1 Module 1 - TITLE

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PROGRAM OUTCOMES

Program Intended Learning Outcomes:

Common to all programs in all types of schools

a) engage in lifelong learning and understand the need to keep abreast with the development in the
field of practice;
b) communicate effectively;
c) work effectively and independently in multi-disciplinary and cultural teams;
d) practice professional, social and ethical attitudes, values and responsibilities;
e) appreciate and value-Filipino historical and cultural heritage―and uphold constitutional and
statutory guarantees.

Specific Program Outcome

a) apply knowledge Domestic application of International Human Rights Laws (IHRL);

b) apply knowledge and skills on International application of IHRL;
c) apply knowledge and skills in Enforcement mechanisms, Enforcement against individual,
Enforcement against States and Restrictions and Limitations; and
d) apply knowledge and skills on Charter-based mechanisms and Treaty-based mechanisms

COURSE TITLE : Human Rights Laws Education

COURSE DESCRIPTION

This course equips you with applicable insights and practical skills for legal education
curriculum in the Philippines and the International Human Rights Laws as part of the Political Law. It
usually covers the general principles of Human Rights, the United Nations System, the core human
rights treaties and their application and monitoring mechanisms, International Humanitarian Law,
and the international criminal tribunals. In many aspects, the subject intertwines with Criminal Law,
Labor Law, and Tort.

The aim of the subject is to introduce students to the general principles of human rights laws,
the important human rights documents, the core human rights treaties, and the strategies and
mechanisms for the protection of human rights. Both international and Philippine sources of human
rights laws are treatise of this subject.

COURSE OUTCOMES (CMO)

In this course, you should be able to:

1. familiarize the Application, Enforcement and Limitations of International Human Rights Law
(IHRL);
2. identify its Domestic and International Application;
3. demonstrate the Enforcement Mechanisms, Enforcement Against Individuals, Enforcement
against States, and its Restrictions; and
4. distinguish the Monitoring Systems, its Charter-Based Mechanism, and Treaty Based
Mechanisms.

Course Requirements

1. Prompt submission of course requirements.

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2. Pass major exams (Prelim, Midterm, Pre-final and final).

3. Must have access to the internet and gadgets or computer to join the online blended learning
approach.
4. Cheating and other form of dishonesty in work outputs is sanctioned appropriately based on
provisions of the schools’ Student Manual.
5. Must address the instructor courteously and respectfully.
6. Must consult with the instructor regarding academic standing.

INTRODUCTION

This module will discuss on the adoption of the United Nations General Assembly (UNGA) on
December 10, 1948 and the proclaimed Universal Declaration of Human Rights (UDHR). It called
upon all member countries to publicize the text of the declaration and to cause it to be disseminated,
displayed, read and expounded principally in schools and other educational institutions, without
distinction based on the political status of countries or territories.

The Universal Declaration of Human Rights and two other human rights treaties are
collectively known as the International Bill of Rights. The two treaties are the International
Convention on Civil and Political Rights (ICCPR) and its two protocols, and the International
Convention on Economic, Social and Cultural Rights (ICESCR).

In the Philippine legal education curriculum, International Human Rights Laws is part of
Political Law. It usually covers the general principles of Human Rights, the United Nations System,
the core human rights treaties and their application and monitoring mechanisms, International
Humanitarian Law, and the international criminal tribunals. In many aspects, the subject intertwines
with Criminal Law, Labor Law, and Tort.

The aim of the subject is to introduce students to the general principles of human rights laws, the
important human rights documents, the core human rights treaties, and the strategies and
mechanisms for the protection of human rights. Both international and Philippine sources of human
rights laws are treatise of this subject.

PRE-ASSESSMENT

Before going over this learning module, you are required to answer the following pre-test
questions, enumerated below.

1. In absolute monism, international law automatically becomes domestic law, without need to enact
a separate national law wherein domestic laws including the Constitution that contravene
international law, maybe declared invalid.

a. Monist Theory
b. Dualist Theory
c. Signature
d. Signature ad Referendum

2. International law and domestic law are different legal systems. It does not become obligatory to
its citizens until the State passes a corresponding domestic law containing its provisions.

a. Monist Theory
b. Dualist Theory
c. Signature
d. Signature ad Referendum
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3. The Philippines has signed and ratified most of the important international human rights treaties.
However, many Philippine judges still consider international laws as having less binding effect
compared to domestic laws.

a. The statement is correct

b. It is false
c. It is vague
d. None of the above

4. It is the act of ratification which operates to bind that State, notwithstanding the signature, there
still must be the process of ratification, acceptance or approval to be done by the State.

a. Acts of formal confirmation

b. Exchange of letters or notes
c. Signature
d. Signature ad referendum

5. It means that the signature becomes definitive only once the signature is confirmed by the State
wherein the definitive signature operates as the consent of a State to be bound by a treaty when
that treaty is not subject to ratification, acceptance or approval.

a. Acts of formal confirmation

b. Exchange of letters or notes
c. Signature
d. Signature ad referendum

6. Where it is an international organization that intends to be bound by a treaty, instead of

ratification, what you call is the term used on this matter?

a. Acts of formal confirmation

b. Exchange of letters or notes
c. Signature
d. Signature ad referendum

7. Means a unilateral statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify
the legal effect of certain provisions of the treaty in their application to that State.

a. Enforcement Mechanisms
b. Interpretative declaration
c. Modification:
d. Reservation

8. It is an instrument that is annexed to a treaty with the goal of interpreting or explaining the
provisions of the letter.

a. Enforcement Mechanisms
b. Interpretative declaration
c. Modification:
d. Reservation

9. It Is the variation of certain treaty provisions only as between particular parties of a treaty, while in
their relation to the other parties the original treaty provisions remain applicable.

a. Enforcement Mechanisms
b. Interpretative declaration
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c. Modification:
d. Reservation

10. States and governments are the guarantors and protectors of human rights, and because of the
doctrine of State responsibility, they can be violators at the same time. They are not, however, the
only violators of these rights. Individuals, juridical persons, and business entities maybe violators.

a. Enforcement Mechanisms
b. Enforcement against Individuals
c. Domestic enforcement
d. International enforcement

LESSON MAP

Application, Enforcement
and Limitations of IHRL

The Domestic The International

Application of IHRL Application of IHRL

This map shows the application, enforcement

and limitations of IHRL on domestic and
international level

Lesson Learning Outcomes

Lesson 3

Application, Enforcement and Limitations of INTERNATIONAL HUMAN RIGHTS LAWS

I. LEARNING OUTCOMES:

In this lesson, you should be able to:

1. describe the domestic and international application of international human rights laws;
2. discuss the enforcement mechanisms, enforcement against individuals and states of the IHRL ;
3. enumerate the five factors of IHRL enforcement against states;
4. explain the restrictions and limitations of IHRL;
5. understand and apply the IHRL monitoring systems; and
6. demonstrate the charter-based and treaty-based IHRL monitoring systems
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CONTENT

ENGAGE

WHAT’S ON MY MIND?

Instruction: Looking at the photo attached, just simply observe, describe and identify what’s
going on or what’s happening during this protest action. From this activity, you will learn the
concept of this lesson. Write your answers on the space provided below.

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EXPLORE

EXPLAIN

A. Domestic Application of International Human Rights Laws (IHRL)

There are two theories on the domestic applicability of international human rights law:

1. Monist theory-International law and domestic law comprise one legal system.

In absolute monism, international law automatically becomes domestic law,

without need to enact a separate national law.

Domestic laws including the Constitution that contravene international law, maybe
declared invalid.

International human rights law dictates domestic laws, and the State must enact
domestic laws to conform to international law.

2. Dualist theory-International law and domestic law are different legal systems. It
does not become obligatory to its citizens until the State passes a corresponding
domestic law containing its provisions.

At times, local laws are considered more binding and superior by judges and legal
practitioners. Most times, local laws are revisited and amended to conform to
international law, but until such amendment, the local laws remain valid, although
this could mean a possible violation by the State of its treaty obligations.

The Philippines has signed and ratified most of the important international human rights
treaties. However, many Philippine judges still consider international laws as having less binding
effect compared to domestic laws. The dualist theory is the one prevailing in the Philippines.

Congress has to pass domestic laws (e.g. Child Abuse Law for CRC; Anti-Violence Against
women and their Children (RA 9262 of 2004) or Anti-Violence of Women and Children (VOWC) for
Convention on the Elimination of Discrimination Against Women (CEDAW)) in order to enforce
international conventions locally.

B. International Application of International Human Rights Law

The consent of a State to be bound by a treaty maybe expressed by signature, exchange of

instruments constituting a treaty, ratification, acceptance approval or accession, or by any other
means, if so agreed.

Signature:

Signature to a treaty, however, does not automatically mean consent of a State to be bound
by said treaty, if under the national law. It is the act of ratification which operates to bind that State.
Notwithstanding the signature, there still must be the process of ratification, acceptance or approval
to be done by the State. Without ratification, the signature may only operate as a means of
authentication and to show the openness of the signatory State for further discussions on the treaty-
making process.
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A “Signature ad referendum,” means that the signature becomes definitive only once the
signature is confirmed by the State. “Definitive Signature” operates as the consent of a State to be
bound by a treaty when that treaty is not subject to ratification, acceptance or approval.

Exchange of letters or notes:

Consent can be expressed through exchange of letters or notes. Here, there will necessarily be two
letters, if the treaty is bilateral, with at least one from each party.

Acts of formal confirmation:

Where it is an international organization that intends to be bound by a treaty, instead of ratification

the term used is usually “act of formal confirmation.”

States Parties may be allowed to limit, restrict, or modify the application of a treaty by:

1) Reservation;
2) Interpretative declaration;
3) Modification; and
4) Denunciation.

It is important to note that a State “may not invoke the provisions of its internal law as justification
for its failure to perform a treaty.”

Reservation:

Means a unilateral statement, however phrased or named, made by a State, when signing, ratifying,
accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal
effect of certain provisions of the treaty in their application to that State.

Reservations are not allowed when:

1) It is prohibited by the treaty;

2) It is not included in the reservation specified by the treaty; and
3) It is incompatible with the object and purpose of the treaty.

Interpretative declaration:

An interpretative declaration is an instrument that is annexed to a treaty with the goal of interpreting
or explaining the provisions of the letter.

Modification:

Is the variation of certain treaty provisions only as between particular parties of a treaty, while in
their relation to the other parties the original treaty provisions remain applicable.

If the treaty is silent on modifications, they are allowed only if the modifications do not affect the
rights or obligations of the other parties to the treaty and do not contravene the object and the
purpose of the treaty.

Denunciation:

Means the withdrawal by the State Party from a treaty.

B. Enforcement Mechanisms
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States and governments are the guarantors and protectors of human rights, and because of
the doctrine of State responsibility, they can be violators at the same time. They are not, however,
the only violators of these rights. Individuals, juridical persons, and business entities maybe
violators. It is necessary to distinguish between enforcement of human rights laws against
individual violators and enforcement against State violators, as these involve different means of
enforcement.

1. Enforcement against Individuals

Domestic enforcement:

In order to effectively protect individuals from infringement on their human rights,

enforcement at the national level is necessary and desirable. The enactment of national laws to
enforce international human rights commitments has been a Philippine strategy. In so doing, it
translates a soft law into a hard law, giving it more teeth, so to speak, and making individual
violators directly accountable.

In the Philippines, we have the Revised Penal Code and other penal statutes which
criminalize human rights violations and punish individual violators. Title 2 thereof, on Crimes against
the Fundamental Laws of the State, punishes violations of human rights.

The new Civil Code contains provisions on the right to seek compensation for damages from
individual violators. The laws creating the Ombudsman and the Revised Administrative Code
also provide administrative sanctions against violators in government service. Protective writs and
similar juridical remedies may also be availed of, such as the writs of habeas corpus, amparo and
habeas data, and even restraining orders.

International enforcement:

Individuals may be brought to justice before hybrid courts ad hoc international courts, or
before the International Criminal Court (ICC). In the latter courts, however, its jurisdiction is
limited to the crimes of genocide, crimes against humanity, war crimes and crimes of
aggression. These are all criminal courts.

2. Enforcement against States

Court action

Where the violator is a State, redress may be sought at the national, regional, or international
courts. In the regional level, regional human rights conventions or treaties govern the manner by
which human rights commissions and courts may be accessed to seek redress. At the International
Court of Justice (ICJ), only States may bring a case against another State. At the International
Criminal Court (ICC), individuals and heads of State may be tried for treaty in so far as the crime of
“acts of aggression” is concerned.

Diplomatic means

Aside from bringing complaints before human rights courts, States whose nationals have
been victims of human rights violations by another State may opt to avail of diplomatic means.
This may entail negotiations and dialogue.
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a) Torsion

This may involve withholding of foreign assistance (US) or stoppage of oil

imports (oil producing countries). These are unfriendly acts which do not necessarily constitute
violations of rights of the offending State.

b) Countermeasures

Countermeasures are responses by a State to the wrongful conduct of another,

as a tool of self-redress.

c) Military Intervention

The use of armed force is still being resorted nowadays. The military intervention in Libya in
2011 was by virtue of a United Nations Resolution. The use of force in Iraq, however, did not have
such authority.

C. Restrictions and Limitations

While the substance of human rights cannot be taken away from human beings, its exercise
may, however, be regulated. An unrestricted exercise of rights could infringe on the rights of others,
or could be detrimental to public health, public morals or national security.

States do not have the absolute discretion and prerogative to restrict the exercise of human
rights. Their actions must be bounded by certain parameters and they must take into consideration
the following:

1) There must a clear legal provisions of law;

2) The restriction must be a specific legitimate purpose;
3) The proportionality test must be applied;
4) The least intrusive measure should be applied; and
5) The law must be strictly interpreted against restriction.

MONITORING SYSTEMS

In order to check on the compliance by States of these obligations, monitoring mechanisms

are set up. These monitoring mechanisms maybe:

1) Charter-based –Those provided under the United Nations Charters itself, or

through UN organs, such as the Human Rights Council (formerly Human Rights
Commission)
2) Treaty-based- Those provided under the treaties themselves.

A. Charter-Based Mechanisms

1) Complaint Procedure:

This is a procedure whereby individual complaints from human rights victims or groups
representing them are acceptable by the UN body. Among the main features of the complaint
mechanisms is its confidentiality provision and the need for prior exhaustion of domestic remedies.

The procedure is two tiered:

First, the complaint goes to the Working Group on Communications (WGC), a group of
five experts, who assesses the admissibility and merits of the complaint.
11 Module 1 - TITLE

Second, the complaint is endorsed to the Working Group on Situations (WGS), another
group of five members appointed by the regional groups of member States. This group examines
the complaint and presents its recommendations to the Human rights Council on the course of
action to take.

1) State Reports

States are required to render a report on their human rights situation. These annual reports
are called Country Reports on Human Rights Practices or the Human Rights Reports. They contain
situations on the civil, political, and economic rights as set forth in the Universal Declaration of
Human Rights and other treaties.

2) Special Procedures

Special Rapporteurs

Aside from reports coming from the States themselves, United Nations rapporteurs also
provide the UN important information on the extent of compliance by States in their international
commitments. Rapporteurs may be country-specific or thematic. Special rapporteurs, experts of
envoys are sometimes sent to member States in order that they make an investigation and report to
the UN on the human rights violations committed.

Among the thematic special rapporteurs are the Special Rapporteurs on Adequate Housing,
Food, Education, Minority Issues, Physical, Mental Health, Independence of Judges and Lawyers,
Slavery, Trafficking in Persons, Torture, Human Rights of Migrants, Sale of Children, Child
Prostitution and Child Pornography, and Extrajudicial, Summary or Arbitrary Executions.

3) Non-Government Organizations (NGOs) and National Human Rights Institutions (NHRIs)

NGOs and NHRIs play a vital role in providing the UN with information on the human rights
situation in a State. NGOs may submit written reports, referred to as “shadow reports” or “alternative
reports” which could be useful during the Universal Periodic Review (UPR) process. NGOs with
consultative status can participate in the discussions on human rights issues before the UN Human
Rights Council.

4) Universal Periodic Review

The Universal periodic review (UPR) is authorized under the UN General Assembly
Resolution No. 60/251 issued on March 15, 2006, the same instrument that established the Human
Rights Council. In this procedure, the State presents its report on its human rights situation,
composed of stroika three other member States will give their comments and suggestions. There
are concerns that this procedure might not be able to depict the real human rights situation in a
State, for two reasons:

First, because the State making the report might try to sanitize it; and

Second, because the States composing of stroika, represented by diplomats, are wont to
employ diplomacy instead of confronting the reporting State on a human rights violation.

B. Treaty-Based Mechanisms

Human rights treaties usually contain provisions to monitor compliance by

States of their obligations under the treaty. The monitoring bodies are the following:

1) Human Rights Committee- composed of 18 members, is the body charged with

overseeing compliance of the ICCPR. The committee reviews the reports of the
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162 States who ratified the ICCPR, as well as the individual petitions against the
114 States who ratified the Optional Protocol to the ICCPR.
2) Committee on Economic, Social and Cultural Rights-This body monitors the
compliance by States of the ICESCR. The committee is directly under the
Economic and Social Council (ECOSOC) and the General Assembly.
3) Committee on the Elimination of Racial Discrimination-Monitors the International
Convention on the Elimination of Racial Discrimination, aside from the reporting
procedure, it also has three other mechanisms: the early warning procedures, the
examination of interstate complaints, and the examination of individual complaints.
4) Committee on the Elimination of Discrimination Against Women-Monitors the
Convention on the Elimination of Discrimination Against Women. The committee
issue General recommendations on issues affecting women which need more
focus.
5) Committee on the Rights of the Child
6) Committee Against Torture- Monitors the Convention Against Torture and other
cruel, inhuman, or degrading treatment or punishment.
7) Committee on Migrant Workers- Monitors the compliance by member States of the
International Convention on the Protection of all Rights of Migrant Workers and
Members of their Families.
8) Committee on the Rights of Persons with Disabilities-Monitors the Convention on
the Rights of Persons with Disabilities.

As previously stated, treaty bodies render views on complaints lodged before them, and concluding
observations on the State reports.

Activity 2: Let’s show what you have learned!

Instruction: Revisit the activity 1 and analyze the article presented above. You are tasked to
connect your ideas in previous activity to present activity. By doing this, you should be able to write
down your thoughts using the concept map below.

EXTEND

APPLYING THEORIES INTO PRACTICE

Think Skills Activities

1. What do you think is the reason, why states and governments are the guarantors and
protectors of human rights, and because of the doctrine of state responsibility, they can be
violators at the same time? Explain your answer in not less than 100 words.

2. Cite at least three Enforcement Mechanisms on violations of international human rights laws.
Support your answers with evidence and propose prevention and solution.

EVALUATE

On Human Rights Treaties that usually contain provisions to monitor compliance by States
of their obligations under the treaty: Make an illustration on these treaties. In your demonstration,
name the eight monitoring bodies, such as:

1) Human Rights Committee

2) Committee on Economic
3) Committee on the Elimination of Racial Discrimination-
4) Committee on the Elimination of Discrimination Against Women
5) Committee on the Rights of the Child
6) Committee against Torture
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7) Committee on Migrant Workers

8) Committee on the Rights of Persons with Disabilities

TOPIC SUMMARY

 Domestic Application of International Human Rights Laws (IHRL)

 There are two theories on the domestic applicability of international human rights law:
a. Monist theory
b. Dualist theory

 International Application of International Human Rights Law

Signature: Signature to a treaty, however, does not automatically mean consent of a State to
be bound by said treaty, if under the national law. It is the act of ratification which operates to bind
that State. Notwithstanding the signature, there still must be the process of ratification, acceptance
or approval to be done by the State. Without ratification, the signature may only operate as a means
of authentication and to show the openness of the signatory State for further discussions on the
treaty-making process.

A “Signature ad referendum,” means that the signature becomes definitive only once the
signature is confirmed by the State. “Definitive Signature” operates as the consent of a State to be
bound by a treaty when that treaty is not subject to ratification, acceptance or approval.

Exchange of letters or notes: Consent can be expressed through exchange of letters or

notes. Here, there will necessarily be two letters, if the treaty is bilateral, with at least one from each
party.

Acts of formal confirmation: Where it is an international organization that intends to be

bound by a treaty, instead of ratification the term used is usually “act of formal confirmation.”

 States Parties may be allowed to limit, restrict, or modify the application of a treaty by:

Reservation
Interpretative declaration
Modification
Denunciation

 Enforcement Mechanisms

Enforcement against Individuals

Domestic enforcement:
International enforcement
Enforcement against States
Court action
Diplomatic means
Torsion
Countermeasures
Military Intervention

 Restrictions and Limitations-States do not have the absolute discretioin and prerogative to
restrict the exercise of human rights. Their actions must be bounded by certain parameters
and they must take into consideration the following:

There must a clear legal provisions of law;

14 Module 1 - TITLE

The restriction must be a specific legitimate purpose;

The proportionality test must be applied;
The least intrusive measure should be applied; and 5) The law must be strictly
interpreted against restriction.

POST-ASSESSMENT

To assess your knowhow on this learning module, you are required to answer the following
post-test questions:

1. Where the violator is a State, redress may be sought at the national, regional, or international
courts. In the regional level, regional human rights conventions or treaties govern the manner by
which human rights commissions and courts may be accessed to seek redress.

a. Court action
b. Diplomatic means
c. Torsion
d. None of the above

2. Aside from bringing complaints before human rights courts, States whose nationals have been
victims of human rights violations by another State may opt to avail negotiations and dialogue.

a. Court action
b. Diplomatic means
c. Torsion
d. None of the above

3. This may involve withholding of foreign assistance (US) or stoppage of oil imports (oil producing
countries). These are unfriendly acts which do not necessarily constitute violations of rights of the
offending State.

a. Court action
b. Diplomatic means
c. Torsion
d. None of the above

4. These are responses by a State to the wrongful conduct of another, as a tool of self-redress.

a. Countermeasures
b. Military Intervention
c. Restrictions and Limitations
d. None of the above

5. The use of armed force is still being resorted nowadays. The military intervention in Libya in
2011 was by virtue of a United Nations Resolution. The use of force in Iraq, however, did not have
such authority.

a. Countermeasures
b. Military Intervention
c. Restrictions and Limitations
d. None of the above
15 Module 1 - TITLE

6. While the substance of human rights cannot be taken away from human beings, its exercise
may, however, be regulated. An unrestricted exercise of rights could infringe on the rights of others,
or could be detrimental to public health, public morals or national security.

a. Countermeasures
b. Military Intervention
c. Restrictions and Limitations
d. None of the above

7. Those which are provided under the United Nations Charters itself, or through UN organs, such
as the Human Rights Council (formerly Human Rights Commission)

a. Charter-based
b. Treaty-based
c. State based
d. None of the above
8. These annual reports are called Country Reports on Human Rights Practices or the Human
Rights Reports. They contain situations on the civil, political, and economic rights as set forth in the
Universal Declaration of Human Rights and other treaties.

a. State Report
b. Special Procedures
c. Special Rapporteurs
d. None of the above

9. It plays a vital role in providing the UN with information on the human rights situation in a State
and may submit written reports, referred to as “shadow reports” or “alternative reports” which could
be useful during the Universal Periodic Review (UPR) process.

a. National and Local Government Units

b. Government Agencies
c. Non-Government Organizations (NGOs) and National Human Rights Institutions
(NHRIs)
d. None of the above

10. Human rights treaties usually contain provisions to monitor compliance by States of their
obligations under the treaty.

a. Committee on the Elimination of Racial Discrimination

b. Committee on Economic, Social and Cultural Rights
c. Human Rights Committee
d. Treaty based mechanisms

REFERENCES

Books

Atty. Pepita Jane A. Petralba (2013), International and Philippine Human Rights Laws
The 1987 Philippine Constitution
The International Investigative Training Assistance Program (2017), Philippine National Police
Manual on Philippine Criminal Justice System

Friedrich Naumann Foundation for Freedom

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