Human Rights Law

Margin of appreciation.

● Read on Republic v Sandiganbayan, G.R. No. 104768.

● Minority in Albania Case:
○ Equality should be equality in fact.
○ There is no equality if one group is deprived of its rights.

June 14 Meeting Notes:

● Human Rights:
○ Entitlements.
○ Invoke against the State. Individual vs the State.

● History of Human Rights Law:

○ Origins:
◆ Global duties to foreigners (State responsibility; State vs State
disputes)
◆ Back then, the individual cannot sue under the concept of State
responsibility which may cause injustice unless there is espousal
(State decides to represent)
◆ Second World War.
◆ Nuremberg Trials. They had no basis as to what laws were violated
because there were no HR law yet
◆ UDHR, Economic Rights Convention, Civil and Political
Convention. These are the three bill of rights.

● Characteristics of Human Rights:

○ Universality. No discrimination.
○ Inalienable. Cannot be taken away. Inherent.
○ Interdependence. The fulfillment of one right affects another. The violation
of one affects another.
○ Indivisibility.
○ Interrelated. The rights are interrelated.
○ Imprescriptible. Violation of it does not expire. The rights does not
prescribe.

● Human Rights Duties:

○ Duty to respect human rights
◆ Allow the human rights of others to be exercised.
◆ Is a negative obligation generally.
 ○ Duty to protect human rights
◆ Is a positive obligation.
◆ When there is a threat or actual infringement of the human rights of
people, the State should protect. Non-action is a human right
violation.
○ Duty to fulfill human rights
◆ Is a positive obligation
◆ The State should enable a person to exercise one’s rights
◆ Facilitate. Provide.

● Next Meeting: UDHR.

——————————————————————————————

June 16 Meeting:

SEE DIGEST FOR SAS v FRANCE, POPULIST CHALLENGE, and ALSTON ARTICLE
FOR NOW.

Module 1: Nature and Basic Principles of Human Rights.

● Alston Article:
○ State Responsibility applies when government of State Y violated the
rights of citizen-nationals of State X.
◆ Usually in this situations, the individuals arrested would pursue a case
locally with Y.
◆ If that fails, the government of X could represent its citizens. It enters
then the domain of international law and becomes a dispute between
two States.
◆ State responsibility means its responsibility to protect and pursue the
interests of its citizens.
◆ This is brought to a arbitral tribunal.
◆ Chattin Case:
◆ US citizen arrested by Mexican Government for embezzlement of
fares.
◆ When he broke out, US government asserted compensation to
Chattin by the Mexican Government on the ground that he was
mistreated.
◆ Testimony shows that Chattin:
◆ Was not duly informed of charges
◆ Trial in open court lasted only 5 minutes.
◆ In his case what applied was the arbitration agreement by US and
Mexico. If this was today, it was to be tested under international
norms of criminal procedure.
 The case itself, the dispute today could draw on a human rights
◆
treaty.
○ See MORE.

● Handbook on Human Rights Based Approach to Development Planning:

○ Human rights is founded on the self-evident imperative that every human
being has rights simply by virtue of being human.
○ Learning from the lessons of the Second World War, States realized that
international peace and security are inextricably linked to and aligned with
the respect and realization of human rights of the individual. International
law evolved and State values begun to accommodate human rights-based
action towards their people and enable some level of scrutiny by the
international community over seemingly domestic State actions within
their respective territorial bounds.
○ At the core of human rights is human dignity, which is understood to refer
to the inherent worth of the human person and rests on the human
condition. To respect human dignity means that the State must not treat
individuals in a way that denies the importance of life itself.
○ The use of the term rights in human rights is particularly important as it
connotes that which is due as a just claim, demandable in case of
violation.
○ On 19 December 1948, the General Assembly of the UN adopted the
Universal Declaration of Human Rights (UDHR) gaining a broad support
from 58 members coming from the different ideologies, religions,
economic development and culture of the world. It is the first interpretive
document that articulated the provisions in the UN Charter relating to
human rights. It is a statement of common goals and aspirations in terms
of entitlements of every individual. The declaration, while not legally
binding, has been considered as having attained the status of customary
international law.
◆ This led to the final adoption of two international covenants in 1966,
the International Covenant on Civil and Political Rights and
International Covenant on Economic, Social and Cultural Rights,
otherwise known as the International Bill of Human Rights.
○ At the domestic level, internalization of human rights happen in several
ways. Human rights have been integrated in Constitutions after its
international universalization and codification. Human rights norms, either
customary or conventional, are integrated in the domestic through
incorporation or transformation. Incorporation refers to the process of
automatic integration of international human rights norms upon a showing
that they constitute generally accepted principles or customary
international law. Transformation, on the other hand, refers to the
enactment of legislation to make a norm a part of the law of the land.
● Knowing the Universal Declaration of Human Rights by Mary Ann Glendon:
○ The Declaration is widely used but misread.
○ The prevailing approach is to invoke rights in the Declaration in a pick-
and-choose fashion.
◆ The provisions on social and economic justice are commonly ignored.
○ 58 countries agreed to a list of basic rights and values which were
essentially similar.
○ After all debates and objections, the Declaration drafted by Cassin,
Roosevelt, and promoted by Malik was unanimously approved.
○ The 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.
○ The general principles of dignity, liberty, equality, and fraternity,
proclaimed in Articles 1 and 2, are the portico's foundation blocks. The
facade consists of four equal columns crowned by a pediment. The four
pillars are: the personal liberties (Articles 3 through 11); the rights of the
individual in relation to others and to various groups (Articles 12 through
17); the spiritual, public, and political liberties (Articles 18 through 21); and
the economic, social, and cultural rights (Articles 22 through 27). The
pediment is composed of the three concluding articles, 28 through 30,
which establish a range of connections between the the individual and
society.
○ The Preamble begins by asserting the dependence of freedom, justice,
and peace upon the universal recognition of human dignity and rights. It
announces the principal innovation of the Declaration: that human rights
are universal, belonging to "all members of the human family." In other
words, it repudiates the long-standing view that the relation between a
sovereign state and its own citizens is that nation's own business.
◆ In the Declaration, for example, human dignity is said to be "inherent";
dignity and rights are "recognized," not conferred; human beings are
said to be "born" free and equal, and "endowed" with reason and
conscience; the family is "natural" as well as fundamental.
○ The Preamble recognizes the reason for the Declaration is the contempt
for human rights through barbarous acts
○ The Preamble is followed by a Proclamation clause which announces the
nature of the document. The Declaration is to be "a common standard of
achievement for all peoples and nations" toward which "every individual
and every organ of society" should "strive”.
○ The Declaration proper then begins, not with a right, but in civil law
fashion, with two introductory general articles. It was at Cassin's
insistence that a declaration purporting to be universal should begin with
a statement of what all human beings have in common.
◆ He insisted on beginning the Declaration with an affirmation of faith in
 ◆
human conscience and rationality
○ Article 2's emphatic statement of the anti-discrimination principle
underlines the principle of universality. "Everyone" in the Declaration
means everyone-"without distinction of any kind."
○ The Declaration then turns, in Articles 3 to 11, to familiar individual rights
that had already received a significant degree of recognition, if not
implementation, in various legal systems: rights to life, liberty, and
personal security; bans on slavery and torture; rights to legal recognition,
equality before the law, effective remedies for violation of fundamental
rights, and freedom from arbitrary arrest and detention; and guarantees of
fair criminal procedures, presumption of innocence, and the principle of
non-retroactivity in criminal law.
○ In Cassin's view, the rights in this first group were mainly directed toward
protecting individuals as such from aggression, while the rights in Articles
12 to 17 were more concerned with protecting people in their relations
with others and within civil society.
○ Cassin's third pillar, Articles 18 through 21, covers freedoms of religion
and belief in Article 18; opinion, expression, and communication in Article
19; assembly and association in Article 20; and the principle of
participatory democratic government in Article 21.
○ Apart from the aspiration to universality, the most innovative part of the
Declaration was its fourth pillar, Articles 22 through 27, which elevates to
fundamental right status several "new" economic, social, and cultural
rights.
◆ Article 22 specifies that the economic and social rights are to be
realized "in accordance with the organisation and resources of each
State."
◆ The chapeau tried to satisfy the socialist bloc by making clear that the
new rights, like the old, are "indispensable" to human dignity.
◆ The "new" rights are presented as rights of the individual,
"indispensable for his dignity and the free development of his
personality."
○ The last three sections of the Declaration, in Cassin's view, constituted the
pediment of the portico covering the entire Declaration and making
essential links between the individual and society.
◆ They address certain conditions that are prerequisite to the realization
of the rights and freedoms enumerated in the Declaration.
◆ Two necessary features of an order where rights can be realized are
then spelled out, but quickly qualified, in Article 29: "Everyone has
duties to the community" (but to a certain kind of community, where
"the free and full development of his personality is possible"), and
everyone's rights are subject to limitations (but only "for the purpose
of securing due recognition and respect for the rights and freedoms of
 others and of meeting the just requirements of morality, public order
and the general welfare in a democratic society"). A further limit on
rights is the subject of Article 30: "Nothing in this Declaration may be
interpreted as implying for any State, group, or person 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."
○ The Proclamation clause calls not only "all peoples and all nations" but
"every organ of society" to promote recognition and observance of human
rights.
○ In the main body of the Declaration, individuals are protected in their
social as well as political settings.
○ That national jurisdiction will always be at the base. It will remain primary.
But it will no longer be exclusive.
○ Dignity enjoys pride of place in the Declaration
○ The Declaration began to be widely, almost universally, read in the way
that Americans read the Bill of Rights, that is, as a string of essentially
separate guarantees.
◆ By isolating each part from its place in an overall design, that now-
common misreading of the Declaration promotes misunderstanding
and facilitates misuse.

● S.A.S v France:
○
● The End of Human Rights:
○ The rise of populism “threatens to reverse the accomplishments of the
modern human rights movement.”
○ In its own 2017-2018 report, Amnesty International states: “Over the past
year, leaders have pushed hate, fought against rights, ignored crimes
against humanity, and blithely let inequality and suffering spin out of
control.”
○ Populism a threat to human rights. Countries are indifferent or actively
hostile to concepts of human rights.
○ Frameworks meant to allow internationally sanctioned, state-sponsored
intervention to prevent genocide, crimes against humanity, and warcrimes
have not been that successful
○ These were the ICC, and the Responsibility to protect doctrine.
○ R2P is a military intervention after non-military measures has failed. It has
only been used once in Libya. Its implementation was faulty.
○ ICC on the other hand had flaws. Africa viewed it as targeting only African
countries and that the world’s powerful states haven’t ratified or joined the
Rome Statute which is the bass for the ICC such as China, U.S., India, and
Russia
○ The article calls to action activists to push back against the rising
 ○
authoritarianism.

● The Populist Challenge to Human Rights:

○ A

● The Universal Declaration Model:

○ Post World War I, there was still no concept of human rights.
◆ Under the League of Nations, there was no suggestion that other
states had rights or obligations with respect to human rights.
○ Then the UN came with its charter as a result of WW2 and the Holocaust.
○ Four objectives of the UN:
◆ To reaffirm faith in fundamental human rights
◆ To promote social progress, and better standards of life in larger
freedom.
◆ To achieve international co-operation in solving international problems
of an economic, social, cultural, or humanitarian character.
◆ To promote and encourage respect for human rights and for
fundamental freedoms without distinction.
○ After the UN was formed, a Commission on Human Rights was made and
drafted what would become the Declaration.
◆ Out of 51 States, none opposed.
○ Was made as an authoritative document to guide States.
○ Was characterized as the most important document of the century.
○ The 1966 Covenants gave force of treaty law to the Declaration. These
were:
◆ The Covenant on Economic, Social, and Cultural Rights
◆ The Covenant on Civil and Political Rights.
○ The Universal Declaration and the Covenants-together known as the
International Bill of Human Rights proclaim a short but substantial list of
human rights.
○ Features of the Model:
◆ Human rights are rooted in the conception of human dignity.
◆ Universal rights or entitlements are the mechanism for implementing
such values as non-discrimination and an adequate standard of living
◆ All rights in the Declaration and Covenants except of the right of
peoples to self-determination, are rights of individuals, not corporate
entities.
◆ International recognized human rights are treated as an
interdependent and indivisible whole rather than a menu from which
one may freely select.
◆ States have the near-exclusive responsibility to implement them for
their own nationals.
○ Human dignity is the ultimate value that gives coherence to human rights.
 ◆ Inherent dignity of a human person.
◆ No express definition of human dignity
◆ Intrinsic meaning has been left to intuitive understanding.
○ Dignity indicates worth that demands respect. The quality of being worthy
or honorable.
○ The claim of human dignity is that simply being human makes one worthy
or deserving of respect.
○ All the rights in the Declaration and Covenants are Individual Rights.
○ If human rights are the rights that one has simply as a human being, then
only human beings ave human rights.
○ Any plausible account of human dignity must include membership in
society.
○ These are individual rights must it must be recognized on the idea that the
individual is part of a larger social enterprise.
○ Individual rights are a social practice that creates systems of obligations
between individuals and groups of various sorts.
○ The Universal Declaration model treats internationally recognized human
rights holistically, as an indivisible structure of rights in which the value of
each right is significantly augmented by the presence of may others.
○ In short, the Universal Declaration model treats the rights in its provisions
as Interdependent and Indivisible.
○ Interdependence suggest a functional relation between rights, they
interact with one another to produce a whole that is more than the sum of
its parts.
○ Indivisibility suggests that a life of dignity is not possible without
something close to the full range of internationally recognized human
rights.
○ The State and International Human Rights:
◆ Human rights impose obligations on and are exercised against the
State with regard to a person in its territory.
◆ These are obligation to the State.
◆ Its implementation remains almost exclusively national.
◆ International human rights regimes are supervisory mechanisms.
Primary implementation is national.
◆ General rule is that it is the obligation of the State of their citizen in
their territory.
◆ But foreign nationals only while they are subject to the JD of that
state are under that obligation as well.
○ Human rights entails these things:
◆ Prohibits state interference in personal lives of its citizens. To prevent
state-based wrongs.
◆ They are also required to provide certain civil, political, economic,
social, and cultural opportunities and protections.
 Protect and implement.
◆
A state that does no active harm itself is not enough, it must also
◆
protect individuals against abuses by other individuals.
○ Respecting, Protecting, and Providing Human Rights:
◆ Duties of the State:
◆ To respect the right
◆ To protect against deprivation
◆ To provide what is necessary to ensure that right-holders are able
to enjoy their rights
◆ To aid the deprived
◆ Instead of focusing on statutory legal provisions to respect and not
deprive human rights, which are enforced in courts, there should be a
focus shift to social provision because much of the work on protection
happens outside the courts.
◆ Social provision allows the state that there is some system of
provision in place to give a reasonable guarantee to its citizens of their
rights.

Module 2: The UDHR.

● Velasquez Rodriguez v Honduras Case:
○ Velasquez Rodriguez filed the case against the State of Honduras.
○ He alleged to have been kidnapped by the armed forces of the State for a
number of days and tortured for being a student-activist.
○ The evidence of Rodriguez shows that it had been a pattern by their
armed forces to abduct activists, and that this was what was done to him.
○ The evidence also showed per the testimony of Honduras lawyers, that
their domestic remedies are not effective to obtain the liberty of the
victims of enforced disappearances..
◆ Habeas corpus does not work because they are prevented from
inspecting the places of detention.
○ One issue is what standard of proof must be used in the present case to
prove that this case falls in the exception of the rule in prior exhaustion of
domestic remedies? (on the exception-ground that the party alleging
violation of his rights has been denied access to the remedies under
domestic law or has been prevented from exhausting them)
○ 1.) The standards of proof are less formal in an international legal
proceeding than in a domestic one.
◆ This requires the Court to apply a standard of proof which considers
the seriousness of the charge and which, notwithstanding what has
already been said, is capable of establishing the truth of the
allegations in a convincing manner.
 ◆The international protection of human rights should not be
confused with criminal justice. States do not appear before the
Court as defendants in a criminal action. The objective of
international human rights law is not to punish those individuals
who are guilty of violations, but rather to protect the victims and
to provide for the reparation of damages resulting from the acts
of the States responsible.
◆ In contrast to domestic criminal law, in proceedings to determine
human rights violations the State cannot rely on the defense that the
complainant has failed to present evidence when it cannot be
obtained without the State's cooperation.
◆ The State controls the means to verify acts occurring within its
territory. Although the Commission has investigatory powers, it
cannot exercise them within a State's jurisdiction unless it has the
cooperation of that State.
○ Second Issue is whether there has been a violation of Human Rights?
◆ The following facts have been proven in this proceeding: ( 1 ) a
practice of disappearances carried out or tolerated by Honduran
officials existed between 1981 and 1984; ( 2 ) Manfredo Velásquez
disappeared at the hands of or with the acquiescence of those
officials within the framework of that practice; and ( 3 ) the
Government of Honduras failed to guarantee the human rights
affected by that practice.
◆ The power of the State is not unlimited, nor may the State resort to
any means to attain its ends. The State is subject to law and morality.
Disrespect for human dignity cannot serve as the basis for any State
action.
◆ The forced disappearance violates:
◆ Article 7 of the Convention on right to personal liberty
◆ Article 5 on right to the integrity of the person
◆ Article 4 on right to life
◆ The act of forced disappearance violates the concept of human
dignity.
◆ On top of the numerous violations, the Convention also provide that
each State has the Obligation to Respect Rights of people under
Article 1. Article 1 imposes the following obligations on State:
◆ To respect the rights and freedoms of people
◆ To ensure free and full exercise of rights
◆ For there to be a violation: What is decisive is whether a violation of
the rights recognized by the Convention has occurred with the
support or the acquiescence of the government, or whether the
State has allowed the act to take place without taking measures
to prevent it or to punish those responsible.
 ◆ Includes the duty of the State to investigate every situation
involving a violation of the rights protected by the Convention
◆ In the instant case, the evidence shows a complete inability of the
procedures of the State of Honduras, which were theoretically
adequate, to carry out an investigation into the disappearance of
Manfredo Velásquez, and of the fulfillment of its duties to pay
compensation and punish those responsible.
◆ Habeas Corpus does not work because they are prevented from
inspecting detention sites.
◆ Failure of the judicial system to act upon the writs.
◆ Executive does not do a serious investigation.
◆ The Court is convinced, and has so found, that the disappearance of
Manfredo Velásquez was carried out by agents who acted under cover
of public authority. However, even had that fact not been proven, the
failure of the State apparatus to act, which is clearly proven, is a
failure on the part of Honduras to fulfill the duties it assumed under
Article 1( 1 ) of the Convention, which obligated it to ensure Manfredo
Velásquez the free and full exercise of his human rights.
○ State of Honduras found liable for damages.

● Mejoff v Director of Prisons:

○ Second petition for habeas corpus by petitioner.
○ Petitioner was a Russian national sent to the Philippine by Japan as a spy.
○ After the was he was tried and the People’s Court ordered his release. It
was found however that he entered the country illegally, hence
immigration ordered his deportation.
○ He cannot however be deported because no country would take him.
Thus, he was detained until deportation. Which led to the petitions for
habeas corpus since it has already been around 3 years since his
detention.
○ The first petition, the Court ruled that the petitioner’s detention was only
temporary but ordered deportation within a reasonable time.
○ 2 years after, still no deportation. Hence this second petition.
○ Issue is WON habeas corpus should be granted?
○ Court ruled yes.
○ 1.) No person, even foreign nationals, may be held indefinitely in detention.
◆ Applies to all except enemy aliens
○ 2.) By our constitution it states that we adopt generally accepted
principles of international law as part of the law of Nation
◆ And one such principle of international law is that of the UDHR.
◆ It guarantees right to life and liberty and other fundamental rights to
all.
◆ It includes that no one shall be subjected to arbitrary arrest,
 ◆
detention, or exile.
○ Given these, petition is granted but under surveillance per US
jurisprudence.

● Republic v Sandiganbayan (& Ramas, Dimaano).

○ Ramas was investigated by the PCGG. Dimaano’s house was raided by
virtue of a search warrant issued 5 days after the EDSA revolution where
no Constitution was in effect for the alleged properties of Ramas.
○ SB held that the evidence is inadmissible, hence this petition.
○ One issue is whether the exclusionary rule in the constitution applies given
that the 1973 was not in effect because of the revolutionary government,
and that the 1987 constitution is not applicable yet?
○ Court ruled yes.
○ Even though the past constitution does not apply to the revolutionary
government, that government assumed the responsibility of the treaty
obligations and compliance with international law of the State.
○ In this case they had to comply with the Declaration and the Covenant.
○ Court ruled that under the Covenant, States had the duty to insure that no
one shall be subjected to arbitrary or unlawful interference with his
privacy, home, or correspondence.
○ The Declaration on the other hand, while not intended as a legally binding
document, being only a declaration, is however part of the generally
accepted principles of international law which have almost the same rights
as our Bill of Rights.
○ In this case, the Dimaano was not present in the raid and they acquired
evidence not described in the warrant. Hence, it was illegal.

● Dissent in RP v SB by Puno:
○ Discussed natural law first. True law is right reason in agreement with
nature, is universal and unchanging.
◆ Natural rights are those rights that appertain to man in right of his
existence.
◆ This as opposed to civil rights which appertain to man in right of his
being a member of society. However civil rights are derived from
natural rights of individuals.
◆ Example of this is right to writ of habeas corpus.
○ Natural rights evolved to be the basis of human rights.
○ Human Rights, the UDHR, and other instruments with the same principles,
stemmed from Natural Rights.
○ Human rights is defined as rights which inheres in persons from the fact of
their humanity.
○ Issue: Can respondent invoke the exclusionary rule even without the
constitution?
 ○ Puno said yes.
○ The right against unreasonable search and seizure is a core right implicit
in the natural right to life, liberty and property.
◆ The life to which each person has a right is not a life lived in fear that
his person and property may be unreasonably violated by a powerful
ruler. Rather, it is a life lived with the assurance that the government
he established and consented to, will protect the security of his
person and property.
○ By natural right, there is right to life, liberty, and security
◆ Life is life not lived in fear
◆ Liberty includes privacy and sanctity of home.
◆ Security is uninterrupted enjoyment of his life, limbs, and health.
○ Thus, the reason for the constitutional provision against unreasonable
searches and seizure is the natural right to life, liberty, and property. This,
is a human right because is appertains to man in right of his existence, not
a mere civil right created and protected by positive law.
○ However the exclusionary rule right cannot be said to be a human right as
history cannot attest to its natural right status.