS
PHILIP ALSTON
The populist agenda that has made such dramatic inroads recently is often
avowedly nationalistic, xenophobic, misogynistic, and explicitly antagonistic
to all or much of the human rights agenda. We know from President Trump
himself because he has consistently advocated measures that would
abrogate civil liberties for American citizens, not to mention non-citizens, a
great many of whom were traumatized by the very act of his election. But at
least his wrath won’t be directed only at minorities.
First, we need to maintain perspective, despite the magnitude of the
challenges. Defending human rights has never been a consensus project. It
has almost always been the product of struggle. The modern human rights
regime emerged out of the ashes of the deepest authoritarian dysfunction
and the greatest conflagration the world had ever seen. It has duelled with
and been shaped by the eras of reluctant decolonization, the cold war,
neoliberalism, and now populism.
Second, this is the start of a long-term effort; it won’t be over in four years.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
Third, the human rights movement needs to develop a spirit of introspection
and openness. Historically, it has not responded well to criticism. As long as
the critics were mainly governments seeking to defend themselves or
despairing deconstructionist scholars, it was not difficult to continue with
business as usual.
Key Issues discussed:
1. The populist threat to democracy. While this is a complex
phenomenon, much of the problem is linked to post-9/11 era
security concerns, some of which have blended seamlessly into an
actual or constructed fear and hatred of foreigners or minorities.
The resulting concerns have been exploited to justify huge trade-
offs. This is not only a strategy pursued by governments of many
different stripes, but one that has been sold with remarkable
success to the broader public.
2. The second major issue is the role of civil society. It is now
fashionable among human rights proponents to decry the fact that
the ‘space for civil society is shrinking’. But this phrase is all too
often a euphemism, when the reality is that the space has already
closed in a great many countries.
3. The third issue is the linkage between inequality and exclusion.
Populism is driven in part by fear and resentment. To the extent
that economic policies are thus critical, it is noteworthy that
mainstream human rights advocacy addresses economic and social
rights issues in a tokenistic manner at best, and the issue of
inequality almost not at all.
4. The fourth issue that I want to highlight is the undermining of the
international rule of law. This is a potentially huge area and I will
focus on just two aspects of it. The first is the systematic
undermining of the rules governing the international use of force.
Having stood by and let those different agencies operate around
the world carrying out targeted killings and other dubious acts, we
are not well placed to then turn around and say that some of the
tactics used by countries we do not like are in violation of
international rules. The assiduous efforts of government legal
advisers in countries like the United States, the United Kingdom,
and Australia to rationalize these incursions are now reaping the
rewards that they so richly deserve. It’s tragic.
5. The fifth and final issue concerns the fragility of international
institutions. The International Criminal Court (ICC) is under
sustained attack with various African states announcing their
planned withdrawals.
CASTILLO | 4
Atty. Temprosa:
Change in the way we regard human rights. Human Rights is a discourse.
We see the rise of leaders who really do not believe in human rights.
Human Rights should be an aspiration of the people. We are now seen as
an enemy of the State.
Once you are affected, believe me, you will cry human rights!
One of the problems is people think human rights can solve the problem. Not
everything is about your rights.
STATE RESPONSIBILITY, GENERAL PRINCIPLES, AND NATURAL LAW
PHILIP ALSTON & RYAN GOODMAN
Law of state responsibility for injuries to aliens - branch of international law
that was among the predecessors to contemporary HR law
- Started with disputes between a citizen-national of X and the
government of Y (usually because an injury of X’s citizens was
caused by government officials of Y)
- When a state took up the cause of one of its subjects (citizen-
nationals) in a dispute originating between that subject and
respondent state - the dispute entered the domain of IL.
- A state in reality is asserting its own rights (right to ensure, in the
person of its subjects, respect for the rules of IL).
Atty. Temprosa: How does an individual goes against the person?
See: Mavrommatis page 91: It is not the individual suing the state. It is the
state. Espousal.
Individual à wala rito! Individual has no recourse.
COMMENT ON THE CHATTIN CASE
PHILIP ALSON & RYAN GOODMAN
Facts:
- Chattin (US citizen, conductor on a railroad in Mexico) was arrested
for embezzlement of fares together with other Americans and
Mexicans and he was convicted (arrested on similar charges).
- Convicted and sentenced to 2 years imprisonment.
- Appeal was rejected in 1991
- Due to a political uprising, the inhabitants opened the doors of the
jail so Chattin escaped to the US.
- US argues that the arrest was illegal, that Chattin was mistreated
while in prison, that his trial was unreasonably delayed, and that
there were irregularities in the trial. It claimed that Chattin suffered
injuries worth $50,000 in compensation.
- Members of the Claims Commission (1 from US, 1 from Mexico)
HUMAN RIGHTS 3D | ATTY. TEMPROSA
Dissenting (Macgregor):
Issues with their corresponding rulings (Van Vollenhoven):
- Chattin claimed that he had not been duly informed of the charges.
o Chattin was generally aware of the details of the
investigation.
- Dismissed the charge that witnesses against Chatting were not
sworn.
o Mexican law does not require an oath (it is satisfied with a
solemn promise to tell the truth “protesta”), nor do
international standards of civilization
- Hearings in open court only lasted for 5 mins.
o The hearing was a pure formality in which written
documents were confirmed and defense counsel said only
a word or two.
- Hearing was pure formality. The ponente Commissioner
acknowledged that the whole of the proceedings discloses a
most astonishing lack of seriousness on the part of the Court.
o E.g. no oral examination or cross-examination during the
investigations and hearings - improbable that the accused
had a real opportunity to speak for themselves
o Even in case they were guilty, the Commission would
render a bad service to the Government of Mexico if it
failed to place the stamp of its disapproval and even
indignation on a criminal procedure so far below
international standards of civilization as the present
one.
§ It is the minimum standard
- But, the record was still sufficient to warrant a conviction of Chattin.
o No bias against American citizens since 4 Mexicans were
also convicted.
o $5000 damages was awarded.
- Standard: Whether the treatment of Chattin amounts to an outrage,
bad faith, to willful neglect of duty, or to an insufficiency of
governmental action recognizable by every unbiased man
Comments:
Concurring (Nielsen):
- Preliminary examination does not serve as a foundation for the
verdict of the judge who decided as to the guilt of the accused.
- Considering the peculiarly delicate character of an examination of
judicial proceedings by an international tribunal and the practical
difficulties inherent in such examination, Chattin should be entitled
a small award based on the mistreatment during the investigation.
(From French Law)
CASTILLO | 5
- Trial proper of 5 minutes – “there was really no trial and that Chattin
was convicted without being heard” -difference between Anglo-
Saxon procedure and that of other countries.
- IL insures that a defendant be judged openly and that he be
permitted to defend himself, but in no manner does it oblige
these things to be done in any fixed way as they are internal
matters.
o Considering that Mexican criminal procedure consisted
only of sumario (preliminary proceedings - investigation)
and plenario (plenary proceedings - public hearing which
was only formal), there was really no trial and Chattin was
convicted without being heard.
- Test: implies damage, willful neglect, or palpable deviation from the
established customs becomes clearer by having in mind the
damage which the claimant could have suffered.
- There are certain defects in procedure that can never cause
damage - not engender international liability.
- There are other defects which make it impossible for a decision to
be just - international liability arises from the decision which is
iniquitous because of such defects.
- Acts which cause per se cause damage due to their rendering a
just decision:
o To prevent an accused from defending himself (refusing to
inform him as to the facts imputed or by denying him a
hearing and the use of remedies)
o To sentence him without evidence
o To impose on him disproportionate or unusual penalties
o To treat him cruelty and discrimination
- Atty Temprosa: Individual claims are through espousal with the
State. Macgregor was saying there was no liability because it is a
domestic matter! At the end of the day, let’s see if the decision is
just or not; and if the decision really suffered damages.
- Opinions of the Commissioners underscore the methodological
problems in developing a minimum international standard of
criminal procedure out of such diverse materials
- General Claims Convention – for decision in accordance with
principles of international law, justice, and equity.
- See: Article 14 of the ICCPR dealing with criminal trials:
o All persons shall be equal before the courts (fair and public
hearing)
o Have the right to be presumed innocent
o Entitled to the ff minimum guarantees:
HUMAN RIGHTS 3D | ATTY. TEMPROSA
§ Tried in his presence and to defend himself in
person or through legal assistance
§ To examine, or have examined, the witnesses
against him.
- Building blocks of the 21st century law of state responsibility. State
responsibility today encapsulates a broad set of secondary rules
that determine such matters as when a state is responsible for an
internationally wrongful act and the remedies for a state’s breach of
primary or substance rules of IL. Rough sketch of the secondary
rules provides for the ff subjects:
1. Attribution – determine when conduct consisting of the
acts or omissions of state officials or other groups can be
considered the responsibility of the state
2. Circumstances precluding wrongfulness – provide
defenses that preclude the wrongfulness of state conduct
that is not in conformity with the state’s international
obligations. (force majeure, duress, self-defense)
3. Consequences that follow when a state breaches an
international obligation – set forth remedies that a state
must provide for violation of an international obligation.
(example: cessation, reparation, compensation, restitution,
etc.)
4. Countermeasures – regulate the permissible range of
responses to another state’s breach of international law.
- Note: State responsibility is highly focused on state-to-state
interactions.
COMMENT ON THE MINORITIES REGIME AFTER THE FIRST WORLD
WAR pp. 102-105
PHILIP ALSTON AND RYAN GOODMAN
• Treaties and other special regimes to protect minorities have a long
history in IL.
o Peace treaties sometimes included provisions on religious
minorities.
• New ambiguous concept: nation or nationality
o As distinct from the political state
o Defined in cultural or historical terms (often as a ‘people’)
• A goal in displacing the old empires with new states was to identify
the nation with the state - to give each nation its own state.
• But, a nation defined in linguistic-religious terms would generally
transcend national boundaries and be located in the territories of 2
or more states.
o E.g. A Greek-speaking Christian minority would be present
in the reconfigured Muslim Albania.
CASTILLO | 6
• Ambiguity of “national minorities” which could mean
o A group in a state belonging in the ethnic sense to a
‘nation’ that constituted a minority in that state; or
o All minorities in a state who were ‘nationals’ (citizens) of
that state
MINORITY SCHOOLS IN ALBANIA
Facts:
- Greek government proposed a draft Declaration which had
differences from the Minorities Treaties; Sec. 5 of which - nationals
who belong to the minorities will enjoy the same treatment and
security in law and in fact as nationals (in particular, equal right to
maintain religious and institutions or establishments); modified
Constitution by having private schools of all categories closed.
- Proposals for provisions going beyond the Minorities Treaties that
were related to Christian worship and to education in the Greek
Language.
- Declaration was signed by Albania. Art 5 of the Declaration states:
o Albanian nationals who belong to racial linguistic or
religious minorities will enjoy the same and security in law
and in fact as other Albanian nationals. They shall have
equal right to maintain, manage, and control at their own
expense or to establish in the future, charitable, religious
and social institutions, schools, and educational
establishments, with the right to use their own language
and to exercise their religion freely.
- In 1933, the Albanian National Assembly modified Arts. 206 & 207
of the Constitution, which had provided that Albanian subjects may
found private schools subject to government regulation.
- Complaints from minorities; Albania said that it only granted its
nationals belonging to minorities a right equal to that of nationals,
argued that in case of doubt, interpret in the sense that is most
favorable to the sovereignty of the State
Ruling:
- Albanian Declaration can be understood as tantamount to a treaty.
- Idea underlying the treaties for the protection of minorities is to
secure for certain elements incorporated in a State, the population
of which differs from them in a race, language or religion, the
possibility of living peaceably alongside that population and co-
operation amicably with it, while at the same time preserving the
characteristics which distinguish them from the majority, and
satisfying the ensuing special needs.
- No true equality between a majority and minority if the latter were
deprived of its own institutions and were compelled to renounce
that which constitutes the very essence of its being a minority.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
1. Necessary to ensure that nationals belonging to minorities shall
be placed on a footing of perfect equality with other nationals of
the state
2. Necessary to ensure for the minorities the suitable means for
the preservation of their racial peculiarities, traditions
- These two requirements are interlocked.
- Same treatment and security in law and in fact - not the same as
equality before the law, as provided for in Art. 4 (precludes
discrimination of any kind)
- Equality in law – precludes discrimination of any kind
- Equality in fact - may involve different treatment to establish an
equilibrium between different situations
o Equal right - the right conferred on the minorities cannot
be inferior the corresponding right of the other nationals;
members of the minority must always enjoy the right
stipulated in the Declaration and in addition any more
extensive rights which the State may accord to other
nationals.
Dissent:
• Construction is clear and simple - equal implies that the right so
enjoyed must be equal in measure to the right enjoyed by
somebody else
o They shall have an equal right means that the right to be
enjoyed by the people in question is to be equal in
measure to that enjoyed by some other group.
• Another consideration proposed: the extent to which the monopoly
of education may be of importance to the State
Comment on Further Aspects of the Minority Treaties
• Protection aiming at the cultural survival of minorities continues to
raise the troubling issue of which types of minorities merit such
protection, and whether assurance of equal protection is sufficient
for the purpose.
• The issue of the Minority Schools in Albania is now addressed in
the 1960 UNESCO Convention against Discrimination in Education
o Right of members of national minorities to carry on their
own educational activities...
- Atty. Temprosa – Court still found that there is still a violation of the
treaty. Margin of appreciation cannot be linked. It cannot use such
margin of appreciation to trample upon rights. Even if it discusses
the extent of monopoly, the decision will still be the same. Stick to
the purpose. (substantive equality)
o On Formal Equality – decision will still be the same.
CASTILLO | 7
COMMENT ON TREATIES
pp. 113-118
• The declaration of Albania can be tantamount to a treaty as the
opinions do not distinguish between the two and refer to the
Minorities Treaties to advance their interpretation of the declaration.
• Duties Imposed by Treaty Law - pacta sunt servanda
o Commitments publicly, formally and oluntarily made by a
nationa should be honored
o Art. 26 of the Vienna Convention – every treaty in force is
binding upon the parties to it and must be performed by
them in good faith
• Treaty Formation - express consent of parties, exchange of
instrument
o For multilateral – instruments are deposited with the
national government or international organization that has
been designated as the custodian of the authentic text and
of all other instruments relating to the treaty
• Consent - treaties are consensual; duress - not a defense as many
treaties result from military, political or economic pressure
• Reservations (counteroffer) - many states are attaching
reservations to their ratifications of basic HR treaties
o Unilateral statements made by a state accepting a treaty
whereby it purports to exclude or vary the legal effect of
certain provisions of the treaty in their application to a
state
• Violations of and Changes in Treaties - material breach entitles the
other party to terminate the treaty or suspend its performance
o Termination or suspension does not apply to provisions on
the protection of the human person contained in treaties of
a humanitarian character. (Art 60 of the Vienna
Convention)
o Rebus sic stantibus - fundamental change of
circumstances which was not foreseen; ground for
terminating a treaty if the existence of those circumstances
was an essential basis of the consent and which now
transformed the extent of obligations
• Treaty Interpretation - different approaches for treaties with a long
period, which must rest upon a certain amount of flexibility
o As formal matter – a general rule of interpretation holds
that a treaty should be interpreted in light of its object and
purpose.
o Consider the continuum which lies between strict
interpretation and interpretation according to the
interpreter’s view of the best means of implementing
HUMAN RIGHTS 3D | ATTY. TEMPROSA
o Travaux Preparatoires – or preparatory work (recourse
may be had to supplementary means, such as this.
o Difficulty is that treaties may be drafted in several
languages – unwise to resort to dictionaries in several
languages; corresponding words may shed more light the
intended meaning, but sometimes, they generate greater
ambiguity.
o Reliance upon literal construction (strict interpretation)
NUREMBERG TRIBUNAL
• The trial at Nuremberg in 1945-1946 of major war criminals among
the Axis Powers, dominantly Nazi party leaders and military
officials, gave the nascent human rights movement a powerful
impulse
• Nuremberg Trial applied the human rights provisions in the UN
Charter: prosecution, conviction and punishment
• They applied international law doctrines and concepts to impose
criminal punishment on individuals for their commission of any of
the three types of crimes under the international law
• Universal crime (developed customary international law) - Piracy
on the high seas → every state court sought to apply customary
international law definition of piracy
• In addition to piracy, slave trading and genocide were added to the
list of individual crimes under international law
• Jus Bello - imposed sanctions against combatants who committed
serious violations of the restrictive rules
• London Agreement - International Military Tribunal for the trial of
war criminals
1. Crimes Against Peace - planning, preparation, initiation or
waging of a war of aggression or a war in violation of
international treaties, agreements or assurances or
participation in a common plan or conspiracy for the
accomplishment of any of the foregoing
2. War Crimes - namely, violations of the laws or customs of war.
Such violations shall include, but not be limited to, murder, ill-
treatment or deportation to slave labor or for any other purpose
of civilian population of or in occupied territory, murder or ill
treatment of prisoners of war or persons on the seas, killing of
hostages, plunder of public or private property, wanton
destruction of cities, towns or villages, or devastation not
justified by military necessity
3. Crimes Against Humanity - murder, extermination,
enslavement, deportation, and other inhumane acts against
civilian population before or during the war, or persecutions on
CASTILLO | 8
political, racial, or religious grounds in execution of or in
connection with any crime within the jurisdiction of the Tribunal,
whether or not in violation of the domestic law of the country
where perpetrated.
o Leaders, organizers, instigators, and accomplices –
responsible for all acts performed by any persons in
execution of such plan
• Jus Ad bellum – set of criteria that are to be consulted before
engaging in war to order to determine whether entering into war is
permissible.
• The core of the Charter lay the concept of international crimes for
which there would be INDIVIDUAL RESPONSIBILITY, a sharp
departure from the existing customary law or conventions which
stressed the duty of states
• There is also an attempt to challenge the principle of war as an
instrument of national policy by trying to control aggression
The Laws relating to War Crimes and Crimes Against Humanity
- Hague Convention of 1907
- Geneva Convention of 1929
Law of the Charter
- Jurisdiction is defined in the London Agreement and Charter, for
which there shall be individual responsibility
- Charter is not an arbitrary exercise of power on the part of the
victorious nations
- Defendants:
o Maxim nullum crimen sine lege is not a limitation of
sovereignty but a principle of justice
o Acting under the orders of Hitler, and therefore, cannot be
held responsible for the acts committed by them in
carrying out these orders
- Opinion of the Tribunal: those who wage aggressive war are doing
that which is equally illegal, and of much greater moment that a
breach of one of the rules of the Hague Convention
- Very essence of the Charter is that individuals have international
duties which transcend the national obligations of obedience
imposed by the individual state
o He who violates the laws of war cannot obtain immunity
while acting in pursuance of the authority of the state if the
state in authorizing action moves outside its competence
under international law.
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o If carrying out orders, it shall not free him from
responsibility, but may be considered in mitigation of
punishment.
War Crimes and Crimes Against Humanity
- Perpetrated in all the countries occupied by Germany, and on the
High Seas, and attended by every conceivable circumstance of
cruelty and horror; most barbaric way
- Prisoners of war were ill-treated and tortured and murdered, in
complete disregard of the elementary dictates of humanity
- Cities and villages and towns were destroyed
- “Total War”
Murder and Ill-Treatment of Civilian Population
- Declaratory of the existing laws of war as expressed by the Hague
Convention
- Systematic murder, where millions of people were destroyed
Slave Labor Policy
- Ill-treatment or deportation to slave labor – war crime
- German occupation authorities did succeed in forcing many of the
inhabitants of the occupied territories to work for the German war
effort, and in deport at least 5Million persons to Germany
Persecution of the Jews
- A record of consistent and systematic inhumanity on the greatest
scale; Jews were held up to public ridicule and contempt
- Complete exclusion of Jews from German life
- 4M were killed in the extermination institutions
Law Relating to War Crimes and Crimes Against Humanity
- Tribunal cannot make a general declaration that the acts before
1939 were Crimes against Humanity within the meaning of the
Charter, but from the beginning of the war in 1939, War crimes
were committed on a vast scale
Ruling:
- 19/22 – found guilty of one or more counts of the indictment
- Imposed 12 death sentences
Ex Post Facto Law
- We cannot use this principle to cause injustice.
- London Agreement – was after the WW2. There was no law written
down against these things. Justification: Hague Convention, even if
there was no penalties. Atty Temprosa: Attacker must know that he
CASTILLO | 9
is doing wrong. On another point, when you were ordered these
wrongs, you knew it was wrong! When you’re following orders that
are morally ambiguous – basis is not law but justice. The
commentaries have acknowledged that it is really an ex post facto
law. Deciding on this ensures that the same thing will not happen
again.
- Atty Temprosa: The birth of Human Rights was really the
Nuremberg it was only solidified in the UDHR.
Order:
a. UN Charter
b. UDHR
c. ICCPR
d. ICESCR
THE UNIVERSAL DECLARATION MODEL
JACK DONELLY (2003)
• Body of international human rights as providing largely authoritative
standards for all states in the contemporary world
• Prior to World War II, the term “human rights” was largely absent
from international discourse.
• After the WWII, workers’ rights and minority rights were addressed
by the Intl Labor Organization and the League of Nations.
• The creation of United Nations in 1945 brought about the belief that
all human beings had an extensive set of equal and inalienable
rights
• Article 1 of UN charter (purpose) - to achieve international
cooperation in solving international problems of an economic, social
and cultural or humanitarian character and in promoting and
encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or
religion.
• The ICESCR and ICCPR give the force of treaty law to the UDHR.
The UDHR is the foundational document of international human
rights law. It establishes the basic parameters of the meaning of
human rights in contemporary international relations
The Universal Declaration Model
• Human rights are rooted in a conception of human dignity
• Universal rights are the mechanism for implementing values such
as nondiscrimination and an adequate standard of living
• All the rights in UDHR and Covenants with the exception of the right
of people to self-determination are rights of INDIVIDUALS not
corporate entities
HUMAN RIGHTS 3D | ATTY. TEMPROSA
A. Human Dignity and Human Rights
- These rights derive from the inherent dignity of the human person
- Dignity indicates worth that demands respect (Oxford Defn: the
quality of being worthy, honorable, worthiness, nobleness,
excellence)
- Human rights can be understood to specify certain forms of social
respect - goods, services, opportunities, and protections owed to
each person as a matter of rights implied by dignity
- The practice of human rights provides a powerful mechanism to
realize the dignity of a person.
B. Individual Human Rights
- Excludes right to self-determination
- Enumerations begin with “Every human being, everyone has the
right, no one shall be, everyone is entitled to
- In ICCPR, the persons in the minorities not the minorities
themselves have the enumerated rights
- The very idea of respecting and violating human rights rest on the
idea of the individual as part of a larger social enterprise
- Individual rights are a social practice that creates systems of
obligations between individuals and groups of various sort
- Many individual human rights are characteristically exercised and
can only be enjoyed through collective action
- Political participation, social insurance, and free and compulsory
primary education are incomprehensible in the absence of
community.
C. Interdependence and Indivisibility
- MIDTERMS ALERT: All human rights are universal, indivisible, and
interdependent and interrelated, interconnectedness, non-
discrimination, inalienable
- Interdependence suggests a functional relation between rights:
they interact with one another to produce a whole that is more than
the sum of its parts.
o Ex. right to life and the right to food are together worth far
more than the sum of the two rights enjoyed separately.
- Indivisibility suggests that a life of dignity is not possible without
something close to the full range of internationally recognized
human rights.
o Ex. Having say 80 percent of your rights respected does
not mean that you have pretty much a life of dignity but
only that your dignity is being denied in a relatively narrow
set of ways
CASTILLO | 10
- Universal in a sense that it is applied equally, without
discrimination.
D. State and International Human Rights
- IHR impose obligations on and are exercise against sovereign
territorial states
- UDHR presents itself as a common standard of achievement for all
people and nations and the states that represent them
- The Covenants create obligations only for states
- States have IHR obligations only to their own nationals (and foreign
nationals in their territory or otherwise subject to their jurisdiction or
control)
- Human rights regimes are supervisory mechanisms that monitor
relations between states and citizens
- Foreign states have no internationally recognized human rights
obligation or even a right to protect foreign nationals abroad (XPN:
genocide)
- The state-centric conception of human rights has deep historical
roots and reflects the central role of the sovereign state in modern
politics
- With power and authority concentrated on the government, the
modern state has emerged as both principal threat to the enjoyment
of human rights and the essential institution for their effective
implementation
- Human rights strategy of control over the state has two principal
dimensions:
a) It prohibits a wide range of state interferences in the personal,
social and political lives of citizens
b) It places the people above and in positive control of their
government. Political authority is vested in a free citizenry
endowed with extensive rights of political participation
E. Respecting, Protecting, and Providing Human Rights
- The language of entitlements and claims draws our attention
conceptually toward the duty to respect (to not deprive) and
practically toward the duty to protect against deprivation
- The state is required only to guarantee in IHR that is to create a
system of social provisions. It is not required directly to perform all
the work of protection and provision (the article is basically saying
that even though social provisions are provided such as right to
livelihood, it is not guaranteed by the state because of financial
resources) → this is accomplished through social security systems
that have relied to varying degrees on family, society, state and
self-provisioning
- Social provision is no less important for civil and political rights
HUMAN RIGHTS 3D | ATTY. TEMPROSA
- Other civil and political rights emphasize protection (right not to be
tortured or be subject to cruel inhuman or degrading treatment or
punishment
Atty Temprosa: Most accepted version now is – respect, protect, fulfill.
Obligations of States under the UDHR:
1. Respect – negative obligation; means that States must refrain from
interfering with or curtailing the enjoyment of human rights.
2. Protect – involves 3rd parties; requires States to protect individuals and
groups against human rights abuses; ex. Failed to investigate
3. Fulfill/ Provide – Must take positive action to facilitate the enjoyment of
basic human rights; to provide an enabling environment; ex. Failed to place
police where area has a high crime rate or is chaotic
Questions in class: when are human rights violations different from crimes?
Or if there is a crime, is there necessarily a human rights violation? Different
views on this. Some see HR violation as act or omissions committed by the
State. But there has also been an expansion already.
International Bill of Human Rights –
1. UDHR
2. ICCPR
3. ICESCR
F. Realizing Human Rights and Human Dignity
- Every state no matter how poor can and must respect all
internationally recognized human rights.
- Every state can make substantial progress at realizing human rights
with its existing resources. But every state also always has more to
do to realize human rights and the underlying vision of a life of
dignity
KNOWING THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
MARY ANN GLENDON
Atty Temprosa: Filipino who was involved – Carlos Romulo
- UDHR single most important reference point for cross-cultural
discussion of human freedom and dignity in the world today
- Parent document
- Having achieved the status of holy writ within the human rights
movement; widely admired, but little read
- Loss of or the failure to acquire a sense of the UDHR – facilitated a
host of opportunistic interpretations and uses
CASTILLO | 11
- Argument: Several tensions among basic rights, “incoherent” à
Each of the so-called human rights is the negation of other rights.
- “Hodge podge of ideas”
- Research’s conclusion: led the author to increased admiration for
the project of 1948, and for the men and women who dedicated
themselves to it.
What the Philosophers Knew:
- “Was it really possible for the fledging UN to produce a document
acceptable to delegates from 58 countries?”
o To the Committee’s surprise – the lists of basic rights and
values they received from their far-flung sources were
essentially similar
- Maritain: To enable a great task to be undertaken
- McKeon: To provide a framework within which divergent
philosophical, religious, and even economic social and political
theories might be entertained and developed.
- Problem: Different understandings of the meaning of rights reflect
divergent concepts of man of society
What the Framers Did:
- Due regard to distribution throughout the world so that there would
be no part of the world whose interests would not be considered
- Representatives from many countries had contributed to its content,
plus the broad process of consultation that preceded and
accompanied the drafting stage, helped to ease the way for its
ultimate adoption by the General Assembly.
- Relations between Soviet Union and West – worsening!
- Cassin (very good with legal drafting) to Malik (fluent in many
languages)
o Malik made it to the point each country to the places in the
Declaration where it could either find its own contributions,
or the influence of the culture to which it belonged.
- Debates wore on for 2 months. On December 10, 1948, the
Declaration was approved without a single dissenting vote, WITH
standing ovation.
Knowing the Declaration
- Declaration is now widely spready as Americans read the Bill of
Rights.
- Declaration is not a list or a “bill” but a set of principles that are
related to one another and to certain over-arching ideas.
- It possesses an integrity which has considerable strength when the
document is read as it was meant to be read, namely as a whole.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
Universal Declaration of Human Rights
- Although the UDHR is not legally binding, it has been widely
accepted as a universal agreement on fundamental human rights
norms that duty bearers are expected to respect, protect and fulfill;
- Most HR scholars now would go so far as to argue that the UDHR
is jus cogens or at the very least has become customary
international law.
The UDHR; 4 pillars:
a. The Personal Liberties (Arts. 3-11)
b. The Right of the Individual in relation to others and to various
groups (Arts. 12- 17)
c. The Spiritual, public and political liberties (Arts. 18-21)
d. The Economic, Social and Cultural Rights (Arts 22-27)
Preamble
- “Disregard and contempt for human rights have resulted in
barbarous acts which have outraged the conscience of mankind.”
- Signals from the outset that this document is not just a
“universalization” of the traditional 18th century “rights of man” BUT
part of a “new moment” in the history of human rights
- Human rights – inherent; dignity and rights – recognized, not
conferred; human beings – born free and equal and endowed with
reason and conscience; family – natural, fundamental
Proclamation Clause
- Nature of the document; a common standard of achievement for all
peoples and nations
- Acknowledges the hurdles ahead, stating that “a common
understanding” of the Declaration’s rights and freedoms – the
greatest importance for the full realization of this pledge.
Article 1. All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood.
- General principle is “Dignity.”
- Speaks volumes about the spirit of Cassin – affirmation of faith in
human conscience and rationality
Article 2. Everyone is entitled to all the rights and freedoms set forth in this
Declaration, 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. Furthermore, no distinction shall be made on
the basis of the political, jurisdictional or international status of the country or
CASTILLO | 12
territory to which a person belongs, whether it be independent, trust, non-
self-governing or under any other limitation of sovereignty.
- This is “common article 2” which is the non-discrimination clause
found in most of the HR treaties. Arts. 1 and 2 set forth the
premises, purposes and principles to guide the interpretation of the
rights found in Articles 3 to 27.
- Arts. 1 and 2 set forth the premises, purposes and principles to
guide the interpretation of the rights found in Articles 3 to 27.
Article 3. Everyone has the right to life, liberty and security of person.
Article 4. Freedom from Slavery
Article 5. Freedom from Torture and Degrading Treatment
Article 6. Right to Recognition as a Person before the Law
Article 7. Right to Equality before the Law
Article 8. Right to Remedy by Competent Tribunal
Article 9. Freedom from Arbitrary Arrest and Exile
Article 10. Right to Fair Public Hearing
Article 11. Right to be Considered Innocent until Proven Guilty
Article 12. Right to Privacy - Freedom from Interference with Privacy,
Family, Home and Correspondence
Article 13. Right to Free Movement in and out of the Country
Article 14. Right to Asylum in other Countries from Persecution
Article 15. Right to a Nationality and the Freedom to Change It
Article 16. Right to Marriage and Family
Article 17. Right to Own Property
Article 18. Freedom of Belief and Religion
Article 19. Freedom of Opinion and Information
Article 20. Right of Peaceful Assembly and Association
Article 21. Right to Political Participation – Right to Participate in
Government and in Free Elections
Article 22. Right to Social Security
Article 23. Right to Desirable Work and to Join Trade Unions
Article 24. Right to Rest and Leisure
Article 25. Right to Adequate Living Standard
Article 26. Right to Education
- Education shall be free, at least in the elementary and fundamental
stages. Elementary education shall be compulsory.
Article 27. Right to Participate in the Cultural Life of Community
Article 28. Right to a Social Order that Articulates this Document
Article 29. Community Duties Essential to Free and Full Development
Article 30. Freedom from State or Personal Interference in the above Rights
- Last three sections – pediment of the portico; address certain
conditions that are pre-requisite to the realization of the rights
- Cassin: It shall be made clear that the responsibility for protecting
human rights belonged not only to the nation states, but to persons
and groups below and above the national level.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
- Highest degree of refinement
Remembering the Declaration
- Now-common misreading of the Declaration promotes
misunderstanding and facilitates misuse
- Universal human rights remain an elusive dream; ambiguity
- Freedom and solidarity – sit uneasily with one another
- To encompass a degree of pluralism
- One does not have to be motivated by any love affair with the
United Nations to appreciate the small core of principles to which
people of vastly different backgrounds can appeal
- Atty Temprosa: Challenge to human rights – differences in human
rights. But human rights are the rights that you will hang on to. In a
way, that is universal. UDHR is supposed to be universal. These
are inherent.
Two broad categories of rights:
a. Civil and Political
b. Social, Cultural, and Economic Rights
CIVIL AND POLITICAL RIGHTS
VIDEO: INTRODUCTION TO HUMAN RIGHTS / LESSON 18: UNIVERSAL
AND REGIONAL PROTECTION MECHANISMS
A. Universal Protection Mechanisms
- United Nations Charter – key milestone in the development of
international human rights law
o It made clear that human rights even those of a State’s
own citizens is a legitimate part of international law.
- 3 years later – developed the Universal Declaration of Human
Rights
o Developed 9 core human rights treaties
- Created an array of human rights institutions, which have been
developed to promote and protect human rights.
Focus today: UN Treaty Bodies and UN Human Rights Council
- Quasi-judicial wing of human rights institutions, and the inter-
governmental political wing of UN human rights institutions.
United Nations Treaty Bodies
- Otherwise known as UN Human Rights Committees
CASTILLO | 13
- Each of the nine core treaties has a human rights bodies – for
supervising and monitoring the implementation of the relevant
treaty. (12-18 members)
- Members – individual expert capacity – important: because they
don’t represent their State; they are in an independent capacity,
elected by States-parties; serve 4 year terms and half is elected
every 2 years.
- Functions:
o Reporting process
o Individual complaints process
Reporting Process
- Compulsory process under each of the treaties
- Each state party to a HR treaty must submit a periodic report to the
relevant treaty body – detailing its implementation (success and
problems)
- Often, a counter-report will also be submitted by civil society from
the country.
- Reports and information are then examined in a public dialogue
between state and the body.
- Ends with a “concluding observations” (akin to a report card
detailing good aspects of the State’s implementation, aspects which
are needing more improvement and recommendations
Individual Complaints Process
- Process where an individual can submit a compliant to a treaty
body alleging violations of his or her rights, under the relevant
treaty, that is, violations by a State
- Optional process; state must opt-in the processes so individuals
cant submit
- Two stages:
o Admissibility
o Merits
- Admissibility – treaty body must establish if a complaint is
admissible according to a particular admissibility criteria.
- Merit – to decided w/n a violations has in fact taken place
o If yes, it can make recommendations
Notes:
- Treaty bodies are not courts; they are quasijudicial bodies i.e. not
binding, but authoritative interpretations of the relevant treaties,
which are legally binding documents. Hence, if findings are always
ignored by a State, that is evidence of bad faith attitude
HUMAN RIGHTS 3D | ATTY. TEMPROSA
United Nations Human Rights Council
- Established in 2006; replaced a similar body known as the
Commission on Human Rights (1946-2006)
- Made up of 47 state members; inter-governmental and political
body
- Proceedings are inevitably politicized
- Each member is elected by a secret ballot; serves a 3 year term; no
member must serve more than 2 consecutive three-yr terms
- Possible to be suspended by a vote of the General Assembly
o 2011, Libya was suspended
- Functions:
o Meet 3x a year at the UN human rights HQ in Geneva, for
a total of 10 weeks
o Regular Session Agenda
o Makes decisions and resolutions under that agenda
o Special 1-day sessions on particular human rights issues
or on particular countries
o Controls Universal Periodic Review or UPR
§ UPR – human rights record of every State
member of the UN, that is 193 countries, is
examined by all of the other countries.
§ Takes place on a rolling basis
o Special Procedures – when HR Council decides to appoint
a special expert, known as “Special Rapporteur” or known
as a Working Group – appoint such a body to investigate a
particular human rights issue
§ Independent, expert capacity, and they report to
the HR Council
- Criticism on UNHRC – disproportionate focus on certain States and
certain issue, compared to its lack of focus on other State and other
issues; and less focus on States which deserve scrutiny
o Again this body is a political body; sometimes states would
vote in accordance with their political interests rather than
necessarily in the interest of what is good
- States care what other States think about their human rights record;
they care about what their peers think of them
- Resolutions are not legally binding; but have great political value
and moral value
B. Regional Protection Mechanisms
Europe
- Oldest HR system is in Europe, under the auspices of the Council
of Europe
- Key instrument: European Convention on Human Rights
CASTILLO | 14
- There is a European Court of Human Rights – hears cases about
alleged violations
- There were other treaties too – torture, etc.
America
- Inter American system exists under the auspices of the
Organization of American States
- Key Instruments: American Declaration of the Human Rights and
Duties of Man and American Convention on Human Rights
- Inter-American Court of Human Rights
- Inter-American Commission on Human Rights
Africa
- African human rights system, with an African Court of Human
Rights
- African Commission on Human Rights
- African Charter on Human and People’s Rights
Arab League
- Arab Convention on Human Rights
- No human rights court, though
Regional systems are in some ways stronger than the global system
- Because they have regional courts which can make binding
international legal decisions
Asia – lagging behind, specifically South Asia and SEA, where there isn’t yet
any advanced human rights machinery
VIDEO: INTERNATIONAL HUMAN RIGHTS LAW: PROSPECTS AND
CHALLENGES
Overarching questions:
- Why create regional HRs systems given the many UN treaties and
monitory mechanisms already in existence?
- What are the distinctive feature of the 3 major regional HRs
systems in Europe, America, Africa?
- What prospects for HRs systems in other regions and sub-regions?
Why Create Regional HRs systems?
- To address distinctive regional HRs issues
o E.g. African Charter recognizes the right of “peoples” to
“freely dispose of their wealth and natural resources”
o Does not appear in the major covenants of civil and
political rights or economic and social and cultural rights
nor in European and American
HUMAN RIGHTS 3D | ATTY. TEMPROSA
o Another region-specific issues might be female genital
cutting in Africa which is subject of special protocol
o Prohibition of capital punishment – appeared first in
European before it was incorporate into an option protocol
to the ICCPR
o THEREFORE: Distinctive human rights issues at the
regional level requiring a distinctive regional response
- To commit to higher HRs standards than could be agreed to in UN
treaties open to all States
o More stringent human rights standards than might be
possible at the global level
- To create stronger monitoring and enforcement mechanisms, such
as regional courts and commissions
- Due to greater political will from compliance with HRs, both
domestically (from voters and interest groups) and regionally (peer
pressure from other States)
VIDEO: ECHR – FILM ON THE EUROPEAN COURT OF HUMAN RIGHTS
- European Court –
o 1949 aftermath of WWII
o Council of Europe – adopted the European Convention of
Human Rights
o Supervisory mechanism, 1959, reflecting the desire of
NEVER AGAIN to experience the atrocities committed in
20th century
o Based in Strasbourg, Human Rights Building
o 1 judge for each member state of the Council
§ Elected by the Parliamentary Assembly of the
Council of Europe – fully independent
- Cases: Applications –> sorted –> dispatched
- How Decided:
o Sitting as SINGLE JUDGE à 3-JUDGE COMMITTEE à
CHAMBER (7judges) à GRAND CHAMBER (17 judges)
o Writing; but in important cases: public hearings and via
webcast
- Admissibility issues: Most cases have not been submitted to
national courts
- Issues: Whether there is a breach of convention and if it may award
financial compensation
- Non-europeans are also protected (e.g. refugee)
o E.g. Hirsi Jamaa v Italy; Held: risk of ill treatment
o Yugoslav v Macedonia; Held: Suspect of terrorism was
tortured, committed by CIA agents
- RIGHT TO LIFE – no death penalty in ALL member states
o Lambert v France – vegetative state
CASTILLO | 15
- PROHIBITION OF TORTURE
o Zontul v Greece – man beaten and sexually assaulted
- Problems: Degrading condition of detention; right to a fair hearing
o Some waited 20 years
o Burdov v Russia – waited for many years before awarded
compensation for health problems
o Problem in execution
- Avoiding a document that is out of touch
o E.g. deciding on discrimination; gay pride marches, and
civil partnerships
o Guerra v Italy – environmental issues
o Ahmet v Turkey - Cases on new technology; unimaginable
when convention started
o Tymoshenko v Ukraine – politically sensitive issue;
arbitrary detention; motivated by suspicions only
- Rights setforth in the convention applied to everyone
o Gafgen v Germany – german police officers had
threatened to torture
- Court has found many violations.
- Impact of judgment: states are bound to comply with, respected,
and remedial action is taken
o Committee of Ministers – meets regularly for proper
execution
VIDEO: UNIVERSAL DECLARATION OF HUMAN RIGHTS AND HUMAN
RIGHTS IN ASEAN – DR. DINNA WISNU
- Three pillars: Political, Security Economic Cooperation and Socio-
cultural cooperation
- UDHR – reflection of the commitments of the entire populations of
the world toward the betterment of society at the individual level
and as well as the community level
- “Looks up to this declaration” – as to what are the rights, and who
else should be engaged in dialogues as well as inside of ASEAN
- Engagement at the regional level
- Specificity of needs (human rights is a personal issue)
- To the very detailed level – specific approach, so everyone has a
buy-in; hence, ASEAN
o Developed much later
o Everybody agree to work together, to get rights that are
highlighted by UDHR
o Civic Space
o Stage of challenge – hard to comprehend, especially for
policy makers, can become politicized
o How country to country relates; power competition –
impact as to how human rights is endorsed
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 16

- Commitments & Implementation Recommendatory rather than Creates an ongoing institution,

- Prospect of Human Rights is quite promising à how to respond, binding; “shy of binding – but called “treaty body” (Human
what do you do somehow relevant to norm Rights Committee)
o Discourse competing with HR – “if you have enough formation and influential with
economic growth” respect state behavior (soft law)
o UDHR – inspiration; how bad things could turn to be if we Both are terse about their derivations or foundations in moral and political
forget these principles (what happened in the past) thought
- Such statements as are made that have the character of
MIDTERMS ALERT foundational assumptions, justifications, or explanation
9 – Universal HR Instruments – has a treaty body for each - Unlike tax treaty (expresses compromise and convergence of
According to OHCHR, there are 9 core international human rights interests)
instruments and several optional protocols. The core instruments are: - Speak to matters deep, lasting, purportedly universal
a. Convention on the Elimination of All Forms of Racial Discrimination Many rights declared in ICCPR closely resemble the provisions of UDHR,
(ICERD, 21 December 1965) such as criminal trials
b. International Covenant on Civil and Political Rights (ICCPR, 16 Individual rights characterize these instruments
December 1966) - Group or collective rights are rare; hinted in Self-determination of
c. International Covenant on Economic, Social, and Cultural Rights ICCPR and 27 on survival of cultures
(ICESCR, 16 December 1966) Both refer to family as the natural and fundamental group unit of society
d. Convention on the Elimination of All Forms of Discrimination In both, the idea of rights dominates with respect to individuals. Duties
Against Women (CEDAW, 18 December 1979) characteristically attach to the state.
e. Convention against Torture and Other Cruel, Inhuman or Degrading Art. 17 - right to own property and No counter provision in ICCPR
Treatment or Punishment (CAT, 10 December 1984) protection against arbitrary
f. Convention on the Rights of the Child (CRC, 20 November 1989) deprivation
g. International Convention on the Protection of the Rights of All Goes little beyond the bare Remedial structure reaches much
Migrant Workers and Members of Their Families (ICMW, 18 declaration of rights to provide that further; Art. 2 – “parties agree to
December 1990) everyone has the “right to an ensure to all persons within the
h. International Convention for the Protection of All Persons from effective remedy by the competent territory the rights recognized” and
Enforced Disappearance (CPED, 20 December 2006) national tribunals’ for violation of the parties undertake to have an
i. Convention on the Rights of Persons with Disabilities (CRPD, 13 fundamental rights “effective remedy”
December 2006)
No counterpart in commentary Two types of provisions in the
ICCPR limits states’ obligations:
EXCERPT FROM ALSTON GOODMAN ON CIVIL & POLITICAL RIGHTS
First, Public emergency permits
derogation, in the sense of
Introduction
temporary adjustment to or
One basic similarity – each instrument aspires to universality.
suspension of the operations of
Universal Declaration of Human ICCPR some of the rights declared by the
Rights Covenant
Will have solemn effects as the Content of important provisions of a
formal act of deliberative body of treaty may long remain in dispute Second, limitation clauses – a given
global importance among the states parties; right is not absolute but may be
differences over interpretation adapted to take account of a state’s
Subject matter may be of the Binds the states parties in need to protect public safety, order,
greatest significance accordance with its terms; pacta health or morals.
sunt servanda
HUMAN RIGHTS 3D | ATTY. TEMPROSA
Ex: Art 21-22, permitting restrictions
on a right “which are necessary in a
democratic society”
Bans “cruel, inhuman or ICCPR aimed at abolition of the
degrading” punishment but that death penalty
does not refer to capital
punishment
Atty. Temprosa: Pro-person? Not really. In fact the State has 2 defenses –
derogation and limitation clauses.
Categories of rights:
a. Protection of the individual’s physical integrity
§ provisions: on torture, arbitrary arrest, arbitrary
deprivation of life)
b. Procedural fairness when government deprives an
individual of liberty
§ Provisions: on arrest, trial procedure and
conditions of imprisonment
c. Equal protection norms
§ Atty. Temprosa: “Suspect Grounds”
d. Freedoms of belief, speech, and association
§ Provisions: on advocacy, religion, press freedom,
right to hold on assembly and form associations;
and
§ Atty. Temprosa: Usually, lumped together
“cognate rights”; assembly – it’s your expression
e. Right to political participation
- Categories can be seen on a spectrum:
o First, broad formal-verbal consensus – whatever the
degree of ongoing violation of the relevant rights by many
states
o Second, rights whose purposes, basic meanings, and
even validity are formally disputed – ex: some religious
belief or practices justify some gender discrimination
Issue to be discussed: the issue of equality or hierarchy, and implicitly the
notion of interdependence and indivisibility of all rights
Atty. Temprosa: Is it correct to say that rights are born by humans, and
duties are born by the States? Respect obligations lang ba ang ICCPR for
the State? – Important is: fulfillment; it’s not just on desisting but also on
providing. Prevalent thinking now is all rights are immediate.
CASTILLO | 17
Antonio Cassese: A Plea for a Global Community Grounded in the Core
of Human Rights
Fundamental and Others values: Flexible and
intransgressible contingent
Must be common to all nations, Application of which may need to
states, and individuals and may not take into account national
be derogated from conditions
Those enshrined in that core of Deprived of nature of jus cogens,
rules that constitute the still important, but can restrained in
international jus cogens their incidence and scope by
individual states (as long as not
absolutely arbitrary)
“There should be a hierarchy in the body of rules of the international
community and that some principles or norms”
- Came a clear understanding that jus cogens rules included norms
concerning human rights:
o Banning genocide, slavery, racial discrimination, and
forcible denial
- International bodies have suggested that other international rights
also enjoy the status of peremptory norms
o Ban on torture, prohibition of slave trade, right to life, right
of access to justice, habeas corpus, ban on refoulement,
prohibition of collective penalties, fair trial
- Normative process – unfolds through judicial decisions,
pronouncements by collective bodies, and declarations of states
and other international legal subjects
Peremptory norms – those which have universal scope and bearing; must
be obeyed by all nations, states, and individuals of the planets.
Existence of two different values – can make allowance for the coexistence
of a core of indispensable and absolute values
COMPARE: Theodor Meron, On a Hierarchy of International Human Rights
- Hierarchical – a warning sign that the international community will
not accept any breach of those rights.
- Establishment of erga omnes principle (towards everyone)
- Resort to hierarchical terms has not been matched by careful
consideration of their legal significance. No accepted system by
which higher rights can be identified and their content determined
- Rights not accorded quality labels – relegated to inferior, second-
class status
HUMAN RIGHTS 3D | ATTY. TEMPROSA
- Some commentators are resorting increasingly to superior rights in
the hope that no state will dare to ignore them.
o Through this, hierarchical terms contribute to the
unnecessary mystification of human rights, rather than
clarity
Atty. Temprosa: What rights do you put premium on? In reality, it really is
hard. Is there really such a thing as no hierarchy? Examination of priorities.
Is there a ranking of rights ba?
Comment on Germany v Italy before the ICJ (2012)
- ICJ issued a judgment on the relationship between jus cogens and
state immunity
- FACTS: Started from civil suits against state of Germany
o Involved the commission of war crimes by the German
military against Italian nationals during Germany’s
occupation of parts of Italy in the final years of WW2
- Italian Court of Cassation; HELD: Germany could be sued for
compensation in Italian courts on the ground that immunity does not
apply when the alleged conduct constitutes an international crime
such as deportation to slave labor and massacres of civilians.
- ICJ; HELD: Decision of Court of Cassation was in violation of Italy’s
obligation to respect Germany’s immunity under customary
international law. Sovereign immunity is firmly established in
customary international law and grounded upon 'one of the
fundamental principles of the international legal order' - the
sovereign equality of states. That principle had to be 'viewed
together with the principle that each State possesses sovereignty
over its own territory and that there flows from that sovereignty the
jurisdiction of the State over events and persons within that
territory:
o XPN: May exist for torts committed in the territory of the
forum state (i.e. acts committed by German agents inside
Italy)
§ XPN TO XPN: Does not apply to acts committed
by foreign military forces in a state’s territory
during an armed conflict.
- Another issue: W/N the fact the alleged violations constituted jus
cogens offences would supersede the immunity that applies to
foreign military forces in a state’s territory
- ICJ; HELD: The rules of State immunity are procedural in character
and are confined to determining whether or not the courts of one
State may exercise jurisdiction in respect of another State. They do
not bear upon the question whether or not the conduct in respect of
which the proceedings are brought was lawful or unlawful .... For
CASTILLO | 18
the same reason, recognizing the immunity of a foreign State in
accordance with customary international law does not amount to
recognizing as lawful a situation created by the breach of a jus
cogens rule, or rendering aid and assistance in maintaining that
situation, and so cannot contravene the principle in Article 41 of the
International Law Commission's Articles on State Responsibility."
- To the extent that it is argued that no rule which is not of the status
of jus cogens may be applied if to do so would hinder the
enforcement of a jus cogens rule, even in the absence of a direct
conflict, the Court sees no basis for such a proposition .... [T]he
rules which determine the scope and extent of jurisdiction and when
that jurisdiction may be exercised do not derogate from those
substantive rules which possess jus cogens status, nor is there
anything inherent in the concept of jus cogens which would require
their modification or would displace their application.
Atty. Temprosa: Do you agree? Why did the ICJ rule this way?
ICCPR
Article 1. Right to Self Determination
Article 2. General Obligation of States Parties to ICCPR
Article 3. Equality of Rights between men and women
Article 4. Derogation
- required by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations under
international law and do not involve discrimination solely on the
ground of race, colour, sex, language, religion or social origin
- Paragraph 3 – notification requirement
- MIDTERMS ALERT: Paragraph 2 – No derogation from articles 6,
7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under
this provision.
Article 5. no restriction upon or derogation from any of the fundamental
human rights recognized or existing in any State Party to the present
Covenant pursuant to law, conventions, regulations or custom on the pretext
that the present Covenant does not recognize such rights or that it
recognizes them to a lesser extent
Articles 6. Right to life
- Death penalty – only for most serious crimes
Article 7. Torture or to cruel, inhumane or degrading or punishment
Article 8. Slavery and involuntary servitude
Article 9. Liberty and security of person
Article 10. Persons Deprived of Liberty
Article 11. Non-payment of contractual obligation
Article 12. Liberty of movement
HUMAN RIGHTS 3D | ATTY. TEMPROSA
- rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public
order (order public), public health or morals or the rights and
freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
Article 13. An alien lawfully in the territory of a State Party to the present
Covenant may be expelled
- except where compelling reasons of national security otherwise
require, be allowed to submit the reasons against his expulsion and
to have his case reviewed by, and be represented for the purpose
before, the competent authority or a person or persons especially
designated by the competent authority.
Article 14. Equal before courts and tribunals
Article 15. No one shall be held guilty of any criminal offence on account of
any act or omission which did not constitute a criminal offence, under
national or international law, at the time when it was committed
Article 16. Recognition everywhere
Article 17. Privacy
Article 18. Thought Conscience Religion
Article 19. Right to hold opinions
Article 20. Prohibition of Hate Speech (2)
Article 21. Peaceful Assembly
Article 22. Freedom of Association
Article 23. Family; right of men and women of marriageable age to marry
Article 24. Child rights
Article 25. Right and opportunity to: take part in conduct of public affairs,
vote, access to public service
Article 26. Non-discrimination
Article 27. Minority Rights
GENERAL COMMENT NO. 36
Note: This replaced General Comment No. 6
Article 6: Right to Life
Article 6
1. Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance with
the law in force at the time of the commission of the crime and not contrary
to the provisions of the present Covenant and to the Convention on the
Prevention and Punishment of the Crime of Genocide. This penalty can only
be carried out pursuant to a final judgement rendered by a competent court.
CASTILLO | 19
3. When deprivation of life constitutes the crime of genocide, it is understood
that nothing in this article shall authorize any State Party to the present
Covenant to derogate in any way from any obligation assumed under the
provisions of the Convention on the Prevention and Punishment of the Crime
of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. Amnesty, pardon or commutation of the
sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons
below eighteen years of age and shall not be carried out on pregnant
women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition
of capital punishment by any State Party to the present Covenant.
General Remarks
- Article 6 of ICCPR – Right to life of all human beings; supreme right
from which no derogation is permitted, even in situations of armed
conflict and other public emergencies
o Effective protection of this right – prerequisite for the
enjoyment of all other human rights and the content of
which can be informed by other human rights.
- Concerns the entitlement of individuals to be free from acts and
omissions that are intended or may be expected to cause their
unnatural or premature death, as well as to enjoy a life with dignity
- Safeguards to ensure that in States parties that have not yet
abolished death penalty à DP not applied XPN: most serious
crimes
o See: Par. 2,4, 5, and 6 of Art. 6
o Art 6(1) – limits the ability of States parties to apply death
penalty
- Deprivation of Life – involves intentional or otherwise foreseeable
and preventable life-terminating harm or injury cause by an act or
omission
- States parties – MUST RESPECT right to life.
o Duty to refrain in engaging in conduct resulting in arbitrary
deprivation of life
o extends to reasonably foreseeable threats and life-
threatening situations that can result in loss of life
o Although States parties may adopt measures designed to
regulate voluntary termination of pregnancy, those
measures must not result in violation of the right to life
of a pregnant woman or girl, or her other rights under the
Covenant
o States parties must provide safe, legal and effective
access to abortion where the life and health of the
HUMAN RIGHTS 3D | ATTY. TEMPROSA
pregnant woman or girl is at risk, or where carrying a
pregnancy to term would cause the pregnant woman or
girl substantial pain or suffering, most notably where the
pregnancy is the result of rape or incest or where the
pregnancy is not viable.
§ Example: Not take measures such as
criminalizing pregnancy of unmarried women or
applying criminal sanctions to women and girls
who undergo abortion or medical service
providers who assist them in doing so à leads to
resorting unsafe abortion
§ Should remove existing barriers caused as a
result of the exercise of conscientious
objection
§ Access to reproductive health education and wide
range of affordable contraceptives
§ Prenatal and post-abortion health care for women
and girls in all circumstances and on a
confidential basis
o States parties should take adequate measures to prevent
suicides, especially among individuals in vulnerable
situations.
Prohibition against arbitrary deprivation of life
- Right to life is not absolute à but deprivation of life must not be
arbitrary
o Exceptional measures should be established by law.
- Right to life be protected by law + no one be arbitrarily deprived of
life à two requirements overlap
- Deprivation of life is, as a rule, arbitrary if it is inconsistent with
international law or domestic law. A deprivation of life may,
nevertheless, be authorized by domestic law and still be arbitrary.
o Arbitrariness – must be interpreted more broadly to
include elements of inappropriateness, injustice, lack of
predictability and due process of law, as well as elements
of reasonableness, necessity and proportionality.
o The intentional taking of life by any means is permissible
only if it is strictly necessary in order to protect life from an
imminent threat.
- States parties are expected to take all necessary measures to
prevent arbitrary deprivation of life by their enforcement officials.
o Put appropriate legislation controlling the use of lethal
force by law, procedures, mandatory reporting, review and
investigation
CASTILLO | 20
- The use of such weapons must be restricted to law enforcement
officials who have undergone appropriate training, and must be
strictly regulated in accordance with applicable international
standards
- State party must rigorously limit the powers afforded to private
actors and ensure that strict and effective measures of monitoring
and control, as well as adequate training, are in place in order to
guarantee, inter alia, that the powers granted are not misused and
do not lead to arbitrary deprivation of life
- The deprivation of life of individuals through acts or omissions that
violate provisions of the Covenant other than article 6 is, as a rule,
arbitrary in nature
Duty to Protect Life
- Article 6(1) – “shall be protected by law”
o States parties must establish a legal framework to ensure
the full enjoyment of the right to life by all individuals as
may be necessary to give effect to the right to life
- The duty to protect by law the right to life requires that any
substantive ground for deprivation of life must be prescribed by
law and must be defined with sufficient precision to avoid overly
broad or arbitrary interpretation or application.
- States parties must enact a protective legal framework that includes
effective criminal prohibitions on all manifestations of violence or
incitement to violence that are likely to result in deprivation of life
- States parties should also disband irregular armed groups, such as
private armies and vigilante groups, that are responsible for
deprivations of life and reduce the proliferation of potentially lethal
weapons to unauthorized individuals
- Must take appropriate measures to protect individuals against
deprivation of life by other States, international organizations and
foreign corporations operating within their territory
- The duty to protect the right to life requires States parties to take
special measures of protection towards persons in vulnerable
situations whose lives have been placed at particular risk because
of specific threats or pre-existing patterns of violence, including
human rights defenders
- Persons with disabilities, including psychosocial or intellectual
disabilities, are also entitled to specific measures of protection so
as to ensure their effective enjoyment of the right to life on an equal
basis with others.
- States parties also have a heightened duty of care to take any
necessary measures to protect the lives of individuals deprived of
their liberty by the State, since by arresting, detaining, imprisoning
or otherwise depriving individuals of their liberty, States parties
HUMAN RIGHTS 3D | ATTY. TEMPROSA
assume the responsibility to care for their lives and bodily integrity,
and they may not rely on lack of financial resources or other
logistical problems to reduce this responsibility
- The duty to protect life also implies that States parties should take
appropriate measures to address the general conditions in society
that may give rise to direct threats to life or prevent individuals from
enjoying their right to life with dignity
o Includes: traffic and industrial accidents, degradation of
environment, IPs’ land, territories, and resources, diseases
§ To ensure access without delay by individuals to
essential goods and services
- Develop, when necessary, contingency plans and disaster
management plans to increase preparedness and address natural
and manmade disasters
- An important element of the protection afforded to the right to
life by the Covenant is the obligation on the States parties, where
they know or should have known of potentially unlawful deprivations
of life, to investigate and, where appropriate, prosecute the
perpetrators of such incidents
o Investigations should explore, inter alia, the legal
responsibility of superior officials with regard to violations
of the right to life committed by their subordinates
o Must be independent, impartial, prompt, thorough,
effective, credible, and transparent
o States parties need to take, among other things,
appropriate measures to establish the truth relating to the
events leading to the deprivation of life, including the
reasons and legal basis for targeting certain individuals
and the procedures employed by State forces before,
during and after the time at which the deprivation occurred
o also disclose relevant details about the investigation to the
victim’s next of kin, allow the next of kin to present new
evidence, afford the next of kin legal standing in the
investigation, and make public information about the
investigative steps taken and the findings, conclusions and
recommendations emanating from the investigation,
subject to absolutely necessary redactions justified by a
compelling need to protect the public interest or the
privacy and other legal rights
o Loss of life in custody, in unnatural circumstances –
presumption of arbitrary deprivation of life
- The duty to respect and ensure the right to life requires States
parties to refrain from deporting, extraditing or otherwise
transferring individuals to countries in which there are substantial
CASTILLO | 21
grounds for believing that a real risk exists that their right to life
under article 6 of the Covenant would be violated
- The obligation not to extradite, deport or otherwise transfer,
pursuant to article 6 of the Covenant, may be broader than the
scope of the principle of non-refoulement under international
refugee law, since it may also require the protection of aliens not
entitled to refugee status
Imposition of Death Penalty
- States parties to the Covenant that have abolished the death
penalty, through amending their domestic laws, becoming parties to
the Second Optional Protocol to the Covenant, aiming at the
abolition of the death penalty, or adopting another international
instrument obligating them to abolish the death penalty, are barred
from reintroducing it
o May not transform into a capital offence any offence, upon
ratification, did not entrail the death penalty
o SPs that have abolished the death penalty cannot deport,
extradite or otherwise transfer persons to a country in
which they are facing criminal charges that carry death
penalty
§ XPN: credible and effective assurances against
the imposition of the death penalty
- Most serious crimes – appertain only to crimes of extreme gravity
involving intentional killing
o a limited degree of involvement or of complicity in the
commission of even the most serious crimes, such as
providing the physical means for the commission of
murder, cannot justify the imposition of the death penalty
- In all cases involving the application of the death penalty, the
personal circumstances of the offender and the particular
circumstances of the offence, including its specific attenuating
elements, must be considered by the sentencing court
- States parties must refrain from imposing the death penalty on
individuals who face special barriers in defending themselves on an
equal basis with others, such as persons whose serious
psychosocial or intellectual disabilities impede their effective
defence, and on persons who have limited moral culpability
Relationship of Art. 6 with other articles of the Covenant and other legal
regimes
Article 6 also reinforces the obligations of States parties under the Covenant
and the Optional Protocol to protect individuals against reprisals for
promoting and striving to protect and realize human rights, including through
cooperation or communication with the Committee.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
FIRST OPTIONAL PROTOCOL TO THE ICCPR
Entry into force: March 23, 1976
Article 1 A State Party to the Covenant that becomes a Party to the present
Protocol recognizes the competence of the Committee to receive and
consider communications from individuals subject to its jurisdiction who
claim to be victims of a violation by that State Party of any of the rights set
forth in the Covenant. No communication shall be received by the Committee
if it concerns a State Party to the Covenant which is not a Party to the
present Protocol.
Article 2 Subject to the provisions of article 1, individuals who claim that
any of their rights enumerated in the Covenant have been violated and who
have exhausted all available domestic remedies may submit a written
communication to the Committee for consideration.
Article 3 The Committee shall consider inadmissible any communication
under the present Protocol which is anonymous, or which it considers to be
an abuse of the right of submission of such communications or to be
incompatible with the provisions of the Covenant.
Article 4 1. Subject to the provisions of article 3, the Committee shall bring
any communications submitted to it under the present Protocol to the
attention of the State Party to the present Protocol alleged to be violating any
provision of the Covenant.
2. Within six months, the receiving State shall submit to the Committee
written explanations or statements clarifying the matter and the remedy, if
any, that may have been taken by that State.
Article 5 1. The Committee shall consider communications received under
the present Protocol in the light of all written information made available to it
by the individual and by the State Party concerned.
2. The Committee shall not consider any communication from an individual
unless it has ascertained that:
(a) The same matter is not being examined under another procedure of
international investigation or settlement; (b) The individual has exhausted all
available domestic remedies. This shall not be the rule where the application
of the remedies is unreasonably prolonged.
3. The Committee shall hold closed meetings when examining
communications under the present Protocol.
4. The Committee shall forward its views to the State Party concerned and to
the individual.
CASTILLO | 22
Article 6 The Committee shall include in its annual report under article 45 of
the Covenant a summary of its activities under the present Protocol.
Article 7 Pending the achievement of the objectives of resolution 1514(XV)
adopted by the General Assembly of the United Nations on 14 December
1960 concerning the Declaration on the Granting of Independence to
Colonial Countries and Peoples, the provisions of the present Protocol shall
in no way limit the right of petition granted to these peoples by the Charter of
the United Nations and other international conventions and instruments
under the United Nations and its specialized agencies.
Article 8
1. The present Protocol is open for signature by any State which has signed
the Covenant.
2. The present Protocol is subject to ratification by any State which has
ratified or acceded to the Covenant. Instruments of ratification shall be
deposited with the Secretary-General of the United Nations.
3. The present Protocol shall be open to accession by any State which has
ratified or acceded to the Covenant.
. Accession shall be effected by the deposit of an instrument of accession
with the Secretary-General of the United Nations.
5. The Secretary-General of the United Nations shall inform all States which
have signed the present Protocol or acceded to it of the deposit of each
instrument of ratification or accession.
Article 9
1. Subject to the entry into force of the Covenant, the present Protocol shall
enter into force three months after the date of the deposit with the Secretary-
General of the United Nations of the tenth instrument of ratification or
instrument of accession.
2. For each State ratifying the present Protocol or acceding to it after the
deposit of the tenth instrument of ratification or instrument of accession, the
present Protocol shall enter into force three months after the date of the
deposit of its own instrument of ratification or instrument of accession.
Article 10 The provisions of the present Protocol shall extend to all parts of
federal States without any limitations or exceptions.
Article 11
1. Any State Party to the present Protocol may propose an amendment and
file it with the Secretary-General of the United Nations. The Secretary-
General shall thereupon communicate any proposed amendments to the
States Parties to the present Protocol with a request that they notify him
whether they favour a conference of States Parties for the purpose of
considering and voting upon the proposal. In the event that at least one third
HUMAN RIGHTS 3D | ATTY. TEMPROSA
of the States Parties favours such a conference, the Secretary-General shall
convene the conference under the auspices of the United Nations. Any
amendment adopted by a majority of the States Parties present and voting at
the conference shall be submitted to the General Assembly of the United
Nations for approval.
2. Amendments shall come into force when they have been approved by the
General Assembly of the United Nations and accepted by a two-thirds
majority of the States Parties to the present Protocol in accordance with their
respective constitutional processes.
3. When amendments come into force, they shall be binding on those States
Parties which have accepted them, other States Parties still being bound by
the provisions of the present Protocol and any earlier amendment which they
have accepted.
Article 12
1. Any State Party may denounce the present Protocol at any time by written
notification addressed to the Secretary-General of the United Nations.
Denunciation shall take effect three months after the date of receipt of the
notification by the Secretary-General.
2. Denunciation shall be without prejudice to the continued application of the
provisions of the present Protocol to any communication submitted under
article 2 before the effective date of denunciation.
Article 13 Irrespective of the notifications made under article 8, paragraph
5, of the present Protocol, the Secretary-General of the United Nations shall
inform all States referred to in article 48, paragraph I, of the Covenant of the
following particulars:
(a) Signatures, ratifications and accessions under article 8;
(b) The date of the entry into force of the present Protocol under article 9 and
the date of the entry into force of any amendments under article 11;
(c) Denunciations under article 12.
Article 14
1. The present Protocol, of which the Chinese, English, French, Russian and
Spanish texts are equally authentic, shall be deposited in the archives of the
United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies
of the present Protocol to all States referred to in article 48 of the Covenant.
SECOND OPTIONAL PROTOCOL TO THE ICCPR
Adopted: December 15, 1989
The States Parties to the present Protocol,
Believing that abolition of the death penalty contributes to enhancement of
human dignity and progressive development of human rights,
CASTILLO | 23
Recalling article 3 of the Universal Declaration of Human Rights, adopted on
10 December 1948, and article 6 of the International Covenant on Civil and
Political Rights, adopted on 16 December 1966,
Noting that article 6 of the International Covenant on Civil and Political
Rights refers to abolition of the death penalty in terms that strongly suggest
that abolition is desirable,
Convinced that all measures of abolition of the death penalty should be
considered as progress in the enjoyment of the right to life,
Desirous to undertake hereby an international commitment to abolish the
death penalty,
Have agreed as follows:
Article 1
1. No one within the jurisdiction of a State Party to the present Protocol shall
be executed.
2. Each State Party shall take all necessary measures to abolish the death
penalty within its jurisdiction.
Article 2
1. No reservation is admissible to the present Protocol, except for a
reservation made at the time of ratification or accession that provides for the
application of the death penalty in time of war pursuant to a conviction for a
most serious crime of a military nature committed during wartime.
2. The State Party making such a reservation shall at the time of ratification
or accession communicate to the Secretary-General of the United Nations
the relevant provisions of its national legislation applicable during wartime.
3. The State Party having made such a reservation shall notify the
Secretary-General of the United Nations of any beginning or ending of a
state of war applicable to its territory.
Article 3 The States Parties to the present Protocol shall include in the
reports they submit to the Human Rights Committee, in accordance with
article 40 of the Covenant, information on the measures that they have
adopted to give effect to the present Protocol.
Article 4 With respect to the States Parties to the Covenant that have made
a declaration under article 41, the competence of the Human Rights
Committee to receive and consider communications when a State Party
claims that another State Party is not fulfilling its obligations shall extend to
the provisions of the present Protocol, unless the State Party concerned has
made a statement to the contrary at the moment of ratification or accession.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
Article 5 With respect to the States Parties to the first Optional Protocol to
the International Covenant on Civil and Political Rights adopted on 16
December 1966, the competence of the Human Rights Committee to receive
and consider communications from individuals subject to its jurisdiction shall
extend to the provisions of the present Protocol, unless the State Party
concerned has made a statement to the contrary at the moment of
ratification or accession.
Article 6
1. The provisions of the present Protocol shall apply as additional provisions
to the Covenant.
2. Without prejudice to the possibility of a reservation under article 2 of the
present Protocol, the right guaranteed in article 1, paragraph 1, of the
present Protocol shall not be subject to any derogation under article 4 of the
Covenant.
Article 7
1. The present Protocol is open for signature by any State that has signed
the Covenant.
2. The present Protocol is subject to ratification by any State that has ratified
the Covenant or acceded to it. Instruments of ratification shall be deposited
with the Secretary-General of the United Nations.
3. The present Protocol shall be open to accession by any State that has
ratified the Covenant or acceded to it.
4. Accession shall be effected by the deposit of an instrument of accession
with the Secretary-General of the United Nations.
5. The Secretary-General of the United Nations shall inform all States that
have signed the present Protocol or acceded to it of the deposit of each
instrument of ratification or accession.
Article 8
1. The present Protocol shall enter into force three months after the date of
the deposit with the Secretary-General of the United Nations of the tenth
instrument of ratification or accession.
2. For each State ratifying the present Protocol or acceding to it after the
deposit of the tenth instrument of ratification or accession, the present
Protocol shall enter into force three months after the date of the deposit of its
own instrument of ratification or accession.
Article 9 The provisions of the present Protocol shall extend to all parts of
federal States without any limitations or exceptions.
CASTILLO | 24
Article 10 The Secretary-General of the United Nations shall inform all
States referred to in article 48, paragraph 1, of the Covenant of the following
particulars:
(a) Reservations, communications and notifications under article 2 of the
present Protocol;
(b) Statements made under articles 4 or 5 of the present Protocol;
(c) Signatures, ratifications and accessions under article 7 of the present
Protocol:
(d) The date of the entry into force of the present Protocol under article 8
thereof.
Article 11
1. The present Protocol, of which the Arabic, Chinese, English, French,
Russian and Spanish texts are equally authentic, shall be deposited in the
archives of the United Nations.
2. The Secretary-General of the United Nations shall transmit certified copies
of the present Protocol to all States referred to in article 48 of the Covenant.
LARRANAGA V PHILIPPINES
- Francisco Juan Larranaga – Filipino and Spanish national, born on
December 27 1977
o Sentenced to death
o Imprisoned and New Bilibid Prison
o Claims to be a victim of violations of Article 6, 7, 9, and 14
of the Covenant by the Philippines
- Option Protocol entered into force for the State party on Nov 22,
1989.
Facts as submitted by Larranaga
- May 5, 1999 – Found guilty of kidnapping and serious illegal
detention of Jacqueline Chiong by the Special Heinous Crimes
Court in Cebu
- Feb 3, 2004 - Supreme Court also found him guilty – sentenced to
death and reclusion perpetua
- July 16, 1997 - Larranaga along with seven other mean kidnapped
Marijoy and Jacqueline Chiong in Cebu. On the same day, the two
women were allegedly raped
o Marijoy was pushed down into a ravine
o Jacqueline was beaten, body remained missing
- According to him, he travelled from Cebu to QC on June 8 to
pursue a Diploma at the Center for culinary arts in QC. On July 16,
he was taking his exams and went to a restaurant in the evening
and stayed with friends until the next morning On July 17, he took
another exam before taking a plane back to Cebu at 5PM
- September 15, 1997 – police tried to arrest him without a warrant
HUMAN RIGHTS 3D | ATTY. TEMPROSA
- September 17 – his counsel made a request to the prosecutor that
he be given a Prel. Investigation and that he be granted 20 days to
file a defense affidavit. But was denied as he was entitled only to an
inquest.
- September 19 – his counsel appealed to the CA to prevent the filing
of a criminal information. But too late, criminal charges had already
been filed with the RTC on Sept 17
- September 25 – another petition was filed in the CA against his
arrest but was dismissed Upon appeal to SC, and despite its
pendency, he was brought before a judge on Oct 14. He did not
enter a plea and the judge entered a plea of not guilty to two counts
of kidnapping with serious illegal detention. SC then temporarily
restrained this judge from proceeding. SC held that he is entitled to
a proper preliminary investigation.
- August 12, 1998 – Trial began.
o First witness: Davidson Valiente Rusia (promised immunity
if he tells the truth). However, on the second day, the
cross-examination was cut short à he admitted that he
lied about his previous convictions and claimed that he felt
dizzy. Alleged also that he had been bribed.
- From August 31 to September 3, 1998 – there was a series of
change in counsel.
o His counsel was put to jail for contempt of court and trial
judge ordered a lawyer from PAO to represent despite his
insistence on an adjournment to seek his own as he had
the means to do so
- From September 3 – 18, 1998 – 25 prosecution witnesses testified.
- From October 1 – 12, 1998 – author’s counsel cross-examined
again the main prosecution witness. He was discharged as a
witness and was granted immunity from prosecution.
- November 23, 1998 – 14 witnesses testified for Larranaga and
confirmed that he was in QC
o Series of dates in January 1999, judge refused to hear
evidence as it was “irrelevant immaterial”
o Various dates in February 1999, Larranaga was not
allowed to testify either
- May 5, 1999 – Special Henious Crimes Court found Larranaga
guilty of the kidnapping and serious illegal detention
- May 10, 2000 – appealed to the SC. Issues were:
o Violations of rights of due process (including the right to
choose counsel, right to effective counsel, refusal to hear
testimony, refusal to allow the author to call defense
witness, denial of an impartial trial
o Improper handling of the main prosecution witness’s
evidence
CASTILLO | 25
o Insufficient prosecution evidence to convict
o Inappropriate standard of proof required for presenting
alibi evidence
- February 3, 2004 – SC found Larranaga guilty of the complex crime
of kidnapping and serious illegal detention with homicide and rape.
He was sentenced to death by lethal injection
- March 2, 2004 – MR was filed
- July 21, 2005 – Rejected MR
Complaint of Larranaga
Alleged the following:
a. Violation of Art. 6 of the Covenant because the State party
introduced death penalty after abolishing it. (1987 Consti through
Art 3(19)(1)); he recalled that SC held that new laws authorizing
capital punishment were unconstitutional
b. Violation of Art. 5 on the ground that SC sentenced him under Art.
267 of RPC and did not take into account possible mitigating
circumstances
c. Violation of Art 14 par. 2 and that the evaluation of facts and
evidence were manifestly arbitrary and amounted to denial of
justice
i. Insufficient evidence of homicide or rape
ii. Prosecution was based on the testimony of 1 witness
iii. Both the trial court and SC were incorrect in shifting the
burden of proof on to him to prove that it was “physically
impossible” for him to have been at the scene of the crime
d. Violation of Art. 14 par. 1 and 2 because both the trial court and SC
were subject to outside pressure from powerful social groups, esp
Fil-Chi community
i. Aunt of victims – secretary of Pres. Estrada
ii. Subject to many negative media reports
e. Violation of Art. 14 because the convictions and sentences imposed
were premised on serious procedural irregularities
i. Prevented from testifying at his own trial
ii. No equality to call and examine witnesses. Trial judge
refused to hear several defence witnesses and effectively
withheld evidence
iii. Right to cross-examine prosecution witnesses was unfairly
restricted. Trial judge was obstructive when author’s
counsel sought to cross-examine the main prosecution
witness
iv. His counsel did not have sufficient time to prepare the
defense and that he could not choose an effective
counsel.
v. He was not tried by an independent and impartial tribunal
HUMAN RIGHTS 3D | ATTY. TEMPROSA
f. Violations of Art. 6(2) and Art. 14 because the SC failed to correct
any of the irregularities of the proceedings
i. Harboured preconceptions about the trial
ii. 2 judges of CA had evaluated the preliminary charged
against him in 1997
iii. Another judge whose wife was the great-aunt of the
victims also sat on the SC
iv. Violated principle of ex officio reformation in peius and his
right to appeal
v. Right to a public hearing was violated and his right to be
present during the heard. SC did not hear oral testimony
vi. Violated right to appeal to a higher tribunal according to
law
g. Violations of articles 9(3), 14(3)(c), and 14(5) because there were
undue delays in the proceedings. The delay between the charge
and the SC decision was 6 years and 5 months
h. Violation of art 6(1) because the imposition of the death penalty on
him at the end of a process in which his fair trial guarantees were
violated – arbitrary deprivation of life
i. Violation of art 7 – subject to a prolonged period of detention on a
death row.
i. Trauma of other violations; fear and uncertainty generated
by a death sentence
j. Violation of article 9 – he has not been deprived of his liberty on
such grounds and in accordance with such procedures as are
established by law. Guilt was not proven beyond reasonable doubt.
State party’s submission on admissibility and merits
a. Death penalty was never abolished by the 1987 Constitution –
“unless, for compelling reasons involving heinous crimes, the
Congress hereafter provides for it”
i. Never meant to suppress the right of the State to impose
capital punishment
ii. Refers to a decision of the SC which confirmed that there
is nothing which expressly abolishes the death penalty –
purely a matter of domestic discretion – subject to the
limitation of “most serious crimes”
iii. Not a party to the Second Optional Protocol to the
Covenant
iv. Accordingly, art 6 should be interpreted to mean that for
countries which have abolished the death penalty, it
cannot be reinstated, and for countries which continue to
impose, not compulsory but highly encouraged
b. Revised Penal Code provides that a person may be convicted for
the criminal act of another where, between them, there has been
CASTILLO | 26
conspiracy or unit of purpose and intention in the commission of the
crime' Therefore, the conspirators are held liable for acts committed
by each of them and the degree of actual participation of each is
immaterial'
i. Here, SC found that conspiracy has been established,
thus liable
ii. Noted also that Larranaga was already 20 when he
committed the offences
iii. Relative youth – not a mitigating circumstance
c. Death penalty was imposed by virtue of Art 267 of RPC; even then,
imposition of such took into consideration the circumstances of both
the offender and the offence.
i. Recalls that one of the co-defendant who is a minor was
not sentenced to death
ii. “mandatory” is not synonymous to arbitrary
d. The SC judgment demonstrates that there was clear evidence of
homicide and rape; criminal appeal opens up the entire case for
review and that to have oral arguments before the SC is not a
matter of right
e. Evidence from an accomplice – State party recalls that trial judge
chose to give credence as his testimony was corroborated by
disinterested witnesses
f. It is the duty of the defence to prove the existence of an alibi, or
justifying or exemption circumstances
g. As to outside pressure – notes that decision of SC was rendered by
the Court as a whole, not by specific justices
i. Also, Erap was ousted from power in January 2001 and
author was sentenced to death 3 yrs later
h. State party argues that Larranaga was not prevented from testifying
(prosecution and defence agreed to dispense with his testimony)
i. Domestic courts, subject to the agreement of a witness
even if that person was not placed in the witness stand,
and that this is especially true if testimony would be merely
corroborative (as in this case)
i. Responsibility of the trial judge to ensure that there is an orderly
and expeditious presentation of witnesses and that time was not
wasted
j. Refers to the judgment of the SC of Feb 2 2004 which the Court
denied that the defendants had not been given sufficient
opportunity to cross-examine – right and duty of the trial court to
control the cross-examination of witnesses, for conserving time and
protecting the witnesses.
k. Trial court can appoint a counsel whom it considers competent to
enable the trial to proceed
l. No basis for claim of partiality and bias on the part of the trial judge
HUMAN RIGHTS 3D | ATTY. TEMPROSA
m. Larranaga was given ample opportunity to present his arguments
and observations before the SC. SC did not consider it necessary
to hear the parties orally
n. Initial delay was due to the fact that Larranaga sought to annul the
charges filed against him. He alone presented 14 witnesses and
employed strategic machinations to delay proceedings.
Larranaga’s comments
a. Takes note of the recent decision to commute all death sentences
to life imprisonment (April 16 2006), but he remains on death row
and has received no documents from the President’s Office
b. Death penalty was abolished and subsequently reintroduced in PH
c. Imposition constitutes violation of Art 6
d. No direct evidence of conspiracy, elements were not found.
Reiterates irregularities in his trial
e. Principle of ex officio reformation in peius was violated
f. Delays were caused by the lack of judicial discipline, including long
and unnecessary annual leave by the presiding judge
Consideration of the Merits
Re: Conviction of capital punishment –
Committee recalls its jurisprudence that the automatic and mandatory
imposition of the death penalty constitutes an arbitrary deprivation of life, in
Violation of article 6, paragraph 1, of the Covenant, in circumstances where
the death penalty is imposed without any possibility of taking into account
the defendant’s personal circumstances or the circumstances of the
particular offence. It follows that his rights under article 6, paragraph 3, of the
Covenant were violated. At the same time, the Committee notes that the
State party has adopted Republic Act No. 9346 prohibiting the imposition of
death penalty in the Philippines.
Re: Violation of the presumption of innocence –
The Committee is cognizant that some States require that a defence of alibi
must be raised by the defendant, and that a certain standard of proof must
be met before the defence is cognizable' However, here, the trial judge did
not show sufficient latitude in permitting the defendant to prove this defence,
and in particular, excluded several witnesses offered in the alibi defence. A
criminal court may convict a person only when there is no reasonable doubt
of his or her guilt, and it is for the prosecution to dispel any such doubt. In
the present case, the trial judge put a number of leading questions to the
prosecution which tend to justify the conclusion that the author was not
presumed innocent until proven guilty.
Concerning the public statements made by senior officials portraying the
author as guilty, all of which were given very extensive media coverage, the
CASTILLO | 27
Committee refers to its General Comment No. 13 on article 14, where it
stated that: ‘it is, therefore, a duty for all public authorities to refrain from pre-
judging the outcome of a trial’. In the present case, the Committee considers
that the authorities failed to exercise the restraint that article 34, paragraph
5, requires of them, especially taking into account the repeated intimations to
the trial judge that the author should be sentenced to death while the trial
proceeded'
Re: Right to Counsel –
The Committee considers that in a capital case, when counsel for the
defendant requests an adjournment because he was not given enough time
to acquaint himself with the case, the court must ensure that the defendant is
given an opportunity to prepare his defence… Committee reiterates that it is
axiomatic that legal representation must be made available in capital cases.
Re: Right to cross-examine –
The Committee reaffirms that it is for the national courts to evaluate facts
and evidence in a particular case. However, bearing in mind the seriousness
of the charges involved in the present case, the Committee considers that
the trial court’s denial to hear the remaining defence witnesses without any
further justification other than that the evidence was “irrelevant and
immaterial” and the time constraints, while, at the same time, the number of
witnesses for the prosecution was not similarly restricted, does not meet the
requirements of article 34' In the above circumstances, the Committee
concludes that there was a Violation of article 34, paragraph 3(3), of the
Covenant.
Re: Supreme Court –
The Supreme Court, which did not find it necessary to hear the parties orally,
sentenced the author to death. The Committee considers that, as the
Supreme Court in the present case, according to national law, had to
examine the case as to the facts and the law, and in particular had to made
a full assessment of the question of the author’s guilt or innocence, it should
have used its power to conduct hearings, as provided under national law, to
ensure that the proceedings complied with the requirements of a fair trial as
laid down in article 14, paragraph 1.
Re: delays and appeals –
In any case, the fact that the author appealed cannot be held against him'
Article 14, paragraph 3(c), requires that all accused shall be entitled to be
tried without undue delay, and the requirement applies equally to the right of
review of conviction and sentence guaranteed by article 14, paragraph 5.
Bearing in mind that, by becoming a party to the Optional Protocol, the State
party has recognized the competence of the Committee to determine
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 28

whether there has been a Violation of the Covenant or not and that, pursuant For ICESCR, “progressively” à BUT immediate (see cases, BUT
to article 5 of the Covenant, that State party has undertaken to ensure all QUALIFIED) cause you have to TAKE STEPS now to progress. à minimum
individuals within its territory or subject to its jurisdiction the rights recognized core obligations
in the Covenant and to provide an effective and enforceable remedy in case
a Violation has been established. PART II

Atty. Temprosa: Article 2

Take note: 1. Each State Party to the present Covenant undertakes to take steps,
1. Derogation individually and through international assistance and co-operation, especially
2. Margin of Appreciation economic and technical, to the maximum of its available resources, with a
view to achieving progressively the full realization of the rights recognized in
Recall: the present Covenant by all appropriate means, including particularly the
International Bill of Rights: adoption of legislative measures.
1. UDHR 2. The States Parties to the present Covenant undertake to guarantee that
2. ICCPR the rights enunciated in the present Covenant will be exercised without
3. ICESCR discrimination of any kind as to race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
ECONOMIC, SOCIAL, AND CULTURAL RIGHTS 3. Developing countries, with due regard to human rights and their national
economy, may determine to what extent they would guarantee the economic
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND rights recognized in the present Covenant to non-nationals.
CULTURAL RIGHTS
Article 1 Article 3
1. All peoples have the right of self-determination. By virtue of that right they The States Parties to the present Covenant undertake to ensure the equal
freely determine their political status and freely pursue their economic, social right of men and women to the enjoyment of all economic, social and cultural
and cultural development. rights set forth in the present Covenant.
2. All peoples may, for their own ends, freely dispose of their natural wealth
and resources without prejudice to any obligations arising out of international Article 4
economic co-operation, based upon the principle of mutual benefit, and The States Parties to the present Covenant recognize that, in the enjoyment
international law. In no case may a people be deprived of its own means of of those rights provided by the State in conformity with the present
subsistence. Covenant, the State may subject such rights only to such limitations as are
3. The States Parties to the present Covenant, including those having determined by law only in so far as this may be compatible with the nature of
responsibility for the administration of Non-Self-Governing and Trust these rights and solely for the purpose of promoting the general welfare in a
Territories, shall promote the realization of the right of self-determination, democratic society.
and shall respect that right, in conformity with the provisions of the Charter of
the United Nations. Article 5
1. Nothing in the present Covenant may be interpreted as implying for any
Atty. Temprosa: Note: there’s no right to property! State, group or person any right to engage in any activity or to perform any
act aimed at the destruction of any of the rights or freedoms recognized
How to comply? herein, or at their limitation to a greater extent than is provided for in the
- Respect present Covenant.
- Protect 2. No restriction upon or derogation from any of the fundamental human
- Fulfill rights recognized or existing in any country in virtue of law, conventions,
But concretely and specifically? regulations or custom shall be admitted on the pretext that the present
In ICCPR, immediate. Covenant does not recognize such rights or that it recognizes them to a
lesser extent.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
PART III
Article 6
1. The States Parties to the present Covenant recognize the right to work,
which includes the right of everyone to the opportunity to gain his living by
work which he freely chooses or accepts, and will take appropriate steps to
safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve
the full realization of this right shall include technical and vocational guidance
and training programmes, policies and techniques to achieve steady
economic, social and cultural development and full and productive
employment under conditions safeguarding fundamental political and
economic freedoms to the individual.
Article 7
The States Parties to the present Covenant recognize the right of everyone
to the enjoyment of just and favourable conditions of work which ensure, in
particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal
value without distinction of any kind, in particular women
being guaranteed conditions of work not inferior to those
enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in
accordance with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his
employment to an appropriate higher level, subject to no
considerations other than those of seniority and competence;
(d ) Rest, leisure and reasonable limitation of working hours and
periodic holidays with pay, as well as remuneration for public
holidays
Article 8
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade
union of his choice, subject only to the rules of the organization
concerned, for the promotion and protection of his economic and
social interests. No restrictions may be placed on the exercise of
this right other than those prescribed by law and which are
necessary in a democratic society in the interests of national
security or public order or for the protection of the rights and
freedoms of others;
CASTILLO | 29
(b) The right of trade unions to establish national federations or
confederations and the right of the latter to form or join international
trade-union organizations;
(c) The right of trade unions to function freely subject to no
limitations other than those prescribed by law and which are
necessary in a democratic society in the interests of national
security or public order or for the protection of the rights and
freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with
the laws of the particular country.
2. This article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces or of the police or
of the administration of the State.
3. Nothing in this article shall authorize States Parties to the International
Labour Organisation Convention of 1948 concerning Freedom of Association
and Protection of the Right to Organize to take legislative measures which
would prejudice, or apply the law in such a manner as would prejudice, the
guarantees provided for in that Convention.
Article 9
The States Parties to the present Covenant recognize the right of everyone
to social security, including social insurance.
Article 10
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the
family, which is the natural and fundamental group unit of society,
particularly for its establishment and while it is responsible for the care and
education of dependent children. Marriage must be entered into with the free
consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable
period before and after childbirth. During such period working mothers
should be accorded paid leave or leave with adequate social security
benefits.
3. Special measures of protection and assistance should be taken on behalf
of all children and young persons without any discrimination for reasons of
parentage or other conditions. Children and young persons should be
protected from economic and social exploitation. Their employment in work
harmful to their morals or health or dangerous to life or likely to hamper their
normal development should be punishable by law. States should also set
age limits below which the paid employment of child labour should be
prohibited and punishable by law.
Article 11
HUMAN RIGHTS 3D | ATTY. TEMPROSA
1. The States Parties to the present Covenant recognize the right of
everyone to an adequate standard of living for himself and his family,
including adequate food, clothing and housing, and to the continuous
improvement of living conditions. The States Parties will take appropriate
steps to ensure the realization of this right, recognizing to this effect the
essential importance of international co-operation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental
right of everyone to be free from hunger, shall take, individually and through
international co-operation, the measures, including specific programmes,
which are needed:
(a) To improve methods of production, conservation and distribution
of food by making full use of technical and scientific knowledge, by
disseminating knowledge of the principles of nutrition and by
developing or reforming agrarian systems in such a way as to
achieve the most efficient development and utilization of natural
resources;
(b) Taking into account the problems of both food-importing and
food-exporting countries, to ensure an equitable distribution of
world food supplies in relation to need.
Atty. Temprosa: Again, it’s taking measures only
- Can you sue? If there are NO measures – then yes. But if there are
measures, it depends.
- If you have already taken steps à you have to progressively
realize. You cannot REGRESS.
Article 12
1. The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of the highest attainable standard of physical and
mental health.
2. The 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:
(a) The provision for the reduction of the stillbirth-rate and of infant
mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial
hygiene;
(c) The prevention, treatment and control of epidemic, endemic,
occupational and other diseases;
(d) The creation of conditions which would assure to all medical
service and medical attention in the event of sickness.
Article 13
1. The States Parties to the present Covenant recognize the right of
everyone to education. They agree that education shall be directed to the full
CASTILLO | 30
development of the human personality and the sense of its dignity, and shall
strengthen the respect for human rights and fundamental freedoms. They
further agree that education shall enable all persons to participate effectively
in a free society, promote understanding, tolerance and friendship among all
nations and all racial, ethnic or religious groups, and further the activities of
the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognize that, with a view to
achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical
and vocational secondary education, shall be made generally
available and accessible to all by every appropriate means, and in
particular by the progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the
basis of capacity, by every appropriate means, and in particular by
the progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as far
as possible for those persons who have not received or completed
the whole period of their primary education;
(e) The development of a system of schools at all levels shall be
actively pursued, an adequate fellowship system shall be
established, and the material conditions of teaching staff shall be
continuously improved.
3. The States Parties to the present Covenant undertake to have respect for
the liberty of parents and, when applicable, legal guardians to choose for
their children schools, other than those established by the public authorities,
which conform to such minimum educational standards as may be laid down
or approved by the State and to ensure the religious and moral education of
their children in conformity with their own convictions.
4. No part of this article shall be construed so as to interfere with the liberty
of individuals and bodies to establish and direct educational institutions,
subject always to the observance of the principles set forth in paragraph I of
this article and to the requirement that the education given in such
institutions shall conform to such minimum standards as may be laid down
by the State.
Article 14
Each State Party to the present Covenant which, at the time of becoming a
Party, has not been able to secure in its metropolitan territory or other
territories under its jurisdiction compulsory primary education, free of charge,
undertakes, within two years, to work out and adopt a detailed plan of action
for the progressive implementation, within a reasonable number of years, to
be fixed in the plan, of the principle of compulsory education free of charge
for all.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
Article 15
1. The States Parties to the present Covenant recognize the right of
everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which
he is the author.
2. The 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 the
conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the
freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be
derived from the encouragement and development of international contacts
and co-operation in the scientific and cultural fields.
Note: Not included - PART IV - V (PROCEDURAL) Articles 16-31
GENERAL COMMENT NO.3
Nature of States parties obligations
Article 2 1. Each State Party to the present Covenant undertakes to take
steps, individually and through international assistance and cooperation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.
- Obligations includes obligations of conduct and obligations of
result (MIDTERMS ALERT! e.g. of Art. 3. obligation of result –
non-discrimination, Art. 7 ensuring of renumeration, Art. 8 to form
trade unions and to join such)
- Imposes various obligations which are of immediate effect.
- Two are of particular importance in understanding the precise
nature of States parties
3. “undertaking to guarantee” that relevant rights
“will be exercised without discrimination…”
4. Art. 2(1) “to take steps”, which in itself, is not
qualified or limited by other considerations.
i. English – to take steps
ii. French – to act
iii. Spanish – to adopt measures
The means which should be used in order to satisfy the obligation to take
steps are stated in article 2 (1) to be "all appropriate means, including
particularly the adoption of legislative measures".
CASTILLO | 31
- Recognizes that in many instances, legislation is highly desirable
and in some cases may even be indispensable
- Example: in combatting discrimination – it is difficult if there is no
sound legislative foundation; in health, protection of children and
mothers, legislation may be an indispensable element
- the adoption of legislative measures, as specifically foreseen by the
Covenant, is by no means exhaustive of the obligations of States
parties; but such phrase must be given its full and natural meaning
- the "appropriateness" of the means chosen will not always be
self-evident – it is therefore desirable that States parties' reports
should indicate not only the measures that have been taken but
also the basis on which they are considered to be the most
"appropriate" under the circumstances.
ADDITION TO LEGISLATIVE MEASURES à Provision of judicial
remedies with respect to rights which may be considered justiciable
- Indeed, those States parties which are also parties to the
International Covenant on Civil and Political Rights are already
obligated (by virtue of arts. 2 (paras. 1 and 3), 3 and 26) of that
Covenant to ensure that any person whose rights or freedoms
(including the right to equality and non-discrimination) recognized in
that Covenant are violated, "shall have an effective remedy" (art. 2
(3) (a)).
- In addition, there are a number of other provisions in the
International Covenant on Economic, Social and Cultural Rights,
including articles 3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15
(3) which would seem to be capable of immediate application by
judicial and other organs in many national legal systems.
- Committee would like to receive info on: Extent to which these
rights are considered “justiciable”
o Justiciable – able to be invoked before the courts
OTHER MEASURES: “appropriate” à include, but not limited to,
administrative, financial, educational, and social measures
Note: in such undertaking – it NEITHER requires NOR precludes any
particular form of government or economic system
- the Covenant is neutral and its principles cannot accurately be
described as being predicated exclusively upon the need for, or the
desirability of a socialist or a capitalist system, or a mixed, centrally
planned, or laisser-faire economy, or upon any other particular
approach.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
The principal obligation of result reflected in article 2 (1) is to take steps
"with a view to achieving progressively the full realization of the rights
recognized" in the Covenant.
- “progressive realization” - a recognition of the fact that full
realization of all economic, social and cultural rights will generally
not be able to be achieved in a short period of time.
- Two views:
o necessary flexibility device, reflecting the realities of the
real world and the difficulties involved for any country in
ensuring full realization of economic, social and cultural
rights.
o phrase must be read in the light of the overall objective,
indeed the raison d'être, of the Covenant which is to
establish clear obligations for States parties in respect of
the full realization of the rights in question. It thus imposes
an obligation to move as expeditiously and effectively as
possible towards that goal.
A minimum core obligation to ensure the satisfaction of, at the very
least, minimum essential levels of each of the rights is incumbent upon
every State party
- Thus, for example, a State party in which any significant number of
individuals is deprived of essential foodstuffs, of essential primary
health care, of basic shelter and housing, or of the most basic forms
of education is, prima facie, failing to discharge its obligations under
the Covenant
- it must be noted that any assessment as to whether a State has
discharged its minimum core obligation must also take account of
resource constraints applying within the country concerned
- The Committee wishes to emphasize, however, that even where
the available resources are demonstrably inadequate, the obligation
remains for a State party to strive to ensure the widest possible
enjoyment of the relevant rights under the prevailing circumstances.
- If the Covenant were to be read in such a way as not to establish
such a minimum core obligation, it would be largely deprived of its
raison d'être.
A final element of article 2 (1), to which attention must be drawn, is that the
undertaking given by all States parties is "to take steps, individually and
through international assistance and cooperation, especially economic
and technical ...".
- The Committee notes that the phrase "to the maximum of its
available resources" was intended by the drafters of the Covenant
to refer to both the resources existing within a State and those
CASTILLO | 32
available from the international community through international
cooperation and assistance.
- It is particularly incumbent upon those States which are in a
position to assist others in this regard.
Atty. Temprosa: Take note of 2 obligations:
a. Progressive realization
b. Minimum core obligation
LIMBURG PRINCIPLES ON THE IMPLEMENTATION OF THE ICESCR
Nature and Scope of States Parties’ Obligations
- Subject: economic, social, and cultural rights
- ICESCR – entered into force in 1976, serve to elaborate the UDHR
- Should be interpreted in good faith, taking into account the object
and purpose, the ordinary meaning, the Preparatory work and the
relevant practice
- The achievement of economic, social and cultural rights may be
realized in a variety of political settings. There is no single road
to their full realization. Successes and failures have been registered
in both market and non-market economies, in both centralized and
decentralized political structures.
- Must at all times act in good faith
- Although the full realization of the rights recognized in the Covenant
is to be attained progressively, the application of some rights can
be made justiciable immediately while other rights can become
justiciable over time.
- Concerted national effort to invoke full participation of all sectors
of society is indispensable to achieving progress in realizing
economic, social, and cultural rights
- Committee – to analyze the causes and factors impeding the
realization
- Trends in economic relations – taken into account in assessing the
efforts
Interpretative Principles specifically relating to Part 2 of the Covenant
Article 2 (1): "to take steps ... by all appropriate means, including particularly
the adoption of legislation"
- States Parties shall use all appropriate means, including
legislative, administrative, judicial, economic, social and educational
measures, consistent with the nature of the rights in order to fulfil
their obligations under the Covenant. Legislative measures alone
are not sufficient to fulfil the obligations of the Covenant… but
where there is violation by an existing legislation, legislative action
is taken
HUMAN RIGHTS 3D | ATTY. TEMPROSA
- Where appropriate – judicial remedies
"to achieve progressively the full realization of the rights"
- Under no circumstances shall this be interpreted as implying for
States the right to defer indefinitely efforts to ensure full realization.
On the contrary all States parties have the obligation to begin
immediately to take steps to fulfil their obligations under the
Covenant.
- The obligation of progressive achievement exists independently of
the increase in resources; it requires effective use of resources
available.
"to the maximum of its available resources"
- For minimum subsistence rights for all
- "Its available resources" refers to both the resources within a
State and those available from the international community through
international co-operation and assistance.
"individually and through international assistance and co-operation,
especially economic and technical"
- Directed towards the establishment of a social and international
order in which rights and freedoms set forth can be fully realized
- Irrespective of differences, States shall cooperate with one another
- Based on the sovereign equality of States and be aimed at the
realization of the rights
Article 2(2): Non-discrimination
- Grounds à not exhaustive
- Upon becoming a party to the Covenant States shall eliminate de
jure discrimination by abolishing without delay any discriminatory
laws, regulations and practices (including acts of omission as well
as commission) affecting the enjoyment of economic, social and
cultural rights.
- De facto discrimination occurring as a result of the unequal
enjoyment of economic, social and cultural rights, on account of a
lack of resources or otherwise, should be brought to an end as
speedily as possible.
- Special measures taken for the sole purpose of securing adequate
advancement of certain groups or individuals requiring such
protection as may be necessary in order to ensure to such groups
or individuals equal enjoyment of economic, social and cultural
rights shall not be deemed discrimination, provided, however, that
such measures do not, as a consequence, lead to the maintenance
of separate rights for different groups and that such measures shall
CASTILLO | 33
not be continued after their intended objectives have been
achieved.
Article 2(3): Non-nationals in developing countries
- GR: Covenant applies equally to nationals and non-nationals
- Purpose: end the domination of certain economic groups of non-
nationals during colonial times
- This narrow interpretation of article 2 (3) refers in particular to the
notion of economic rights and to the notion of developing countries.
o The latter notion refers to those countries which have
gained independence and which fall within the appropriate
United Nations classifications of developing countries.
Article 3: Equal rights for men and women
- See: CEDAW
Article 4: Limitations
intended to be protective of the rights of individuals rather than permissive of
the imposition of limitations by the State.
“determined by law”
- not be arbitrary or unreasonable or discriminatory
- shall be clear and accessible to everyone.
- Adequate safeguards and effective remedies shall be provided by
law against illegal or abusive imposition on application of limitations
on economic, social and cultural rights.
“promoting the general welfare”
- To mean furthering the well-being of the people as a whole
“in a democratic society”
- Interpreted as imposing a further restriction on the application of
limitations
- The burden is upon a State imposing limitations to demonstrate that
the limitations do not impair the democratic functioning of the
society.
“compatible with the nature of these rights”
- Requires that a limitation shall not be interpreted or applied so as to
jeopardize the essence of the right concerned
Article 5
- Article 5 (1) underlines the fact that there is no general, implied or
residual right for a State to impose limitations beyond those which
are specifically provided for in the law.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
- intended to ensure that nothing in the Covenant shall be interpreted
as impairing the inherent right of all peoples to enjoy and utilize fully
and freely their natural wealth and resources.
- purpose of article 5 (2) is to ensure that no provision in the
Covenant shall be interpreted to prejudice the provisions of
domestic law or any bilateral or multilateral treaties, conventions or
agreements which are already in force, or may come into force,
under which more favourable treatment would be accorded to the
persons protected.
Interpretative Principles specifically relating to Part III of the Covenant
“prescribed by law”
- same comments as “determined by law”
- not be arbitrary or unreasonable or discriminatory
- shall be clear and accessible to everyone.
- Adequate safeguards and effective remedies shall be provided by
law against illegal or abusive imposition on application of limitations
on economic, social and cultural rights.
“necessary in a democratic society”
- Implies that the limitation:
o Responds to a pressing public or social need
o Pursues a legitimate aim; and
o Proportional to that aim
“national security”
- may be invoked to justify measures limiting certain rights only when
they are taken to protect the existence of the nation or its territorial
integrity or political independence against force or threat of force
- cannot be used as a Pretext for imposing vague or arbitrary
limitations and may be invoked only when there exist adequate
safeguards and effective remedies against abuse.
“public order”
- defined as the sum of rules which ensures the functioning of society
or set of fundamental principles on which a society is founded
- context of the purpose of the particular economic, social and
cultural rights which are limited on this ground
“rights and freedoms of others”
- extends beyond the rights and freedoms recognized in the
Covenant
Violations of Economic, Social, and Cultural Rights
- failure to comply with an obligation
CASTILLO | 34
- affords to a State party a margin of discretion in selecting the
means for carrying out its objects, and that factors beyond its
reasonable control may adversely affect its capacity to implement
particular rights.
When in violation:
- it fails to take a step which it is required to take by the Covenant;
- it fails to remove promptly obstacles which it is under a duty to
remove to permit the immediate fulfilment of a right;
- it fails to implement without delay a right which it is required by the
Covenant to provide immediately;
- it wilfully fails to meet a generally accepted international minimum
standard of achievement, which is within its powers to meet;
- it applies a limitation to a right recognized in the Covenant other
than in accordance with the Covenant;
- it deliberately retards or halts the progressive realization of a right,
unless it is acting within a limitation permitted by the Covenant or it
does so due to a lack of available resources or force majeure;
- it fails to submit reports as required under the Covenant.
Consideration of States Parties’ Reports and international Cooperation
Under Part IV of the Covenant
Preparation and submission of reports by States parties
- depends largely upon the duality and timeliness of reports by States
parties
- urged to make their reports as meaningful as possible
- develop adequate internal procedures for consultations with the
competent government departments and agencies, compilation of
relevant data, training of staff, acquisition of background
documentation, and consultation with relevant non-governmental
and international institutions
- view their reporting obligations as an opportunity for broad public
discussion on goals and policies designed to realize economic,
social and cultural rights.
- specify, as appropriate, the judicial remedies, administrative
procedures and other measures they have adopted for enforcing
those rights and the practice under those remedies and procedures.
Role of Committee on Economic, Social, and Cultural Rights
- to consider States parties reports and to make suggestions and
recommendations of a general nature, including suggestions and
recommendations as to fuller compliance with the Covenant by
States parties.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
Relations between the Committee and Specialized Agencies, and other
International Organs
- It is essential for the proper supervision of the implementation of the
Covenant under Part IV that a dialogue be developed between the
specialized agencies and the Committee with respect to matters of
common interest
Consultations should be initiated between the Committee and
international financial institutions and development agencies to
exchange information and share ideas on the distribution of
available resources in relation to the realization of the rights
recognized in the Covenant
should develop, in co-operation with intergovernmental
organizations and non-governmental organizations as well as
research institutes an agreed system for recording, storing and
making accessible case law and other interpretative material
relating to international instruments on economic, social and
cultural rights.
OLGA TELLIS v BOMBAY MUNICIPAL CORPORATION
Facts:
- Writ of petitions portray the plight of lakhs of persons who live on
pavements and in slums in the city of Bombay – constitute nearly
half of the population of the society, exist in the midst of filth and
squalor à they came to Court to ask for a judgment that they
cannot be evicted from their squalid shelters without being offered
alternative accommodation
o Basis: Art. 21 of the Constitution – no person shall be
deprived of his life except according to procedure
established by law
o Contention is NOT that they have a right to live on the
pavements; contention is that they have a RIGHT TO
LIVE, which cannot be exercised without the means of
livelihood
Issue: whether the right to life includes the right to livelihood
Held: YES, it is wide and far-reaching; must be deemed to be an integral
component of the right to life
- Deprive a person of his right to livelihood and you shall have
deprived him of his life
- Art 39a of the Constitution – State shall direct its policy towards
securing that the citizens, men and women equally, have the right
to an adequate means of livelihood
- Court used commonsense and did not require any more petitioners
to adduce evidence that they will be rendered jobless
CASTILLO | 35
- Should be given an alternate sites at Malavani or at such other
convenient place as the Government considers reasonable but not
farther away in terms of distance
Two Conclusions from the discussion:
a. Right to life which is conferred by Art. 21 includes the right to
livelihood
b. It is established that if the petitioners are evicted from their
dwellings, they will be deprived of their livelihood
- Such deprivation has to be according to procedure established by
law
Notes:
- Expansion of interpretation of Art. 21 in relation to a wide range of
social sectors, including health
- Rakesh Chandra Narayan v State of Bihar –
o abusive conditions in a mental hospital; Chief Judicial
Magistrate visited and reported that only 9/16 medical
officers had been appointed, no light or ventilation, acute
water shortage, 300 beds for 1580 patients, meals were
inadequate, medicines were very short in supply.
o Court ordered that measures be taken; after 18 months,
responses of the authorities ‘have not given us the
satisfaction of the touch of appropriate sincerity in action’
and that they have been ‘half-hearted’
o Appointed a Committee of Management – to look after all
aspects of the institution
- Consumer Education & Research Center v Union of India –
o Petition complaining of the hazards faced by workers in
asbestos-related industries
o Cited ILO standards and detailed the medical
consequences of the exposure
o Court took the opportunity to expand its definition of the
right to life and to make a detailed remedial order:
§ Right to health to a worker is an integral facet of
meaningful right to life, not only a meaningful
existence, but also robust health and vigour
without which worker would lead life of misery
§ Thus: right to health, medical aid to protect the
health and vigour to a worker while in service or
post retirement is a fundamental right under Art.
21
- Paschim Banga Khet Mazdoor Samity v State of West Bengal –
o Petitioner fell off a train and suffered serious head injuries;
he was taken by ambulance to a succession of hospitals
and turned away – because the hospital did not have the
HUMAN RIGHTS 3D | ATTY. TEMPROSA
necessary facilities or because no free beds were
available. Ended up at an expensive private hospital
o Court found a violation of Art. 21
§ Constitution envisages the establishment of a
welfare state at the federal level as well as at the
state level… primary duty of the Government is to
secure the welfare of the people which includes
providing adequate medical facilities by running
hospitals and health centres
§ Art. 21 imposes an obligation on the State to
safeguard the right to life of every person
§ Preservation of human life is thus of paramount
importance.
§ Government hospitals are duty bound to extend
medical assistance for preserving human life…
failure on the part of the Government to provide
timely medical treatment violates Article 21
o Court ordered also remedial measures to ensure that in
future proper medical facilities are available for dealing
with emergency cases
§ Ordered additional emergency facilities,
upgrading local hospitals, improved ambulance
facilities, and preparation to ensure that medical
personnel are geared to deal with larger number
of patients
o As to financial implications, court said:
§ It cannot be ignored that it is the constitutional
obligation of the State to provide adequate
medical services to the people.
§ It cannot avoid constitutional obligation in that
regard on account of financial constraints.
SOOBRAMONEY V. MINISTER OF HEALTH (KWAZULU- NATAL)
Facts:
- Appellant – 41 y/o unemployed man, a diabetic – suffers from
ischaemic heart disease and cerebro-vascular disease à caused
him to have a stroke during 1996
- In 1996, kidneys also failed; condition is irreversible and is in the
final stages of a chronic renal failure
- Life could be prolonged by means of regular renal dialysis; he
sought such treatment from the renal unit of the Addington state
hospital in Durban
- Hospital however can provide dialysis treatment to a limited number
of patients; only 20 dialysis machines available, and some are in
poor condition
CASTILLO | 36
- Because of shortage à hospital follows a policy – only patients who
suffer from acute renal failure, which can be treated and remedied
by renal dialysis are given automatic access; patients like appellant,
who suffer from chronic renal failure are not admitted automatically
- Appellant alleged that he could not afford treatment at private
hospitals and he sought a judicial order directing Addington
Hospital to provide necessary treatment
- His application was dismissed, and he then applied for leave to
appeal to the Constitutional Court. His claim was based on sections
27(3) and 11 of the 1996 Constitution…
Appellant’s contention/s:
- that section 27(3) should be construed consistently with the right to
life entrenched in section 11 of the Constitution and that everyone
requiring life-saving treatment who is unable to pay for such
treatment herself or himself is entitled to have the treatment
provided at a state hospital without charge.
- Relied upon Paschim Banga Khet Mazdoor Samity and others v
State of West Bengal and another
Held:
- What is apparent from these provisions is that the obligations
imposed on the state by sections 26 and 27 in regard to access to
housing, health care, food, water and social security are dependent
upon the resources available for such purposes, and that the
corresponding rights themselves are limited by reason of the lack of
resources. Given this lack of resources and the significant demands
on them that have already been referred to, an unqualified
obligation to meet these needs would not presently be capable of
being fulfilled. This is the context within which section 27(3) must be
construed.
- This Court has dealt with the right to life in the context of capital
punishment but it has not yet been called upon to decide upon the
parameters of the right to life or its relevance to the positive
obligations imposed on the state under various provisions of the bill
of rights.
- The purposive approach [to constitutional interpretation] will often
be one which calls for a generous interpretation to be given to a
right to ensure that individuals secure the full protection of the bill of
rights, but this is not always the case, and the context may
indicate that in order to give effect to the purpose of a particular
provision 'a narrower or specific meaning' should be given to it.
- If section 27(3) were to be construed in accordance with the
appellant's contention it would make it substantially more difficult for
the state to fulfill its primary obligations under sections 27(1) and (2)
to provide health care services to (everyone' within its available
resources. It would also have the consequence of prioritising the
HUMAN RIGHTS 3D | ATTY. TEMPROSA
treatment of terminal illnesses over other forms of medical care and
would reduce the resources available to the state for [non-life
threatening medical needs].
- Section 27(3) itself is couched in negative terms - it is a right not to
be refused emergency treatment. The purpose of the right seems
to be to ensure that treatment be given in an emergency, and is not
frustrated by reason of bureaucratic requirements or other
formalities .... What the section requires is that remedial treatment
that is necessary and available be given immediately to avert that
harm.
- At present the Department of Health in KwaZulu-Natal does not
have sufficient funds to cover the cost of the services which are
being provided to the public .... There are many more patients
suffering from chronic renal failure than there are dialysis machines
to treat such patients. This is a nation-wide problem and resources
are stretched in all renal clinics throughout the land… By using the
available dialysis machines in accordance with the guidelines more
patients are benefited than would be the case if they were used to
keep alive persons with chronic renal failure, and the outcome of
the treatment is also likely to be more beneficial because it is
directed to curing patients.
- These choices involve difficult decisions to be taken at the
political level in fixing the health budget, and at the functional
level in deciding upon the priorities to be met. A court will be
slow to interfere with rational decisions taken in good faith by the
political organs and medical authorities whose responsibility it is to
deal with such matters
- Cited case: health authorities of all kinds are constantly pressed to
make ends meet.... Difficult and agonising judgments have to be
made as to how a limited budget is best allocated to the maximum
advantage of the maximum number of patients. That is not a
judgment which the court can make.
Atty. Temprosa: magic word – reasonable; it appears that it has utilitarian
approach; but also, it could be a pragmatic approach.
GOVERNMENT OF SOUTH AFRICA v GROOTBOOM
Facts:
- Grootboom and most other respondents (390 adults & 510 children)
lived in a squatter settlement called Wallacedene
- Living conditions – “lamentable” – very low income populations,
overcrowded shacks, lack electricity, no water or sewage or refuse
remove services, area partly water-logged, close to a main
thoroughfare; many applied for subsidized low-cost housing had
been on the waiting list up to 7 years
CASTILLO | 37
- respondents began to move out of Wallacedene in September
1998, putting up shacks on vacant privately owned land (named
'New Rust') that was earmarked for eventual low- cost housing.
- Owner brought it to court, resulted in an order instructing sheriff to
evict them and dismantle their shacks; but ordered to identify
alternative land for permanent or temporary occupation
- Respondents were evicted à bulldozed and possessions destroyed
- Respondents applied to Cape of Good Hope Hight Court for an
order requiring the government to provide them with adequate basic
housing until they obtained permanent accommodation.
- Court ordered appellants to provide respondents with shelter –
tents, portable latrines, and a regular supply of water would
constitute the bare minimum.
Issue: The question is therefore not whether socio-economic rights are
justiciable under our Constitution, but how to enforce them in a given case...
Held:
- The Court turned to a discussion of the ICESCR and the work of
the UN Committee on ESCR. The opinion emphasized Art. 11 (the
right of everyone to an adequate standard of living ... , including
adequate food, clothing and housing) and Art. 2 (States parties will
take appropriate steps to ensure the realization of this right ... to the
maximum of available resources etc.).
- Each right has a "minimum essential level" that must be satisfied
by the states parties .... Minimum core obligation is determined
generally by having regard to the needs of the most vulnerable
group that is entitled to the protection of the right in question. It is in
this context that the concept of minimum core obligation must be
understood in international law
- It is not possible to determine the minimum threshold for the
progressive realisation of the right of access to adequate housing
without first identifying the needs and opportunities for the
enjoyment of such a right. These will vary according to factors such
as income, unemployment, availability of land and poverty.
Section 26:
- there is, at the very least, a negative obligation placed upon the
state and all other entities and persons to desist from preventing or
impairing the right of access to adequate housing. The negative
right is further spelt out in subsection (3) which prohibits arbitrary
evictions. Access to housing could also be promoted if steps are
taken to make the rural areas of our country more viable so as to
limit the inexorable migration of people from rural to urban areas in
search of jobs.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
- For those who can afford to pay for adequate housing, the state's
primary obligation lies in unlocking the system, providing access to
housing stock and a legislative framework to facilitate self-built
houses through planning laws and access to finance. Issues of
development and social welfare are raised in respect of those who
cannot afford to provide themselves with housing. State policy
needs to address both these groups. The poor are particularly
vulnerable and their needs require special attention.
- The state's obligation to provide access to adequate housing
depends on context, and may differ from province to province,
from city to city, from rural to urban areas and from person to
person.
Reasonable legislative and other measures:
- What constitutes reasonable legislative and other measures must
be determined in the light of the fact that the Constitution
creates different spheres of government: national government,
provincial government and local government
- They must, however, ensure that the measures they adopt are
reasonable .... A court considering reasonableness will not enquire
whether other more desirable or favourable measures could have
been adopted, or whether public money could have been better
spent.
- Those whose needs are the most urgent and whose ability to enjoy
all rights therefore is most in peril, must not be ignored .... It may
not be sufficient to meet the test of reasonableness to show that the
measures are capable of achieving a statistical advance in the
realisation of the right
- Section 26 does not expect more of the state than is achievable
within its available resources .... The measures must be calculated
to attain the goal expeditiously and effectively but the availability of
resources is an important factor in determining what is reasonable.
- These are people in desperate need. Their immediate need can be
met by relief short of housing which fulfils the requisite standards of
durability, habitability and stability encompassed by the
definition of housing development in the [Housing] Act.
- Effective implementation requires at least adequate budgetary
support by national government. This, in turn, requires recognition
of the obligation to meet immediate needs in the nationwide
housing programme. Recognition of such needs in the nationwide
housing programme requires it to plan, budget and monitor the
fulfilment of immediate needs and the management of crises… In
conclusion ... the programmes adopted by the state fell short of the
requirements of section 26(2) in that no provision was made for
relief to the categories of people in desperate need identified earlier
CASTILLO | 38
Evaluation of the conduct of the appellants
- The state had an obligation to ensure, at the very least, that the
eviction was humanely executed. However, the eviction was
reminiscent of the past and inconsistent with the values of the
Constitution. The respondents were evicted a day early and to
make matters worse, their possessions and building materials were
not merely removed, but destroyed and burnt
- I stress however, that despite all these qualifications, these are
rights, and the Constitution obliges the state to give effect to them.
This is an obligation that courts can, and in appropriate
circumstances, must enforce.
Atty. Temprosa: in order to comply with minimum core obligations à
requires that you have reasonable programmes BUT WHAT DO YOU
MEAN BY REASONABLENESS
Atty. Temprosa: progressive – taking steps forward; again, minimum core.
In Olga Tellis – interrelated à civil and political rights and the minimum core
obligations here.
- ESCR rights – “reasonableness”
TREATMENT OF ACTION CAMPAIGN (TAC) v. MINISTER OF HEALTH
Facts:
- TAC – lead applicant among other civil society groups working on
HIV/AIDS
- HIV/AIDS epidemic – reached catastrophic proportions; common
transmission à Mother to child; 70,000 children are infected every
year
- Registered Nevirapine – to reduce mother-to-child transmission of
HIV – that it is safe, of acceptable quality, and therapeutically
efficacious
- In July 2000 – manufacturer offered to make it available to the
South African government free of charge for a period of 5 years
- Government decided to make it available only at a limited number
of pilot sites à doctors in the public sector who do not work at one
of those pilot sites are unable to prescribe
- Applicants are aware of the desirability of a multiple-strategy
approach to the prevention of mother-to-child transmission.
However, they cannot and do not accept that this provides a
rational or lawful basis for depriving patients at other sites of the
undoubted benefits of Nevirapine.
o Argument: There is no rational or lawful basis for allowing
doctors in the private sector to exercise their professional
judgment in deciding when to prescribe Nevirapine, but
HUMAN RIGHTS 3D | ATTY. TEMPROSA
effectively prohibiting doctors in the public sector from
doing so.
o Government failed to implement a comprehensive
programme for the prevention – conduct of government is
irrational, in breach of the Bill of Rights and in breach of its
international obligations
Contention of government: Counsel for the government contended that even
if this Court should find that government policies fall short of what the
Constitution requires, the only competent order ... that a court can make is to
issue a declaration of rights to that effect.
Discussion:
- This right, so the contention went, has a minimum core to which
every person in need is entitled. The concept of "minimum core"
was developed by the United Nations Committee on [ESCR in its
General Comment No.3]
- There is accordingly a distinction between the self-standing rights in
sections 26(1) and 27(1), to which everyone is entitled, and which
in terms of section 7(2) of the Constitution" [t]he state must
respect, protect, promote and fulfil", and the independent
obligations imposed on the state by sections 26(2) and 27(2).
- [IMPORTANT] Although Yacoob J [in Grootboom] indicated that
evidence in a particular case may show that there is a minimum
core of a particular service that should be taken into account in
determining whether measures adopted by the state are
reasonable, the socio-economic rights of the Constitution should
not be construed as entitling everyone to demand that the minimum
core be provided to them. Minimum core was thus treated as
possibly being relevant to reasonableness under section 26(2),
and not as a self-standing right conferred on everyone under
section 26( 1).
- The Constitution contemplates rather a restrained and focused role
for the courts .... Determinations of reasonableness may in fact
have budgetary implications, but are not in themselves directed
at rearranging budgets. In this way the judicial, legislative and
executive functions achieve appropriate constitutional balance.
Different issues:
a. As to efficacy – Clear from evidence that nevirapine will save lives
of a significant number of infants
b. Resistance – prospects of the child surviving if infected are so slim
and the nature of the suffering so grave that the risk of some
resistance manifesting at some time in the future is well worth
running.
c. Safety – no more than a hypothetical issue; recommended without
qualification by WHO
CASTILLO | 39
d. Consideration relevant to reasonableness – must be balanced and
flexible and make appropriate provision for attention to crises and to
short, medium, long term needs
e. Children’s rights – state is obliged to ensure that children are
accorded the protection contemplated by section 28 that arises
when the implementation of the right to parental or family care is
lacking. Here we are concerned with children born in public
hospitals and clinics to mothers who are for the most part indigent
and unable to gain access to private medical treatment which is
beyond their means. They and their children are in the main
dependent upon the state to make health care services available to
them.
Power of Courts
- This Court has made it clear on more than one occasion that
although there are no bright lines that separate the roles of the
legislature, the executive and the courts from one another, there
are certain matters that are pre-eminently within the domain of one
or other of the arms of government and not the others. All arms of
government should be sensitive to and respect this separation. This
does not mean, however, that courts cannot or should not make
orders that have an impact on policy
- The primary duty of courts is to the Constitution and the law....
The Constitution requires the state to "respect, protect, promote,
and fulfil the rights in the Bill of Rights" Where state policy is
challenged as inconsistent with the Constitution, courts have to
consider whether in formulating and implementing such policy
the state has given effect to its constitutional obligations.
- Particularly in a country where so few have the means to enforce
their rights through the courts, it is essential that on those
occasions when the legal process does establish that an
infringement of an entrenched right has occurred, it be effectively
vindicated. The courts have a particular responsibility in this
regard and are obliged to 'forge new tools' and shape
innovative remedies, if needs be, to achieve this goal
- We thus reject the argument that the only power that this Court has
in the present case is to issue a declaratory order. Where a breach
of any right has taken place, including a socio-economic right,
a court is under a duty to ensure that effective relief is granted.
No violations here.
Atty. Temprosa: Meaning of self-standing right
- Can work on its own – independent
- Doctrine: can is not institutionally equipped
HUMAN RIGHTS 3D | ATTY. TEMPROSA
MAZIBUKO v CITY OF JOHANNESBURG
Facts:
- Government adopted Water Services Act recognized everyone's
'right of access to basic water supply and basic sanitation' and
required every water services institution to 'take reasonable
measures to realise these rights'.
o 'basic water supply' as 'the prescribed minimum standard
of water supply services necessary for the reliable supply
of a sufficient quantity and quality of water to households,
including informal households, to support life and personal
hygiene.'
- Regulation 3 provides: minimum quantity of water is 25L per
person; City to provide the 6 kilolitres of free water to rich and poor
alike
- 1994 – 12 million people did not have adequate access
- 2006 – down to 8 million; 3.3M of which, no access at all
- Applicants live in Soweto, next to Johannesburg, a city with 3.2
million people living in about a million households, half of which are
very poor and almost one-fifth of which are located in informal
settlements. Almost 20 per cent of households have no access to
basic sanitary services and 10 per cent have no access to a tap
providing clean water within 200 metres of their home.
- Respondents - water company was wholly owned by the City, no
issue arose concerning the responsibilities of private actors.
- Pipes to Soweto were badly corroded and extensive leakage
occurred. Sowetan households consumed an average of 67
kilolitres per month, but were charged a flat rate based on a
deemed consumption of 20 kilolitres. The company introduced
Operation Gcin'amanzi (to save water), initiated in Phiri. It
abandoned the flat rate system of deemed consumption and
introduced three service levels
Applicants' argument: that the Court should adopt a quantified standard
determining the content of the right not merely its minimum content.
Role of courts in determining the content of social and economic rights
- First, the Constitution requires the state to take reasonable
legislative and other measures progressively to achieve the
right of access to sufficient water within available resources. It
does not confer a right to claim "sufficient water" from the state
immediately. Social and economic rights empower citizens to
demand of the state that it acts reasonably and progressively to
ensure that all enjoy the basic necessities of life. In so doing, the
social and economic rights enable citizens to hold government to
account for the manner in which it seeks to pursue the achievement
of social and economic rights.
CASTILLO | 40
- Secondly, ordinarily it is institutionally inappropriate for a court
to determine precisely what the achievement of any particular
social and economic right entails and what steps government
should take to ensure the progressive realisation of the right.
This is a matter, in the first place, for the legislature and executive,
the institutions of government best placed to investigate social
conditions in the light of available budgets and to determine what
targets are achievable in relation to social and economic rights.
o If government takes no steps to realise the rights, the
courts will require government to take steps. If
government's adopted measures are unreasonable, the
courts will similarly require that they be reviewed so as to
meet the constitutional standard of reasonableness.
- Finally, the obligation of progressive realisation imposes a duty
upon government continually to review its policies to ensure
that the achievement of the right is progressively realised.
Relevance of regulation
National government should set the targets it wishes to achieve in respect of
social and economic rights clearly.... The minimum standard set by the
Minister informs citizens of what government is seeking to achieve. In so
doing, it enables citizens to monitor government's performance and to
hold it accountable politically if the standard is not achieved. This also
empowers citizens to hold government accountable through legal challenge
if the standard set is unreasonable.
A reasonableness challenge requires government to explain the choices
it has made. To do so, it must provide the information it has considered and
the process it has followed to determine its policy.
Reasonableness of City’s Free Basic Water policy
- first question is whether it is unreasonable for the City to provide
the 6 kilolitres of free water to rich and poor alike.... First, [the City]
asserts that the rising block tariff structure means that wealthier
consumers, who tend to use more water, are charged more for their
heavier water usage.
- Again the City presents cogent evidence that it is difficult to
establish how many people are living on one stand at any
given time; and that it is therefore unable to base the policy on a
per person allocation. This evidence seems indisputable. The
continual movement of people within the city means that it would be
an enormous administrative burden, if possible at all, for the City to
determine the number of people on any given stand sufficiently
regularly to supply a per person daily allowance.
Litigating social and economic rights
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 41

- The outcome of the case is that the applicants have not persuaded
this Court to specify what quantity of water is "sufficient water" Civil and political rights (CPR) Economic and social rights
within the meaning of section 27 of the Constitution. Nor have they Universal, paramount, categorical Belong to a different logical
persuaded the Court that the City's policy is unreasonable. The moral rights category
applicants submitted during argument that if this were to be the i.e. à TEST: Universality and paramountcy à to be considered human
result, litigation in respect of the positive obligations imposed by rights
social and economic rights would be futile. It is necessary to
consider this submission. AS TO UNIVERSALITY – Right to work (Cranston) - refers directly to a
- The purpose of litigation concerning the positive obligations particular class of people, not to all human beings
imposed by social and economic rights should be to hold the - ALSO: Many civil and political rights fail such test of universality.
democratic arms of government to account through litigation. In so - Example: only citizens who have attained a certain age and
doing, litigation of this sort fosters a form of participative democracy completed formalities of registration have right to vote.
that holds government accountable and requires it to account
between elections over specific aspects of government policy. AS TO PARAMOUNTCY – Cranston singles out the right to periodic holidays
- When challenged as to its policies relating to social and economic with pay
rights, the government agency must explain why the policy is - HOWEVER: such a right is no less important than, say, the right of
reasonable. Government must disclose what it has done to juveniles to separate prison facilities, which is recognized in the
formulate the policy: its investigation and research, the alternatives ICCPR
considered, and the reasons why the option underlying the policy - Paid holidays – right to “rest, leisure, and reasonable limitation of
was selected. The Constitution does not require government to working hours and periodic holidays with pay.”
be held to an impossible standard of perfection. Nor does it o Hardly the typical economic and social right.
require courts to take over the tasks that in a democracy should
properly be reserved for the democratic arms of government AS TO PRACTICALITY – Cranston’s appeal to (im)practicality is more
Atty. Temprosa: if process followed is flawed, information gathered is complex. “‘Political rights’ can be readily secured by legislation. The
inadequate; economic and social rights can rarely, if ever, be secured by legislation
Establishing an amount – will result to unevenness alone”
- Administratively burdensome Civil and political rights Economic and social rights
As to measure reasonableness? Is this enough? Do you agree? Can be secured by legislation Can rarely, if ever, be secured by
legislation alone.
ECONOMIC RIGHTS AND GROUP RIGHTS - IN FACT, HOWEVER – no right can reliably realized through
JACK DONNELLY legislation alone
o Consider: enforcement à otherwise, legal and politically
Two principal challenges to the Universal Declaration model: insecure
a. Status of economic and social rights
b. Restriction of internationally recognized human rights Cranston claims that “there is nothing essentially difficult about transforming
political and civil rights into positive rights,” whereas realizing economic and
I. Status of Economic and Social Rights social rights is “utterly impossible” in most countries.
- “civil and political rights” AND “economic, social, and cultural rights” Civil and political rights Economic and social rights
- Dichotomy born of political controversy Can be transformed into positive Utterly impossible to transform into
rights positive rights
A. UNIVERSALITY AND PARAMOUNTCY
Economist: to guarantee these Potentially costly
Most cited argument (Maurice Cranston): whereas traditional civil and
rights is relatively cheap
political rights to life, liberty, and property are “universal, paramount,
Hugo Adam Bedau: argument from indifference to economic
categorical moral rights”, economic and social rights “belong to a different
contingencies
logical category” —that is, are not truly human rights.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 42

- IN FACT, HOWEVER – there severe impediments to establishing
an effective positive right, e.g. freedom of speech in North Korea.
Only in particular kinds of political circumstance are CPR likely to
be systematically easier to implement.
- Ease of implementation is certainly irrelevant to determining
moral paramountcy.
AS TO OUGHT IMPLIES CAN – Cranston argues that it is logically
incoherent to hold that economic and social “rights” are anything more than
utopian aspirations.
- “can” in “Ought implies can” – refers to physical impossibility
- unless it is physically impossible, one may still be obliged to try to
do something that proves to be “impossible.” The impediments to
implementing most economic and social rights, however, are
political.
B. POSITIVE AND NEGATIVE RIGHTS
Positive Negative
Require others to provide goods, Require only forbearance on the
services, or opportunities part of others
- Henry Shue – this distinction is of little moral significance; fails to
correspond to the distinction
violation involves the direct the failure to confer a benefit (acts
infliction of injury (an act of of omission)
commission)
Shue: still, little moral difference
C. RIGHT TO PROPERTY
- Almost all critics accept a right to private property.
Cranston concludes his property chapter by insisting that property “is
inseparable from liberty”. Enough food to remain alive and guaranteed rest
and leisure, however, are also inseparable from liberty, but Cranston denies
human rights to these things.
- A limited right to property can make an important contribution to a
life of dignity. This single economic right alone, however, simply
cannot provide economic security and autonomy for all. In fact,
for many people—in the Western world, most people, whose
principal “property” is their labor power or skills—other economic
and social rights would seem to be a better mechanism to realize
economic security and autonomy.
D. TRANSCENDING THE DICHOTOMY
- Obscures the immense diversity within each of its two classes

Right to Protection against torture CIVIL AND POLITICAL RIGHTS

Positive Negative Rights to life, protection against Protect the bodily, legal, and moral
Providing protection AGAINST Requires “nothing more” that that discrimination, prohibition of integrity of individuals
torture - programs to train, the state refrain from incursions on slavery, recognition before the
supervise, and control the police personal liberty and bodily integrity law, protection against torture,
and security forces and nationality
- Whether right is positive or negative – depends on historically Rights to habeas corpus, Provide procedural guarantees for
contingent circumstances protection against arbitrary arrest individuals in their dealings with the
- Example: In Argentina, protection against torture was a very and detention, the presumption of legal system
positive right indeed in the late 1970s. Today it is a much more innocence, and protection against
negative right. ex post facto laws
rights to freedom of thought, define both a private sphere of
Conversely, in some circumstances government inaction may be the key conscience, speech, press, conscience and belief and a public
to realizing the positive-sounding right to food. association, and assembly space in which these “private”
- All human rights require both positive action and restraint on the issues, as well as public concerns,
part of the state. can be freely discussed, criticized,
and advocated
Cranston and Bedau: right to popular participation in empower citizens to participate in
Civil and political rights Economic and social rights government, and many public politics and exercise some control
“negative” civil and political rights violating “positive” economic and aspects of civil liberties over the state
deserve priority because their social rights usually involves only
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 43

ECONOMIC, SOCIAL, AND CUTURAL RIGHTS Argument of author: individual rights approaches usually are capable of
Rights to food and health care Provide survival and minimal accommodating the legitimate interests of even oppressed groups—and that
physical security against disease or where they are not, group human rights rarely will be more likely to provide
injury an effective remedy.
Rights to social security, work, reflect not only the material
rest and leisure, and trade unions necessity of labor but also the fact A. INDIVIDUAL RIGHTS AND GROUP DIFFERENCE
that meaningful work often is central
to personal dignity and development Two principal mechanisms:
rights to education, to found and Provide social and cultural a. Nondiscrimination
maintain a family, and to membership and participation b. Freedom of association and participation
participate in the cultural life of the
community Non-discrimination Freedom of association
protects a sphere of personal and entitle individuals to act, alone or
Striking affinities across the conventional categories: group liberty and offers protection with others of their choosing, to
a. Right to work – a right to economic participation that is against suffering imposed for group realize their visions of the good life.
instrumentally and intrinsically valuable in ways very much like the membership.
right to political participation - Together – provide a wide-ranging and coherent set of protections
b. Cultural rights – related to individual civil liberties, given the integral for groups and individuals rooted in the core values of equality and
place of religion, public speech, and the mass media in the cultural autonomy
life of most communities
Individual rights approaches to group difference rest on the idea that group
IMPORTANT: affiliations—other than membership in the species Homo sapiens— ought to
Our lives—and the rights we need to live them with dignity—do not fall be irrelevant to the rights and opportunities available to human beings.
into largely separate legal-political and socioeconomic spheres.
Economic and social rights usually are violated by, or with the collusion Three general approaches to NON-DISCRIMINATION:
of, elite-controlled political mechanisms of exclusion and domination. Toleration involves not imposing special legal burdens or
Poverty in the midst of plenty is a political phenomenon. Civil and political disabilities on individuals based on voluntary,
rights are often violated to protect economic privilege. We must think ascriptive, or imposed group membership or
about and categorize human rights in ways that highlight rather than disapproved behavior associated with a group.
obscure such central social realities. Equal Protection requires active efforts to insure that members of all
groups enjoy the (equal) rights that they formally
How one thinks about human rights cannot determine political practice. hold.
Nonetheless, certain ways of thinking, such as the traditional - Minimum: not excluded from goods,
dichotomy, can help to support widely prevalent patterns of human services, and opportunities that would be
rights violations. In every country where ruling elites have been able to available to them were they not members
enforce such a dichotomization, the consequence has been the of despised or disadvantaged groups
systematic violation of a wide range of internationally recognized human - “affirmative action” and certain kinds of
rights. “reverse discrimination”
Multiculturalism positively values diversity, implying policies that
II. GROUP RIGHTS AND HUMAN RIGHTS recognize, celebrate, preserve, or foster group
differences.
Standard complaint: excessively individualistic - Differences are highlighted and positively
Remedy: Group human rights valued, within a general context of equal
concern and respect
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 44

Different states are free to choose among them, for a variety of reasons, Decolonization – a practical prerequisite to the enjoyment of internationally
and particular groups and their differences may reasonably be addressed by recognized human rights. And it is the subjected people as a group that have
different approaches within a particular country. this right. (only a first step on the way to the protection of human rights)
- Example: it would be completely consistent with international
human rights standards for a state to merely tolerate one minority C. SEVEN SKEPTICAL QUESTIONS ABOUT GROUP HUMAN
religion while actively supporting the majority religion and a different RIGHTS
minority religion. Author’s stance: which if any group human rights beyond the right of peoples
- Rationale: margin of appreciation left to states to self-determination ought to be recognized?
- General approach: permissive, not determinative How do we identify wild proliferation of human rights that would
o “allows for a state committed to the survival and flourishing the groups that ought devalue the practical force of claims of human
of a particular nation, culture, or religion, or of a (limited) to hold human rights? rights. Certainly not all groups ought to have
set of nations, cultures, and religions—so long as the human rights. Consider, for example, states,
basic rights of citizens who have different commitments or multinational corporations, gangs, and
no such commitments at all are protected” barbershop quartets.
Having identified The most limited move would be to recognize
Freedom of association group x as a potential those rights needed to enjoy already
models group membership as a “voluntary” exercise of the protected holder of human recognized human rights. These, however,
autonomy of its members. rights, what particular would be only temporary, remedial measures,
substantive rights and thus probably best seen as practical
B. GROUPS RIGHTS AND GROUP HUMAN RIGHTS does or should x measures to achieve nondiscrimination.
Group Rights Group Human Rights have?
rights held by a corporate entity Group right à human right Who exercises group The rights of states are exercised by
that is not reducible to its individual - MUST be UNIVERSAL; all rights? governments. The rights of business
members groups of the specified corporations are exercised by shareholders,
type must have such right directors, and managers. Who ought—and is
Example: Right of peoples to self- able—to exercise, for example, minority rights,
State – distinct from that of its determination understood as rights of a group?
citizens where the group is “natural,” ascribed, or
- National interests – not coercively defined and maintained, agency is
the sum of the interests of likely to be highly problematic, especially when
the citizens the group is large, heterogeneous, or widely
Business corporations – distinct dispersed.
from stockholders or staff How do we handle group rights will not only increase the number
Atty. Temprosa: conflicts of rights of conflicts but also create unusually intense
First Gen rights – CPR competition between qualitatively different
Second Gen rights – ESCR kinds of rights
Third Gen rights – Collective or group rights Are the purported Burden of proof – ought to lie with advocates of
group rights group rights
National Implementation of internationally recognized human rights - necessary? Is the
one enjoys one’s human rights through the agency of “one’s own” state problem a lack of
group rights or rather
Overseas colonialism - failed to provide a state that protects the equal inadequate efforts to
human rights of subjected peoples; well-recognized standard threat to
human dignity
HUMAN RIGHTS 3D | ATTY. TEMPROSA
implement individual
human rights?
Why should we If a government refuses to respect the
expect group rights to individual rights of a despised minority, it will
succeed where usually (although perhaps not always) be hard
individual rights have to imagine it being convinced to treat those
failed? people better as members of a group. If the
difference between “us” and “them” is
emphasized by group rights, might this not lead
to even worse treatment?
Are group rights the demand an argument for protecting the values
best way to protect or in question through the mechanism of rights. In
realize the interests, particular, we must ask whether recognizing a
values, or desires of a new group human right—which by definition
group? would hold against all states for all groups of
the designated type—is either necessary or
desirable.
D. INDIGENOUS PEOPLES – AN EXCEPTION TO THE INDIVIDUAL
RIGHTS APPROACH
Internationally recognized human rights for indigenous people should be
seen as an exception that proves the rule rather than a model for a new
general approach to group rights.
Indigenous community
- It is geographically and culturally separate from the mainstream
society
- fragile in the sense that well-established mainstream institutions
(e.g., private property in land) would as an unintended
consequence radically alter the community’s way of life in a fashion
that most members would reject if given a choice.
- The choice by an indigenous community of a particular way of life
that is vulnerable in special ways to outside attack demands not
merely respect from mainstream society and institutions but
accommodation and protection.
E. PROTECTING GROUP IDENTITY IN A HUMAN RIGHTS
FRAMEWORK
Author: Membership and participation in a variety of social groups is an
essential part of a life of dignity. Many groups appropriately have a variety of
rights. My argument against group human rights should not obscure
these important points.
- An individual rights approach to difference may, it must be
acknowledged, lead to the weakening, even the demise, of some
minority (and other group) identities. Group identities, however, are
CASTILLO | 45
not now, and I think should not become, subjects of international
human rights protection. Only individual autonomy gives rise, and
value, to identities that must be respected by others.
- Identity is entitled to protection only where it is an autonomous
expression of the rights and values of those who carry it.
- In such a social and political environment, groups of all sorts have a
fair opportunity to compete in shaping the identities of their
members. If a particular identity is valued sufficiently, it will survive,
perhaps even thrive. If not, then it will not. And that is the way it
should be.
- This does not preclude active state support for a threatened or
declining group. Such support, however, reflects a more or less
voluntary decision of justice or policy that a state or society is free
(not compelled) to make for particular groups of its choosing. No
group is entitled to such support simply because it is a group (or
even a group of a particular type, such as a racial minority).
HUMAN RIGHTS AND DEVELOPMENT: A COMMENT ON CHALLENGES
AND OPPORTUNITIES FROM A LEGAL PERSPECTIVE
SIOBHAN MCINERNEY-LANKFORD, 2009
“Underappreciated” point: human rights are the subject of binding
international legal obligations and their relevance to development can be
understood in light of this
Introduction
The relationship between human rights and development today is arguably
defined more by its distinctions and disconnects than by its points of
convergence, despite substantial evidence of the potential for mutual
reinforcement.
Human rights could be integrated more systemically into development
policy and practice, for three reasons:
a. They are intrinsically valuable in aiming to protect human dignity
(e.g. jus cogens) and may be (negatively) affected by development
so that development policy should identify ways to at a minimum
meet the ‘do no harm’ threshold
b. They are also instrumentally useful to enhance development
processes, address certain types of social risk, ensure
accountability, and ultimately secure more equitable and
sustainable development outcomes.
c. As a matter of public international law, human rights treaty
obligations are legally binding States parties, and under custom
bind all states other than persistent objectors: as such they should
be respected in all contexts, including development.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
The Relationship Between Human Rights and Development
Convergence and Divergence
PARAMETERS OF THE OVERLAP
Factual/Substantive one can identify a confluence of human rights and
Overlap development in the expanding range of functions,
activities, and policies of development agencies
and international financial institutions (IFIs) which
overlap with the material provisions of human
rights treaties
Development projects and programs now cover
the gamut of social and human development,
much of which bear a direct relationship to core
economic and social rights, and connect to a
number of civil and political rights. Development
institutions conduct a broad range of operations in
the fields of health, education, labor and social
security, children and youth, and food. They
increasingly promote governance programs, anti-
corruption strategies, as well as justice reform
and rule of law activities. However, while there is
much substantive congruence, this ‘factual
overlap’ does not automatically align with all
the objectives of such operations and those of
‘corresponding’ human rights treaties.
Convergent there is a documented overlap between human
Principles rights and development evident in the principles
that are now prominent in the mainstream of
development policy. Principles like participation
and consultation, inclusion, cohesion, good
governance, accountability and equality or
equity, are well established in development
discourse, but they also constitute the tenets of a
rights-based approach to development with roots
in human rights philosophy or conventions.
Equality – heart of the international human rights
framework – in instruments likes CEDAW, CRPD,
CERD, ICCPR, ICESCR. Development discourse
often embraces equality principles, sometimes
finding its analogues in the principle of equity.
At the level of principle therefore, a concerted
effort exists to integrate human rights into
CASTILLO | 46
development policy and practice, which has
enriched development discourse and improved
development processes and outcomes through
securing greater participation, consultation, and
equity.
Obligations It is potentially the most important, but also the
least established. It is common to encounter
statements that assert a link between human
rights and development, or claims that
development either contributes to the realization
of human rights or creates the conditions under
which human rights can be realized.
Specification of obligations and duty
At a philosophical level ‘rights require
correlative duties’, and without duty there is no
right.
PIL Sources: treaties, custom, and general
principles of law
In conclusion therefore, the relationship at a factual level evidences
substantial overlap; at the level of principles, a certain compatibility and
convergence, but at the level of obligations or duty, something more like
divergence.
Reasons for the enduring disconnects and tensions:
a. Legal or mandate constraints - Development agencies assert
that human rights are inherently political – thus, outside their
established mandate and competence.
b. Political Resistance and value-based objections – human rights
is not a concept around which there can be said to be consensus,
and at an international level it is one of inescapable political
sensitivity, with states fiercely protective of their human rights
records and resistant to rankings, assessments and censure; seen
as a controversial subject in development agencies and IFIs;
divisive potential.
o many oppose what they perceive as double standards and
hypocrisy when the dictates come from countries with
economic power rather than exemplary human rights
records.
o Disproportionate impact human rights-related
conditionalities might have on certain member countries –
that is beyond the disproportionate impacts on borrowing
countries.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 47

- Trend across policies of development agencies continues to

c. Disciplines and approaches evidence a ‘separability’
Development Human Rights - Bridging policies – to integrate human rights in principles,
Traditionally been the purview of Predicated towards legal norms perspectives or considerations rather than obligations, and to leave
economists, social scientists, and and rules, which have been largely them without specific anchorage in laws and treaties
sectoral or technical experts drafted and interpreted by lawyers - Human rights may become part of the general policy narrative,
Tend to rely on evidence-based Operate from normative precepts but rarely are the legal ramifications of specific instruments
approaches articulated in development policies that reference them, potentially
approach issues in programmatic, practitioners likely start from a limiting the degree to which human rights can in fact be integrated.
forward-looking terms, predicated more explicitly normative baseline
towards practical solutions, trade- driven by principles like indivisibility Frameworks that evidence the separation of development and human rights
offs and the rendering of technical and universality. They possibly a. Millennium Development Goals – governed by political goals and
assistance, whether at a country, adopt a retrospective outlook, from resultant policy frameworks that do not mention human rights or the
sector or project level which responsibility for non- relevant human rights treaty frameworks
realization of human rights may be o MDGs – time-bound development targets that emanate
assigned and where poverty is from the 2000 UN Millennium Summit, along with the
viewed as a denial, or even Millennium Declaration; exemplify a framework in which,
violation of human rights. despite their deep relevance to each Goal, specific human
d. Institutional arrangements – Human rights and development rights are not mentioned in the Goals or their targets; this
cooperation may be handled by separate teams within ministries of is to be contrasted with the provisions of the Millennium
foreign affairs, or development cooperation may be managed by a Declaration which contain multiple references to human
separate aid agencies altogether. In the field this may be reflected rights.
in individual donors having human rights and policy dialogue o Global Monitoring – monitoring framework that focuses on
conducted by their embassies and development programs by their how the world is doing in implementing the policies and
development agencies. actions for achieving the MDGs and related development
outcomes; does not expressly refer to rights or obligations
Consequences of the divergent discourse o Examples: WB’s Operational Policy; UN Core Strategy on
- An uneven recognition of human rights in development discourse, MDGs; or ADB’s Strategy 2020 – each reflects the
policy and operational frameworks and an underemphasizing of disconnect between development policy and human rights
their binding nature frameworks, with few, if any references to human rights
- Result in lost opportunities for human rights treaties to positively o CEDAW, CRC, or the ICESCR, despite substantive
inform development processes and programming and provide overlap, are not incorporated.
relevant input where specific rights are in issue in the planning or b. Aid effectiveness – The Paris Declaration confirmed five core
assessment of particular activities. principles: ownership, alignment, harmonization, managing for
- Certain human rights may be relevant to particular development results and mutual accountability to improve the quality of aid and
processes and activities, but the relevance may not be generalized, its impact on development. It promulgated a more detailed,
nor involve all human rights operational framework based on actions in its 56 partner- ship
- Recognition of the relevance of human rights obligations might commitments and 12 indicators. Despite the ways in which aid
ensure, to some extent, the place of human rights in development modalities can impact human rights and the ways in which human
as rights for which states have assumed responsibility. rights might inform the principles set out to govern the delivery of
aid, the Rome and Paris Declarations remained silent on human
Development Frameworks And The Incorporation Of Human Rights rights and do not address the mutual relevance of human rights and
aid effectiveness.
Development policy frameworks – convergence and divergence transposed o They also failed to recognize that ‘Aid is only effective if it
achieves good development results, and good
HUMAN RIGHTS 3D | ATTY. TEMPROSA
development results are not possible if gender inequalities
persist, environmental damage is accepted, or human
rights are abused’
o the human rights context, including their legal context, may
be useful to inform donors’ choices of aid instruments to
help strengthen accountability and ensure that resources
reach the poorest and least powerful.
c. Poverty reduction strategies – pre prerequisite for concessional
assistance from the International Development Association (IDA)
and the IMF, and debt relief under the Heavily Indebted Poor
Countries (HPIC) initiative of the World Bank and the International
Monetary Fund (IMF).
o Despite the overlap of human rights and poverty reduction
strategies at a factual or even principled level, human
rights are not the subject of concrete engagement within
PRSs and do not influence their design in any discernable
way, and is at best only implicitly incorporated in the
strategies in the tools and documents that relate to these.
o Occasional references to human rights exist in individual
PRSs, but few if any specific references are made to
international human rights treaties. Such references,
unaccompanied by links to specific inter- national human
rights instruments, may result in human rights being
incorporated only implicitly with little specific operational
relevance
Policy efforts to bridge development and human rights
- Most prominent policy frameworks governing development and aid
do not integrate human rights systematically. However, significant
efforts to link human rights and development and aid do exist,
including examples of policies that make explicit reference to the
international human rights law framework.
- A rights-based approach is mandated as integral to the form and
content of the UN’s development policy, and is central to the
approaches of both the UNDP, and the OHCHR, including in
relation to work on the MDGs and poverty. Many UN policy
frameworks and statements make reference to international legal
instruments as the source for human rights in development, or as
an overall guiding framework for international cooperation.
Examples:
- 2006 Swiss Agency for Development and Cooperation Policy
- Austrian Development Cooperation Human Rights Policy Document
- NZ’s international Aid and Development Agency
- Canadian legislation: 2008 Official Development Accountability Act
- EU Development Cooperation
CASTILLO | 48
- Policies of EBRD and NEPAD
- APRM
Conclusions regarding development frameworks and the incorporation of
human rights
1. First, the discussion of divergence above reveals that in most
development institutions or agencies human rights are not
characterized in legal or obligatory terms.
2. Second, policies that recognize the interconnection of development
policy and international law tend to take a more holistic view of
the participation of states in various fora, and the interlinked
nature of their duties in different international contexts.
o neglect the legal dimension of the former and states may
content to keep their treaty obligations under human rights
instruments separate from the processes and policies that
determine their contributions to, or allocations from,
development expenditures.
3. Third, even policies that bridge human rights and development are
typically stronger at the level of discourse than they are in
respect of assessment, monitoring and evaluation.
o From a different perspective, however, the signs of
bridging in certain policies point to ways in which the work
of international human rights bodies could be put to use in
development activities
4. Fourth, while there is no causality argued that neglect of the law
results in development policies’ failure to respect, protect and fulfill
human rights, there may be some weight to the reverse
argument that recognizing the importance of human rights law
obligations would require positive human rights outcomes in
development and efforts to safeguard against human rights harm
where possible.
Legal Dimensions of Human Rights in Development Policy –
Challenges and Opportunities
Value of the law in safeguarding the place of human rights in development
‘be clearly and systematically integrated into development’
- Human rights law is founded on a set of stable, positive law
commitments into which states have voluntarily entered, binding
them to put in place domestic measures and legislation compatible
with their treaty obligations. Human rights treaty obligations have
the benefit of being bounded and voluntarily acceded to, with the
specific parameters of states’ obligations carefully negotiated, and
circumscribed through reservation and derogation.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
- Human rights treaties are binding international agreements - like
trade agreements or environment treaties, which enjoy greater
recognition in development frameworks and have a direct bearing
on development.
- Despite the divisive politicization that plagues many human rights
processes, the specific contribution of approaches that integrate
human rights in development is that they make good practice and
principles a matter of obligation.
- The fact that human rights have not been more systematically
integrated into development demands an examination of the
approaches that have been used, in particular non-legal, social
science and principled-based approaches.
Normative Baselines and the principle of “do no harm”
- Absence of an explicit normative standard against which to assess
development
- Human rights law offers a normative baseline mandating non-
regression and a principle of ‘do no harm’, and uses this baseline to
strengthen and improve development practice.
- The incorporation of human rights legal standards mitigates human
rights harms by providing a binding legal standard against which
development policies, processes and outcomes can be assessed
to:
a. determine risk to human rights and whether development
activities are likely to, or in fact, result in harm;
b. ensure that development activities in fact promote human
rights or create the conditions for the realization of human
rights
c. prevent and redress unintended negative impacts on
human rights in development processes and outcomes;
d. better understand the claim that development advances
human rights; and
e. foster a deeper understanding of the relationship between
the two fields.
In concrete terms, the challenge presented by an absence of legally
established normative baselines in development is potentially
answered by human rights law. This might imply the incorporation of the
relevant human rights legal standards in development policies and
instruments, whether they address the level of country strategies or
institutional assessment at a project level, or analyze the likely effects and
distributional impacts of certain interventions or policy reforms on various
groups or stakeholders.
Policy Coherence
CASTILLO | 49
- fosters the sustainability of policies by preventing duplication and
avoiding contradiction through promoting coherence across related
subject matters and assessing the impacts of diverse areas of inter-
national policy on one another.
- highlights complementarities between frameworks designed and
participated in by the same states, including the most widely ratified
international human rights instruments.
- also indispensable to the realization of human rights.
- supports a focus on existing obligations, and applies to the
institutional structures within which states, as traditional duty-
bearers, operate so that the actions of states in various institutional
structures and processes do not undermine human rights
enjoyment.
- may also require that states assess the impact of policies in one
area on other policy areas, including how actions in various fora
impact human rights, requiring that states act with consistency and
at a minimum, ‘do no harm’
- respond to the challenge of policy coherence by providing an
established legal platform around which to organize that coherence
A more unified accountability framework
- accountability for human rights cannot properly be upheld because
human rights obligations are not factored into development policies,
such that states—as donors or clients—can pursue development
activities without any systematic assessments of their
consequences in human rights terms and without there being any
effective legal recourse where those consequences are negative.
- The absence of legal duties in development policy frameworks
undermines the possibility of the key contribution of human rights –
accountability – being upheld in the context of development with
respect to both process and outcome
- Second, while accountability frameworks such as those governing
the Paris Declaration fulfill essential functions, and are not a priori
inconsistent with human rights accountability, their parallel
existence, without any corresponding recognition of human rights
obligations or impacts presents a risk to the latter.
- Third, the accountability propounded through development
frameworks is not equivalent to the legal accountability upheld
through human rights law.
o Rather, it is an accountability centered on principles,
political commitments and policy frameworks rather than
specific, binding legal obligations under public international
law.
Conclusion:
HUMAN RIGHTS 3D | ATTY. TEMPROSA
Recognition of the treaty base of international human rights in the context
of development refocuses attention on the fact that:
(1) human rights are not voluntary or just rhetorical, they are the subject
of legally binding commitments;
(2) human rights may add value and fundamentally change how
development is pursued, what it pursues and what it can achieve;
(3) realizing human rights may be different from undertaking good
development practice – the former is done out of legal obligation, the
latter might not be;
(4) human rights are intrinsically valuable and therefore worth protecting
in development;
(5) human rights can play an instrumental role in fostering sustainable
development through adverting risk and focusing on ways in which
development can support the realization of human rights.
It is submitted that the failure to recognize the legal dimensions of human
rights may indeed be connected with the wider failure to recognize the
distinct value of human rights for development.
DRAFT CONVENTION ON THE RIGHT TO DEVELOPMENT
MAY 2020
The drafting group thus established comprised:
- Mihir Kanade (India) as its Chair and Rapporteur
- Makane Moïse Mbengue (Senegal),
- Koen de Feyter (Belgium),
- Diane Desierto (Philippines) and
- Margarette May Macaulay (Jamaica)
Atty. Temprosa: Recognition that ICESCR is lacking. A utopian vision of
things.
Article 1 – Object and purpose
The object and purpose of the present Convention is to promote and ensure
the full, equal and meaningful enjoyment of the right to development by
every human person and all peoples everywhere, and to guarantee its
effective operationalization and full implementation at the national and
international levels.
Article 2 – Definitions
For the purposes of the present Convention:
(a) “Legal person” means any entity that possesses its own legal
personality under domestic or international law and is not a human person, a
people or a State;
CASTILLO | 50
(b) “International organization” means an organization established by a
treaty or other instrument governed by international law and possessing its
own international legal personality; international organizations may include,
in addition to States, other entities as members;
(c) “Working Group on the Right to Development” means the entity
established by the Commission on Human Rights in its resolution 1998/72 of
22 April 1998, as endorsed by the Economic and Social Council in its
decision 1998/269 of 30 July 1998;
(d) “High-level political forum on sustainable development” means the
entity established pursuant to the outcome document of the United Nations
Conference on Sustainable Development (Rio+20) of 2012, as endorsed by
General Assembly resolution 66/288 of 27 July 2012 and supplemented by
Assembly resolution 67/290 of 9 July 2013.
Article 3 – General principles
To achieve the object and purpose of the present Convention and to
implement its provisions, the Parties shall be guided by, inter alia, the
principles set out below:
(a) Human person and people-centred development: the human person
and people are the central subjects of development and should be the active
participants and beneficiaries of the right to development;
(b) Universal principles common to all human rights: the right to
development should be realized in a manner that integrates the principles of
accountability, empowerment, participation, non-discrimination, equality and
equity;
(c) Human rights-based approach to development: development is a
human right and should be realized as such and in a manner consistent with
and based on all other human rights;
(d) Self-determined development: the right to development and the right to
self- determination are integral to each other and mutually reinforcing;
(e) Sustainable development: development cannot be sustainable if its
realization undermines the right to development, and the right to
development cannot be realized if development is unsustainable;
(f) The right to regulate: the realization of the right to development entails
the right for States Parties, on behalf of their peoples, to take regulatory or
other related measures to achieve sustainable development on their territory;
(g) International solidarity: the realization of the right to development
requires an enabling national and international environment created through
a spirit of unity among individuals, peoples, States and international
organizations, encompassing the union of interests, purposes and actions
and the recognition of different needs and rights to achieve common goals;
this principle includes the duty to cooperate;
(h) Universal duty to respect human rights: everyone has the duty to
respect human rights, including the right to development;
HUMAN RIGHTS 3D | ATTY. TEMPROSA
(i) Right and responsibility of individuals, groups and organs of society
to promote and protect human rights: everyone has the right, individually
and in association with others, to promote and to strive for the protection and
realization of the right to development at the national and international levels;
individuals, groups, institutions and non-governmental organizations also
have an important role and a responsibility in contributing, as appropriate, to
the promotion of the right of everyone to a social and international order in
which the right to development can be fully realized.
Part II
Article 4 – The right to development
1. Every human person and all peoples have the inalienable right to
development by virtue of which they are entitled to participate in, contribute
to and enjoy economic, social, cultural, civil and political development that is
consistent with and based on all other human rights and fundamental
freedoms.
2. Every human person and all peoples have the right to active, free and
meaningful participation in development and in the fair distribution of benefits
resulting therefrom.
Article 5 – Relationship with the right to self-determination
1. The right to development implies the full realization of the right of all
peoples to self- determination.
2. All peoples have the right to self-determination by virtue of which they
freely determine their political status and freely pursue the realization of their
right to development.
3. All peoples may, in pursuing the realization of their right to development,
freely dispose of their natural wealth and resources based upon the principle
of mutual benefit and international law. In no case may a people be deprived
of its own means of subsistence.
4. The States Parties to the present Convention, including those having
responsibility for the administration of Non-Self-Governing Territories, shall
promote the realization of the right to self-determination, and shall respect
that right, in conformity with the provisions of the Charter of the United
Nations.
5. States shall take resolute steps to prevent and eliminate massive and
flagrant violations of the human rights of persons and peoples affected by
situations such as those resulting from apartheid, all forms of racism and
racial discrimination, colonialism, foreign domination and occupation,
aggression, foreign interference and threats against national sovereignty,
national unity and territorial integrity, threats of war and the refusal to
otherwise recognize the fundamental right of peoples to self-determination.
6. Nothing contained in the present Convention shall be construed as
authorizing or encouraging any action which would dismember or impair,
totally or in part, the territorial integrity or political unity of sovereign and
CASTILLO | 51
independent States conducting themselves in compliance with the principle
of equal rights and self-determination of peoples, and thus possessed of a
government representing the whole people belonging to the territory, without
distinction of any kind.
Article 6 – Relationship with other human rights
1. States Parties reaffirm that all human rights, including the right to
development are universal, interrelated, interdependent, indivisible and
equally important.
2. States Parties agree that the right to development is an integral part of
human rights and should be realized in conformity with the full range of civil,
cultural, economic, political and social rights.
Article 7 – Relationship with the general duty of everyone to respect
human rights under international law
Nothing in the present Convention may be interpreted as implying for any
human or legal person, people, group or State any right to engage in any
activity or perform any act aimed at the destruction of any of the rights and
freedoms set forth herein or at their limitation to a greater extent than is
provided for in the Convention. To that end, States Parties agree that all
human and legal persons, peoples, groups and States have the general duty
under international law to refrain from participating in the violation of the right
to development.
Part III
Article 8 – General obligations of States Parties
1. States Parties undertake to respect, protect and fulfil the right to
development for all, without discrimination of any kind on the basis of race,
colour, sex, gender, language, religion, political or other opinion, national,
ethnic or social origin, property, disability, birth, age or other status, in
accordance with obligations set forth in the present Convention.
2. States Parties shall ensure that public authorities and institutions at all
levels act in conformity with the present Convention.
Article 9 – General obligations of international organizations
Without prejudice to the general duty contained in article 7, States Parties
agree that international organizations also have the obligation to refrain from
conduct that aids, assists, directs, controls or coerces, with knowledge of the
circumstances of the act, a State or another international organization to
breach that State’s or that other international organization’s obligations with
regard to the right to development.
Article 10 – Obligation to respect
States Parties undertake to refrain from conduct, whether expressed through
law, policy or practice, that:
HUMAN RIGHTS 3D | ATTY. TEMPROSA
(a) Nullifies or impairs the enjoyment and exercise of the right to
development within or outside their territories;
(b) Impairs the ability of another State or international organization to comply
with that State’s or that international organization’s obligations with regard to
the right to development;
(c) Aids, assists, directs, controls or coerces, with knowledge of the
circumstances of the act, another State or international organization to
breach that State’s or that international organization’s obligations with regard
to the right to development;
(d) Causes an international organization of which it is a member to commit
an act that, if committed by the State Party, would constitute a breach of its
obligation under the present Convention and the State Party does so to
circumvent that obligation by taking advantage of the fact that the
international organization has competence in relation to its subject matter.
Article 11 – Obligation to protect
States Parties shall adopt and enforce all necessary and appropriate
measures, including administrative, legislative, investigative, judicial,
diplomatic or others, to ensure that human or legal persons, groups or any
other State or its agents they are in a position to regulate do not nullify or
impair the enjoyment and exercise of the right to development within or
outside their territories when:
(a) Such conduct originates from or occurs on the territory of the State Party;
(b) The human or legal person has the nationality of the State Party;
(c) The legal person conducting business activities, including those of a
transnational character, is domiciled in the State Party, by virtue of having its
place of incorporation, statutory seat, central administration or substantial
business interests in that State Party.
Article 12 – Obligation to fulfil
1. Each State Party undertakes to take measures, individually and through
international assistance and cooperation, with a view to progressively
enhancing the right to development, without prejudice to their obligations to
respect and protect the right to development contained in articles 10 and 11
or to those obligations contained in the present Convention that are of
immediate effect. States Parties may take such measures through any
appropriate means, including in particular the adoption of legislative
measures.
2. States Parties recognize that each State has the right, on behalf of its
peoples, and also the duty to formulate, adopt and implement appropriate
national development laws, policies and practices in conformity with the right
to development and aimed at its full realization. To that end, States Parties
undertake to refrain from nullifying or impairing, including in matters relating
to cooperation, aid, assistance, trade or investment, the exercise of the right
and discharge of the duty of every State Party to determine its own national
CASTILLO | 52
development priorities and to implement them in a manner consistent with
the provisions of the present Convention.
Article 13 – Duty to cooperate
1. States Parties reaffirm and undertake to implement their duty to cooperate
with each other, through joint and separate action, in order to:
(a) Solve international problems of an economic, social, cultural,
environmental or humanitarian character;
(b) Promote higher standards of living, full employment, and conditions of
economic and social progress and development;
(c) Promote solutions of international economic, social, health and related
problems, and to promote international cultural and educational cooperation;
(d) Promote and encourage universal respect for human rights and
fundamental freedoms for all, without discrimination on any ground.
2. To this end, States Parties recognize their primary responsibility for the
creation of international conditions favourable to the realization of the right to
development for all, and undertake to take deliberate, concrete and targeted
steps, separately and jointly, including through cooperation within
international organizations, and as appropriate, in partnership with civil
society:
(a) To ensure that human and legal persons, groups and States do not
impair the enjoyment of the right to development;
(b) To ensure that obstacles to the full realization of the right to development
are eliminated in all international legal instruments, policies and practices;
(c) To ensure that the formulation, adoption and implementation of all
international legal instruments, policies and practices are consistent with the
objective of fully realizing the right to development for all;
(d) To formulate, adopt and implement appropriate international legal
instruments, policies and practices aimed at the progressive enhancement
and full realization of the right to development for all;
(e) To mobilize appropriate technical, technological, financial, infrastructural
and other necessary resources to enable States Parties, particularly those
with limited availability of or access to these resources, to fulfil their
obligations under the present Convention.
3. States Parties undertake to ensure that financing for development, and all
other forms of aid and assistance given or received by them, whether
bilateral, or under any institutional or other international framework, are
consistent with the provisions of the present Convention.
4. States Parties recognize their duty to cooperate to create a social and
international order conducive to the realization of the right to development
by, inter alia:
HUMAN RIGHTS 3D | ATTY. TEMPROSA
(a) Promoting a universal, rules-based, open, non-discriminatory and
equitable multilateral trading system;
(b) Implementing the principle of special and differential treatment for
developing countries, in particular least developed countries, in accordance
with relevant trade agreements;
(c) Improving the regulation and monitoring of global financial markets and
institutions, and strengthening the implementation of such regulations;
(d) Ensuring enhanced representation and voice for developing countries in
decision-making in global international economic and financial institutions in
order to deliver more effective, credible, accountable and legitimate
institutions;
(e) Encouraging official development assistance and financial flows,
including foreign direct investment, to States where the need is greatest, in
particular least developed countries, African countries, small island
developing States and landlocked developing countries, in accordance with
their national plans and programmes;
(f) Enhancing North-South, South-South and triangular regional and
international cooperation on and access to science, technology and
innovation, and enhancing also knowledge-sharing on mutually agreed
terms, including through improved coordination among existing mechanisms,
in particular at the United Nations level, and through a global technology
facilitation mechanism;
(g) Promoting the development, transfer, dissemination and diffusion of
environmentally sound technologies to developing countries on favourable
terms, including on concessional and preferential terms, as mutually agreed;
(h) Facilitating orderly, safe, regular and responsible migration and mobility
of people, including through the implementation of planned and well-
managed rights-based migration policies.
Article 14 – Coercive measures
1. The use or encouragement of the use of economic, political or any other
type of measure to coerce a State in order to obtain from it the subordination
of the exercise of its sovereign rights in violation of the principles of the
sovereign equality of States and freedom of consent constitutes a violation of
the right to development.
2. States Parties shall refrain from adopting, maintaining or implementing the
measures referred to in paragraph 1.
Article 15 – Special or remedial measures
1. States Parties recognize that certain human persons, groups and peoples,
owing to their age, disability, marginalization, vulnerability, indigeneity or
minority status, may require special or remedial measures to accelerate or
achieve de facto equality in their enjoyment of the right to development.
2. States Parties recognize that developing and vulnerable States, owing to
historical injustices, conflicts, environmental hazards, climate change or
CASTILLO | 53
other disadvantages, including of an economic, technical or infrastructural
nature, may require special or remedial measures through mutually agreed
international legal instruments, policies and practices for ensuring equal
enjoyment of the right to development by all human persons and peoples.
Such measures may, as appropriate, include:
(a) Recognition of common but differentiated responsibilities, taking into
account different national circumstances;
(b) The provision of special and differential treatment;
(c) Preferential terms on trade, investment and finance;
(d) The creation of special funds or facilitation mechanisms;
(e) The facilitation and mobilization of financial, technical, technological,
infrastructural, capacity-building or other assistance;
(f) Other mutually agreed measures consistent with the provisions of the
present Convention.
Article 16 – Gender equality
1. States Parties, in accordance with their obligations under international
law, shall ensure full gender equality for all women and men, and undertake
to take measures, including through temporary special measures as and
when appropriate, to end all forms of discrimination against all women and
girls everywhere so as to ensure their full and equal enjoyment of the right to
development.
2. To that end, States Parties undertake to take appropriate measures,
separately and jointly, inter alia:
(a) To eliminate all forms of violence and harmful practices against all
women and girls in the public and private spheres;
(b) To ensure women’s full and effective participation and equal
opportunities for leadership at all levels in the conceptualization, decision-
making, implementation, monitoring and evaluation of policies and
programmes in political, economic and public life, and within legal persons;
(c) To adopt and strengthen policies and enforceable legislation for the
promotion of gender equality and the empowerment of all women and girls at
all levels;
(d) To mainstream gender perspectives in the formulation, adoption and
implementation of all national laws, policies and practices and international
legal instruments, policies and practices;
(e) To ensure equal and equitable access to resources necessary for the full
realization of the right to development by women and girls everywhere.
Article 17 – Indigenous and tribal peoples
1. Indigenous and tribal peoples have the right to freely pursue their
economic, social and cultural development. They have the right to determine
and develop priorities and strategies for exercising their right to
development.
HUMAN RIGHTS 3D | ATTY. TEMPROSA
2. States Parties shall consult and cooperate in good faith with the
indigenous and tribal peoples concerned through their own representative
institutions in order to obtain their free, prior and informed consent before
adopting and implementing legislative or administrative measures that may
affect them.
Article 18 – Prohibition of limitations on the enjoyment of the right to
development
States Parties recognize that the enjoyment of the right to development may
not be subject to any limitations except insofar as they may result directly
from the exercise of limitations on other human rights applied in accordance
with international law.
Article 19 – Impact assessments
1. States Parties undertake to take appropriate steps, individually and jointly,
including within international organizations, to establish legal frameworks for
conducting prior and ongoing assessment of actual and potential risks and
impact of their national laws, policies and practices and international legal
instruments, policies and practices, and of the conduct of legal persons
which they are in a position to regulate to ensure compliance with the
provisions of the present Convention.
2. States Parties shall take into account any further guidelines, best
practices or recommendations that the Conference of States Parties may
provide with respect to impact assessments.
Article 20 – Statistics and data collection
1. States Parties undertake to collect appropriate information, including
statistical and research data, to enable them to formulate and implement
policies to give effect to the present Convention. The process of collecting
and maintaining this information shall:
(a) Comply with legally established safeguards, including legislation on data
protection, to ensure confidentiality and respect for privacy;
(b) Comply with internationally accepted norms to protect human rights and
fundamental freedoms and ethical principles in the collection and use of
statistics.
2. The information collected in accordance with the present article shall be
disaggregated, as appropriate, and used to help to assess the
implementation of States Parties’ obligations under the present Convention
and to identify and address the obstacles to the full realization of the right to
development.
3. States Parties shall assume responsibility for the dissemination of these
statistics in a manner consistent with the objective of fully realizing the right
to development for all.
Article 21 – International peace and security
CASTILLO | 54
1. States Parties reaffirm their existing obligations under international law to
promote the establishment, maintenance and strengthening of international
peace and security in consonance with the principles and obligations
contained in the Charter of the United Nations, including the peaceful
settlement of disputes.
2. To that end, States Parties undertake to pursue collective measures with
the objective of achieving general and complete disarmament under strict
and effective international control so that the world’s human, ecological and
economic resources can be used for the full realization of the right to
development for all.
Article 22 – Sustainable development
States Parties, individually and jointly, undertake to ensure that:
(a) Laws, policies and practices relating to development at the national and
international levels pursue and contribute to the realization of sustainable
development;
(b) Their decisions and actions do not compromise the ability of future
generations to realize their right to development;
(c) The formulation, adoption and implementation of all such laws, policies
and practices aimed at realizing sustainable development are made fully
consistent with the provisions of the present Convention.
Article 23 – Harmonious interpretation
1. Nothing in the present Convention shall be interpreted as impairing the
provisions of the Charter of the United Nations and of the constitutions of the
specialized agencies which define the respective responsibilities of the
various organs of the United Nations and of the specialized agencies in
regard to the matters dealt with in the present Convention. To that end, the
United Nations and its specialized agencies are under an obligation to
promote the right to development.
2. The provisions of the present Convention shall not affect the rights and
obligations of any State Party deriving from any existing international
agreements, except where the exercise of those rights and obligations would
contravene the object and purpose of this Convention. The present
paragraph is not intended to create a hierarchy between the present
Convention and other international agreements.
Part IV – Conference of States Parties;
Part V – Signature, etc.
GENERAL COMMENT NO. 14: RIGHT TO THE HIGHEST ATTAINABLE
STANDARD OF HEALTH (Art. 12)
Recognized in numerous international instruments:
HUMAN RIGHTS 3D | ATTY. TEMPROSA
Art. 25.1 of UDHR “Everyone has the right to a standard of living
adequate for the health of himself and of his
family, including food, clothing, housing and
medical care and necessary social services”
Art. 12.1 of ICESCR the right of everyone to the enjoyment of the
highest attainable standard of physical and
mental health
Art. 12.2 of ICESCR steps to be taken by the States parties ... to
achieve the full realization of this right
Art. 5(e)(iv) of (iv) The right to public health, medical care,
International Convention social security and social services;
on the Elimination of All
Forms of Racial Discrim.
Art. 11.1(f) and 12 of 1. States Parties shall take all appropriate
convention on the measures to eliminate discrimination against
Elimination of All Forms women in the field of health care in order to
of Discrim. against ensure, on a basis of equality of men and
Women women, access to health care services,
including those related to family planning.
2. Notwithstanding the provisions of
paragraph I of this article, States Parties shall
ensure to women appropriate services in
connection with pregnancy, confinement and
the post-natal period, granting free services
where necessary, as well as adequate
nutrition during pregnancy and lactation.
Art. 24 of CRC States Parties recognize the right of the child
to the enjoyment of the highest attainable
standard of health and to facilities for the
treatment of illness and rehabilitation of
health. States Parties shall strive to ensure
that no child is deprived of his or her right of
access to such health care services.
The right to health is closely related to and dependent upon the
realization of other human rights, as contained in the International Bill of
Rights, including the rights to food, housing, work, education, human dignity,
life, non-discrimination, equality, the prohibition against torture, privacy,
access to information, and the freedoms of association, assembly and
movement.
- Did not adopt the definition of health in the preamble to the
Constitution of WHO (health as “a state of complete physical,
CASTILLO | 55
mental and social well-being and not merely the absence of disease
or infirmity”)
- Not confined to healthcare; but embraces a wide range of socio-
economic factors that promote conditions in which people can lead
a healthy life, and extends to the underlying determinants of health,
such as food and nutrition, housing, access to safe and potable
water and adequate sanitation, safe and healthy working
conditions, and a healthy environment.
1. Normative Content of Art. 12
Article 12
1. The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of the highest attainable standard of physical
and mental health.
2. The 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:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality
and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational
and other diseases;
(d) The creation of conditions which would assure to all medical service and
medical attention in the event of sickness.
- Not to be understood as a right to be healthy
- Contains both freedoms and entitlements
Freedoms Entitlements
Right to control one’s health and right to a system of health
body, including sexual and protection which provides equality
reproductive freedom, and the right of opportunity for people to enjoy
to be free from interference, such the highest attainable level of
as the right to be free from torture, health.
non-consensual medical treatment
and experimentation.
“the highest attainable standard of health”
- into account both the individual’s biological and socio-economic
preconditions and a State’s available resources
- genetic factors, individual susceptibility to ill health and the adoption
of unhealthy or risky lifestyles may play an important role with
respect to an individual’s health.
Many more developments
- More determinants of health
- Wider definition of health
HUMAN RIGHTS 3D | ATTY. TEMPROSA
- Formerly unknown diseases (i.e. HIV/AIDS) – become more
widespread
Right to health
- inclusive right extending not only to timely and appropriate health
care but also to the underlying determinants of health, such as
access to safe and potable water and adequate sanitation, an
adequate supply of safe food, nutrition and housing, healthy
occupational and environmental conditions, and access to health-
related education and information, including on sexual and
reproductive health.
MIDTERM ALERT!
Elements of Right to health:
a. Availability - available in sufficient quantity within the State party
b. Accessibility - to be accessible to everyone without discrimination,
within the jurisdiction of the State party; four overlapping
dimensions:
i. Non-discrimination- especially the most vulnerable or
marginalized sections of the population, in law and in fact,
without discrimination on any of the prohibited grounds
ii. Physical accessibility- must be within safe physical reach
for all sections of the population; Accessibility further
includes adequate access to buildings for persons with
disabilities;
iii. Economic accessibility (affordability) – must be affordable
for all; has to be based on the principle of equity, ensuring
that these services, whether privately or publicly provided,
are affordable for all, including socially disadvantaged
groups
iv. Information accessibility – right to seek, receive and impart
information and ideas concerning health issues; not
treated as to impair the right to have personal health data
treated with confidentiality
c. Acceptability – must be respectful of medical ethics and culturally
appropriate, i.e. respectful of the culture of individuals, minorities,
peoples and communities, sensitive to gender and life-cycle
requirements, as well as being designed to respect confidentiality
and improve the health status
d. Quality – scientifically and medically appropriate and of good
quality; skilled medical personnel, scientifically approved and
unexpired drugs and hospital equipment, safe and potable water,
and adequate sanitation.
CASTILLO | 56
Article 12.2(a): The right to maternal, child and reproductive health
understood as requiring measures to improve child and maternal health,
sexual and reproductive health services, including access to family planning,
pre- and post-natal care, emergency obstetric services and access to
information, as well as to resources necessary to act on that information
Article 12.2(b): The right healthy natural and workplace environments
comprises, inter alia, preventive measures in respect of occupational
accidents and diseases; the requirement to ensure an adequate supply of
safe and potable water and basic sanitation; the prevention and reduction of
the population’s exposure to harmful substances such as radiation and
harmful chemicals or other detrimental environmental conditions that directly
or indirectly impact upon human health.
Article 12.2(c): The right to prevention, treatment and control of
diseases
requires the establishment of prevention and education programs for
behavior-related health concerns such as sexually transmitted diseases, in
particular HIV/AIDS, and those adversely affecting sexual and reproductive
health, and the promotion of social determinants of good health, such as
environmental safety, education, economic development and gender equity;
includes the creation of a system of urgent medical care in cases of
accidents, epidemics and similar health hazards, and the provision of
disaster relief and humanitarian assistance in emergency situations
- Control of diseases – refers to States’ individual and joint efforts
to, inter alia, make available relevant technologies, using and
improving epidemiological surveillance and data collection on a
disaggregated basis, the implementation or enhancement of
immunization programs and other strategies of infectious disease
control
Article 12.2(d): The right to health facilities, goods and services
includes the provision of equal and timely access to basic preventive,
curative, rehabilitative health services and health education; regular
screening programs; appropriate treatment of prevalent diseases, illnesses,
injuries and disabilities, preferably at community level; the provision of
essential drugs; and appropriate mental health treatment and care.
Article 12: Special Topics of Broad Application
Non-discrimination and equal treatment
- Covenant proscribes any discrimination in access to health care
and underlying determinants of health, as well as to means and
entitlements for their procurement, on the grounds of race, colour,
sex, language, religion, political or other opinion, national or social
origin, property, birth, physical or mental disability, health status
HUMAN RIGHTS 3D | ATTY. TEMPROSA
(including HIV/AIDS), sexual orientation and civil, political, social or
other status, which has the intention or effect of nullifying or
impairing the equal enjoyment or exercise of the right to health.
- equality of access to health care and health services has to be
emphasized
- special obligation to provide those who do not have sufficient
means with the necessary health insurance and health-care
facilities, and to prevent any discrimination on internationally
prohibited grounds in the provision of health care and health
services, especially with respect to the core obligations of the right
to health
Gender Perspective
- integrate a gender perspective in their health-related policies,
planning, programs and research in order to promote better health
for both women and men
Women and the right to health
- include interventions aimed at the prevention and treatment of
diseases affecting women, as well as policies to provide access to
a full range of high quality and affordable health care, including
sexual and reproductive services
- requires the removal of all barriers interfering with access to health
services, education and information, including in the area of sexual
and reproductive health.
- undertake preventive, promotive and remedial action to shield
women from the impact of harmful traditional cultural practices and
norms that deny them their full reproductive rights.
Children and adolescents
- ensuring access to child-friendly information about preventive and
health-promoting behaviour and support to families and
communities in implementing these practices
- requires that girls, as well as boys, have equal access to adequate
nutrition, safe environments, and physical as well as mental health
services
- provide a safe and supportive environment for adolescents, that
ensures the opportunity to participate in decisions affecting their
health, to build life skills, to acquire appropriate information, to
receive counselling and to negotiate the health-behaviour choices
they make
Older Persons
- reaffirms the importance of an integrated approach, combining
elements of preventive, curative and rehabilitative health treatment;
CASTILLO | 57
based on periodical check-ups for both sexes; physical as well as
psychological rehabilitative measures aimed at maintaining the
functionality and autonomy of older persons; and attention and care
for chronically and terminally ill persons, sparing them avoidable
pain and enabling them to die with dignity
PWD
need to ensure that not only the public health sector but also private
providers of health services and facilities comply with the principle of non-
discrimination
Indigenous Peoples
- should be culturally appropriate, taking into account traditional
preventive care, healing practices and medicines
- provide resources for indigenous peoples to design, deliver and
control such services so that they may enjoy the highest attainable
standard of physical and mental health.
Limitations
The States Parties to the present Covenant recognize that, in the enjoyment
of those rights provided by the State in conformity with the present
Covenant, the State may subject such rights only to such limitations as are
determined by law only in so far as this may be compatible with the nature of
these rights and solely for the purpose of promoting the general welfare in a
democratic society.
- Covenant’s limitation clause, article 4, is primarily intended to
protect the rights of individuals rather than to permit the imposition
of limitations by States
- Such restrictions must be in accordance with the law, including
international human rights standards, compatible with the nature of
the rights protected by the Covenant, in the interest of legitimate
aims pursued, and strictly necessary for the promotion of the
general welfare in a democratic society.
- must be proportional, i.e. the least restrictive alternative must be
adopted where several types of limitations are available; should be
of limited duration and subject to review
2. States parties’ obligations
General Legal obligations
- Which are of immediate effect
o Immediate obligations such as right will be exercised
without discrimination of any kind and to take steps
towards the full realization
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 58

o Must be deliberate, concrete, and targeted towards the full medicines, from standards of counselling and
realization marketing unsafe education, skill and mental health
o progressive realization means that States parties have a drugs and from ethical codes of services, with due
specific and continuing obligation to move as expeditiously applying coercive conduct. regard to equitable
and effectively as possible towards the full realization of medical treatments, distribution throughout
article 12 unless on an to ensure that harmful the country.
Right to health, like all human rights, imposes three types or levels of exceptional basis for social or traditional
obligations on States parties: the obligations to respect, protect and fulfil the treatment of practices do not
To respect requires States to refrain from interfering directly or mental illness or the interfere with access
indirectly with the enjoyment of the right to health prevention and control to pre- and post-natal
To protect requires States to take measures that prevent third of communicable care and family
parties from interfering with article 12 guarantees diseases. planning; to prevent
To fulfil requires States to adopt appropriate legislative, third parties from
administrative, budgetary, judicial, promotional and refrain from limiting coercing women to
other measures towards the full realization of the access to undergo traditional
right to health. contraceptives and practices, e.g. female
other means of genital mutilation; and
Specific legal obligations maintaining sexual to take measures to
To Respect To protect To fulfill and reproductive protect all vulnerable
refraining from To adopt legislation or to give sufficient health, from or marginalized
denying or limiting to take other recognition to the right censoring, withholding groups of society, in
equal access for all measures ensuring to health in the or intentionally particular women,
persons, including equal access to health national political and misrepresenting children, adolescents
prisoners or care and health- legal systems, health-related and older persons, in
detainees, minorities, related services preferably by way of information, including the light of gender-
asylum-seekers and provided by third legislative sexual education and based expressions of
illegal immigrants, to parties; to ensure that implementation, and to information, as well as violence. States
preventive, curative privatization of the adopt a national health from preventing should also ensure
and palliative health health sector does not policy with a detailed people’s participation that third parties do
services; abstaining constitute a threat to plan for realizing the in health-related not limit people’s
from enforcing the availability, right to health matters. access to health-
discriminatory accessibility, related information
practices as a State acceptability and to ensure the and services.
policy; and abstaining quality of health appropriate training of
from imposing facilities, goods and doctors and other OBLIGATION TO FULFILL
discriminatory services; to control the medical personnel, the Facilitate requires States inter alia to take positive measures that
practices relating to marketing of medical provision of a enable and assist individuals and communities to enjoy
women’s health status equipment and sufficient number of the right to health
and needs. medicines by third hospitals, clinics and Provide specific right contained in the Covenant when
parties; and to ensure other health-related individuals or a group are unable, for reasons beyond
refrain from prohibiting that medical facilities, and the their control, to realize that right themselves by the
or impeding traditional practitioners and other promotion and support means at their disposal
preventive care, health professionals of the establishment of
healing practices and meet appropriate institutions providing
HUMAN RIGHTS 3D | ATTY. TEMPROSA
Promote right to health requires States to undertake actions that
create, maintain and restore the health of the
population, include:
i) fostering recognition of factors favouring
positive health results, e.g. research and
provision of information;
ii) ensuring that health services are culturally
appropriate and that health-care staff are
trained to recognize and respond to the
specific needs of vulnerable or
marginalized groups;
iii) ensuring that the State meets its
obligations in the dissemination of
appropriate information relating to healthy
lifestyles and nutrition, harmful traditional
practices and the availability of services;
iv) supporting people in making informed
choices about their health.
International Obligations
- recognize the essential role of international cooperation and comply
with their commitment to take joint and separate action to achieve
the full realization of the right to health
- Alma-Ata Declaration which proclaims that the existing gross
inequality in the health status of the people, particularly between
developed and developing countries, as well as within countries, is
politically, socially and economically unacceptable and is, therefore,
of common concern to all countries.
- to respect the enjoyment of the right to health in other countries,
and to prevent third parties from violating the right in other
countries, if they are able to influence these third parties by way of
legal or political means, in accordance with the Charter of the
United Nations and applicable international law.
- States parties should ensure that the right to health is given due
attention in international agreements and, to that end, should
consider the development of further legal instruments.
- States parties which are members of international financial
institutions, notably the International Monetary Fund, the World
Bank, and regional development banks, should pay greater
attention to the protection of the right to health in influencing the
lending policies, credit agreements and international measures of
these institutions.
- Joint and individual responsibility Each State should contribute
to this task to the maximum of its capacities. States parties should
refrain at all times from imposing embargoes or similar measures
CASTILLO | 59
restricting the supply of another State with adequate medicines and
medical equipment.
Core Obligations
- ensure the satisfaction of, at the very least, minimum essential
levels of each of the rights enunciated in the Covenant, including
essential primary health care
These include:
a. To ensure the right of access to health facilities, goods and services
on a non-discriminatory basis, especially for vulnerable or
marginalized groups;
b. To ensure access to the minimum essential food which is
nutritionally adequate and safe, to ensure freedom from hunger to
everyone;
c. To ensure access to basic shelter, housing and sanitation, and an
adequate supply of safe and potable water;
d. To provide essential drugs, as from time to time defined under the
WHO Action Programme on Essential Drugs;
e. To ensure equitable distribution of all health facilities, goods and
services;
f. To adopt and implement a national public health strategy and plan
of action, on the basis of epidemiological evidence, addressing the
health concerns of the whole population; the strategy and plan of
action shall be devised, and periodically reviewed, on the basis of a
participatory and transparent process; they shall include methods,
such as right to health indicators and benchmarks, by which
progress can be closely monitored; the process by which the
strategy and plan of action are devised, as well as their content,
shall give particular attention to all vulnerable or marginalized
groups.
Also of comparable priority:
a. To ensure reproductive, maternal (prenatal as well as post-natal)
and child health care;
b. To provide immunization against the major infectious diseases
occurring in the community;
c. To take measures to prevent, treat and control epidemic and
endemic diseases;
d. To provide education and access to information concerning the
main health problems in the community, including methods of
preventing and controlling them;
e. To provide appropriate training for health personnel, including
education on health and human rights.
emphasize that it is particularly incumbent on States parties and other actors
in a position to assist, to provide “international assistance and
cooperation, especially economic and technical”
HUMAN RIGHTS 3D | ATTY. TEMPROSA
3. Violations
- Important to distinguish the inability from the unwillingness of a
State party to comply with its obligations under article 12
- A State which is unwilling to use the maximum of its available
resources for the realization of the right to health is in violation of its
obligations under article 12…
o If resource constraints render it impossible for a State to
comply fully with its Covenant obligations, it has the
burden of justifying that every effort has nevertheless been
made to use all available resources at its disposal in order
to satisfy, as a matter of priority
- can occur through the direct action of States or other entities
insufficiently regulated by States
Acts of commission Acts of omission
include the formal repeal or include the failure to take
suspension of legislation necessary appropriate steps towards the full
for the continued enjoyment of the realization of everyone’s right to the
right to health or the adoption of enjoyment of the highest attainable
legislation or policies which are standard of physical and mental
manifestly incompatible with pre- health, the failure to have a
existing domestic or international national policy on occupational
legal obligations in relation to the safety and health as well as
right to health. occupational health services, and
the failure to enforce relevant laws.
Violations
Of the obligation to those State actions, policies or laws that
respect contravene the standards set out in article 12 of
the Covenant and are likely to result in bodily
harm, unnecessary morbidity and preventable
mortality. Examples: denial of health services,
deliberate withholding or misrepresentation of
information vital to health, suspension of
legislation or the adoption of laws or policies
Of the obligation to from the failure of a State to take all necessary
protect measures to safeguard persons within their
jurisdiction from infringements of the right to health
by third parties. Includes: omissions as failure to
regulate the activities, failure to protect consumers,
failure to discourage production of tobacco,
narcotics, failure to protect women against
violence
CASTILLO | 60
Of the obligation to occur through the failure of States parties to take
fulfil all necessary steps to ensure the realization of the
right to health. Examples: failure to adopt or
implement a national health policy, insufficient
expenditure or misallocation of public resources
4. Implementation at the national level
Framework legislation
- Margin of discretion
- adoption of a national strategy to ensure to all the enjoyment of the
right to health, based on human rights principles which define the
objectives of that strategy, and the formulation of policies and
corresponding right to health indicators and benchmarks
- Identify resources to attain defined objectives
- Should respect principles of non-discrimination and people’s
participation
- national health strategy and plan of action should also be based on
the principles of accountability, transparency and independence of
the judiciary, since good governance is essential to the effective
implementation of all human rights, including the realization of the
right to health
- to operationalize their right to health national strategy
o establish national mechanisms for monitoring the
implementation of national health strategies and plans of
action
o provisions on the targets to be achieved and time frame
o means to achieve
o intended collaboration with civil society
Right to health indicators and benchmarks
once approariate
Indicators indicators are Benchmarks
identified
Indicators – designed to monitor, at the national and international levels, the
State party’s obligations under art. 12
- guidance from ongoing work of WHO and UNICEF
Scoping - involves the joint consideration by the State party and the
Committee of the indicators and national benchmarks which will then provide
the targets to be achieved during the next reporting period
Benchmarks – to monitor its implementation of art. 12
HUMAN RIGHTS 3D | ATTY. TEMPROSA
Remedies and accountability
- access to effective judicial or other appropriate remedies at both
national and international levels
- entitled to adequate reparation – restitution, compensation,
satisfaction, or guarantees of non-repetition
- Incorporation enables courts to adjudicate violations of the right to
health, or at least its core obligations, by direct reference to the
Covenant.
5. Obligations of actors other than States parties
- Role of UN agencies and programmes
o Key function assigned to WHO, function of UNICEF
o Should avail themselves of technical assistance and
cooperation of WHO
o utilize the extensive information and advisory services of
WHO with regard to data collection, disaggregation, and
the development of right to health indicators and
benchmarks.
- Various components of civil society
o WHO, ILO, UNDP, UNICED, UN Population Fund, WB,
regional development banks, IMF, WTO – should
cooperate effectively with States parties
- International financial institutions (WB & IMF) - should pay greater
attention to the protection of the right to health in their lending
policies, credit agreements and structural adjustment programmes
- RELEVANCE: particular importance in relation to disaster relief and
humanitarian assistance in times of emergencies, including
assistance to refugees and internally displaced persons.
COVID-19 AND HUMAN RIGHTS: PAST, PRESENT, AND FUTURE
SARAH JOSEPH
Small sample of rights that are harmed:
- domestic violence victims forced to isolate with abusive partners;
- those of prisoners and other detained persons who cannot maintain
social distancing;
- the right to freedom from discrimination and hate speech for people
of Chinese origin (who have been wrongly stigmatised in the crisis);
- the right to privacy of a person who has tested positive who is being
tracked by an mobile phone app;
- rights regarding political participation during the suspension of
legislative government; and
- the right to education of a child whose school is closed and who
lacks adequate learning resources at home
Two Covenants used in the article: ICCPR & ICESCR
CASTILLO | 61
Part A: The Past – Coverup in China
- Warned WHO about 44 patients with pneumonia on December 31;
suppressed information relating to the virus
o Dr. Li Wenliang – cautioned by police for sharing
information about the virus on a Chinese social media
- Freedom of expression – Art. 19(2) of ICCPR
o China is not a party to the ICCPR
- Limitations to freedom of expression – Art. 19(3)
o Preservation of public order - Chinese government
routinely suppresses far more information than is
reasonably necessary to control public order: its
restrictions are likely placed in order to suppress dissent
and preserve the totalitarian authority and appearance of
benevolent competence of the ruling Communist party
- Suppression of bad new – caused crucial delays
o Retarded the development of an understanding of the
magnitude of its dangers and hampered the adoption of
appropriate measures
Part B(a): The Present – Overwhelmed hospitals and triage
- Italy for example – closing thousands of deaths
o States wanted to avoid becoming “the next Italy”
- Exhausted medical staff become disproportionately infected, with a
large number dying, prejudicing their right to life
- Many States were not equipped to deal with this pandemic
o With ICU beds or PPEs for staff
o Committee on ESCR: weakened by decades of
underinvestment in public health services
- Signals a need for States to boost their public health spending in
order to comply with their positive human rights obligation regarding
the right to health
- No State has unlimited health resources – “maximum available
resources”
- If rationing must occur, on what basis are doctors to make the
choice as to who receives and who does not receive
treatment? Reports have indicated that older patients are being
refused certain treatment in favour of younger patients in some
States
- Soobramoney v Minister of Health: basis of denial was “reasonable
and rational”
o In COVID-19, denial of ICU bed or ventilator – human
rights-compliant basis for allocation. May be reasonable
for age to be one factor upon which resources are
allocated
HUMAN RIGHTS 3D | ATTY. TEMPROSA
o In Soobramoney: rationing of access to life-prolonging
resources is regarded as integral to, rather than
incompatible with, a human rights approach to health care.
- BUT it does not itself justify governmental decisions regarding the
OVERALL availability of the relevant resources – both before and
during the crisis
o more rigorous investigation of the reasonableness of a
health rationing decision would take into account not only
the basis of the triaging choices, but also the overall
reasonableness of the budget allocated for the rationed
good or service
Part B(b): The Present – Fortresses, Shutdowns, Quarantines, and
Timely Testing
- Borders have been closed – to stop or slow the spread of virus
- Social distancing – mandated – people must keep a certain
distance away from each other
- All of these measures entail extraordinary restrictions on numerous
human rights, including the freedoms of association, assembly,
movement and from arbitrary detention
- Millions have been deprived of their livelihoods, threatening rights
to work and to an adequate standard of living.
o The lockdowns are retrogressive measures, but they might
be justified in order to promote public health in a pandemic
- While the promotion of public health is a legitimate purpose for
limiting human rights, restrictive measures must nevertheless be
proportionate.
- A general requirement for limitations to ICCPR rights is that
they be provided or prescribed by law, which means that restrictive
measures must be established in an accessible and circumscribed
law
o Principle of legality
o BUT now, muddied by confusing and contradictory
statements by the government and inconsistent
enforcement by police
o Target going out than social interaction
§ Thus: DISPROPORTIONATE in criminalizing
ordinary behavior – e.g. sitting on a park bench
alone (which does not spread the virus)
- Respect for and enjoyment of human rights are ends in themselves,
rather than means to ends.
o complete opening up of societies so as to let the virus “rip”
through the population, which would likely cause tens to
hundreds of thousands of deaths, would breach the right
to life.
CASTILLO | 62
- restrictions must be calibrated so as to “flatten the curve” of
infection, or keep that curve flat, and avoid a swamped hospital
system
Part C: The Future – A vaccine, guinea pigs, and prioritization
A question arises over the rights of the “guinea pigs” who are tested.
Untested medicines can cause terrible side effects, again threatening rights
to life and health.
- Must give their informed consent
- Ethical procedures and safety measures must be followed
New human rights issues will arise if and when a vaccine is available. On
what basis will people be prioritised to receive it? After all, the vaccine could
be a ticket to restoration of civil liberties and economic freedoms, as well as
protection against a life threatening disease.
- Those states with the most efficient and wealthy healthy systems –
most likely will be prioritized – can manufacture the vaccine and
can manage mass vaccination
The vaccine could be developed and/or manufactured in whole or in part by
the private sector. Drug companies, as private actors, do not have direct
human rights obligations under international human rights law, but States
have obligations to ensure that the private sector complies with human rights
Part D: Conclusion
Firstly, a greater degree of freedom of expression and freedom of
information in China at the dawn of the crisis in “the past” may have
prevented its snowballing within China and across the world.
Secondly, in the “present” stage of the crisis, States are navigating
different ways of containing the virus: numerous human rights are
being restricted including rights regarding assembly, association,
detention, movement, employment, and of access to scarce health
resources
- Many may be justified in compliance with human rights –
THOUGH calibration will be needed
Finally, the “future” development of a vaccine will usher in new
human rights conundrums, including questions regarding the rights of
those upon whom candidate vaccines are tested, and the rights of
everyone to access what could be the most anticipated medical
innovation in history.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 63

ADVISORY 1: HUMAN RIGHTS IN THE TIME OF COVID-19 - Response must continue to incorporate elements of disaster
COMMISSION ON HUMAN RIGHTS, 2020 response
- Human rights standards should be mainstreamed at all stages of
Actions restricting the movement of people are valid restrictions in this health programming
time of public health emergency. o Participation, accountability, non-discrimination,
- BUT obligation of government in undertaking measures – MUST transparency, equality, rule of law
be: Right-holder Duty-bearers
o Lawful Everyone BUT: Government
o Necessary Must also recognize inter-related - Policy makers
o Proportionate human rights standards and - Local chief executives
Ensure that all are enabled to enjoy their human rights identification of groups suffering - Hospital managers
Disadvantaged, marginalized, and vulnerable sectors – must be given due from a greater denial of rights - Health professionals
consideration - Inspectors
Appeal to: - Legislators
- Harmonize actions to provide accessible, accurate, and clear - Reiteration of elements of right to health: availability, accessibility,
information on all health-related matters and about restrictions on acceptability, and quality
the freedom of movement
Recommendations
On the Right to the Highest Attainable Standard of Physical and Mental Availability - Ensure that kits are available, preferably free
Health of charge for all
Ensuring the People’s Right to Health as State Responsibility and Obligation - PPEs are currently insufficient – supplies
- WHO: right to health for all people means that everyone should must be prioritized for front liners.
have access to the health services they need, when and where they Government must coordinate with private
need them, without suffering financial hardship. sector for the production and procurement of
- Art. 2, Sec 14 of PH Const.: State to protect and promote the right PPEs.
to health of the people and instill health consciousness among them - To make water available for all at all times,
- Art 12 of ICESCR: right of everyone to the enjoyment of the highest for hygiene
attainable standard of physical and mental health - Emergency and critical care triage capacities
o May be pursued through numerous, complementary be augmented as a special measure
approaches, such as: formulation of health policies, - Front liner be given full financial aid
implementation of health programs, adoption of specific Accessibility - Access should not be impeded; government
legal instruments must ensure on its own or in coordination
o Embraces a wide range of socio-economic factors – with the private sector that those who have
promote conditions in which people can lead a healthy life, fallen ill, under investigation, and under
and extends to underlying determinants of health (food, monitoring – provided access to medical
housing, access to safe and potable water, adequate services
sanitation) - To make safe and clean water facilities
- PH has core obligations, which are: physically accessible throughout the country
a. Access to health facilities, goods and services on a non- - Food and other essential goods should be
discriminatory basis given unimpeded access through
b. Provision of essential drugs checkpoints and delivery be exempted
c. Equitable distribution of all health facilities - Transparent and accountable scheme of
d. Adoption and implementation of a national public health prioritization be implemented for testing and
strategy and plan of action treatment
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 64

- Access to information
- Fighting fake news and false information with
proper information through campaigns that
debunk myths
- Translations into dialects, dissemination via
traditional media and local information
dissemination targeting
- Feedback channels must be established and
enabled
Acceptability - Health interventions be tailored as widely as
possible for people to accept them, and in
certain occasions, specific enough for
targeted groups
- Inter-agency cooperation to safeguard
privacy of the person
Quality - Calls on Congress to allot adequate
resources for the health sector to ensure
quality health care, with all appropriate
measures in line
o Ratio: resource constraints hamper
the provision of quality health care