Human Rights Reviewer

CHAPTER 1

c.

Economic and Social – rights conferred

Human Rights – rights which are inherent in our nature,

by law which enables them to achieve

and without which, cannot live as human

social and economic development which

beings.

ensures their well-being, happiness and

Dignity of Man – derived right of every person to free

financial security. d. Cultural – rights t ensure preservation of

development of his personality. Characteristics of HR: 1. Inherent – not granted by any person. (right to

national culture. 4. Struggle for Recognition: a. First generation – derives from 17 th to 18th century of English, American and

life and right to dignity as a human being) 2. Fundamental – life without it would

be

French

meaningless. (freedom of thought and religion) 3. Inalienable – cannot be rightfully taken away as

economic and cultural rights which originated from the socialist tradition and

denied though availed. 6. Universal – irrespective of their origin, status or

materialized without the realization of another. Classification of Rights: 1. Source: a. Natural – God-given rights which are

c.

conceives HR in positive terms. Third generation – covers collective

rights. 5. Derogability a. Absolute or non-derogable – cannot be: i. Suspended ii. Taken away iii. Restricted/limited Even in:  

acknowledged by everyone as morally good. Unwritten but prevail as norms. b. Constitutional – rights conferred and

National emergency Government invokes

national

security b. Derogable or can-be-limited – may be

protected by the Constitution which

c.

favors

government. b. Second generation – covers social,

time. (freedom of thought) 5. Indivisible – incapable of division and cannot be

be

which

abstention rather than intervention of the

an individual. 4. Imprescribable – cannot be lost thru passage of

condition or place where they live. 7. Interdependent – fulfillment cannot

revolutions

cannot be taken away by the law

suspended,

limited

or

restricted

making body. Statutory – rights provided by the law

depending on the circumstances which

and promulgated by the law making

REQUISITES FOR RESTRCITIONS TO

body which can also be abolished by the

BE VALID:

call for the preservation of social life.

same. 2. Recipient: a. Individual – rights of individuals. b. Collective – rights of the society which

1. Provided by law which is made

cannot be enjoyed without the company

urgent preservation of public good is

of others. 3. Aspect of Life: a. Civil – rights enforced at the instance of

needed. 3. Does not exceed what is strictly

private individuals for the purpose of securing

them

the

enjoyment

and

happiness. b. Political – rights to participate in running the affairs of the government.

known to citizens 2. There is a state of emergency which

necessary to achieve the purpose. Categories of HR: 1. 2. 3. 4. 5. 6.

Fundamental Freedom in Political Rights Democratic Rights Mobility Rights Right to Life, Liberty and Security of the Person Legal Rights Rights of Equality

7. 8. 9. 10. 11. 12. 13.

Economic, Social and Cultural Rights Worker’s Rights Aboriginal Rights Reproductive Rights Protective Rights in Armed Conflicts Right to Self-determination Minority Group Rights

-

society. 7. Utilitarian Theory - Promotion of greatest good for greatest -

CHAPTER 2 Sources of HR: 1. Religious or Theological Approach - Since rights come from Divine source, they are inalienable and cannot be denied by -

HR existed as means of social control. HR existed to serve the social interest of the

mortal beings. Theology is the basis of HR. Dignity of human person is realized through

love of fellowmen. 2. Natural Law Theory - Originated from the Stoic and elaborated by

number. Requires the government to maximize the

total net sum of ctizens. 8. Theories of Justice - Serves the ends of justice. - Liberalities of individual can be achieved -

only in a just society. There is no justice in a community where

-

there are social and economic inequalities. One of fairness are to be equally distributed

for the common good. 9. Theory based on Equality and Respect of Human Dignity - Recognition of individual rights in the

-

Greek philosophers. Perceives that the conduct of men must

-

always conform to the law of nature. Must be in accordance with nature which is

-

eternal. Natural Law – embodies those elementary

for general welfare. 10. Theory Based on Dignity of Man - Value Oriented Approach – HR means

principles of justice which there is right and

sharing of values of all identified policies

-

just. Scholastic Natural Law – right reason in

-

accordance with the law of God. Whatever is disturbing to social harmony is

-

wrong and unjust. Characteristic: leaves vague what is part of the

law

of

nations

inalienable. 3. Historical Theory - HR developed -

and

is

therefore

evolutionary

the

common

process

without

any

and what the officials have promulgated. HR is found only by enactment of a law with

sanctions attached. 5. Theory of Marxism - Interest of the society over an individual -

thus government intervention is necessary

-

upon which HR depend on. Ultimate Goal – World community where there is democratic sharing and distribution of values.

Human Rights as an International Concern and standards of the HR were proclaimed.

through

arbitrary will of any authority. 4. Positivists Theory - All rights and authority comes from the state -

enjoyment of the basic freedoms. Treatment of the government equally to all,

Universal Declaration of Human Rights – basic norms

consciousness of men. HR existed through a gradual, spontaneous and

-

man’s interest. Individual freedom is recognized only after

the interest of society is served. 6. Sociological Approach

International Convention on Civil and Political Rights – amplified

the

HR

principles

in

Universal

Declaration. International Covenant on Economic, Social and Cultural Rights – further broadened the scope of the Universal Declaration. Civil and Political Rights – Bill of Rights CHAPTER 3 Art. 13 UN Charter – Directs GA to initiate studies and recommendations for the purpose of assisting in the realization of HR and fundamental freedom.

Art. 55 (c) UN Charter – universal respect for an

HR Committee – implement the Covenant on Civil and

observance of HR and fundamental freedoms.

Political rights.

Art. 56 UN Charter – clear legal obligation of all members to pledge themselves and take joint

Hindrance in the Implementation of HR Instruments: -

and separate action in cooperation of the

to intervene in matters within the domestic

Organization for the advancement of Art. 55 (c).

jurisdiction of any state or shall require members

Art. 62(2) UN Charter – Economic and Social Council

to submit such matters to settlement under the

may make recommendations for the purpose of

present Charter; but this principle shall not

promoting respect for observance for HR and fundamental

freedom

for

all.

Art. 2, par. 7 of the UN Charter: Nothing contained therein shall authorize the UN

prejudice

Prevent

the

application

of

enforcement

measures under Chapter VII.

discrimination and to protect the rights of minorities. Art. 76 UN Charter – Trusteeship System to encourage and for fundamental freedom for all without distinction as to race, sex, language or religion and

to

encourage

recognition

of

interdependence of the people of the world. UN Commission on HR: -

Established by the Economic and Social Council Deals with all aspects of HR issues involving the participation of all sectors of the international

-

committee. Takes tasks and investigations assigned by the

CHAPTER 4 Sources of HR laws: 1. International Conventions 2. International Custom 3. General Principles recognized

empowered to undertake studies and to make recommendations

to

protect

rights

minority

prevent and

discrimination, fundamental

freedoms.

the

Community of Nations 4. Judicial Decisions and the teachings of the most highly qualified publicists. Treaty – legally binding written agreement concluded between the States. Protocol – supplement or subsequent agreement relative

GA and Economic and Social Council. Sub-commissions of independent experts – elected and

by

to the existing treaty. NOTE: Consent of the State must be EXPRESS thru: 1. Ratification 2. Approval 3. Acceptance Doctrine of Pacta Sunt Servanda - State is bound to

NOTE: -

Declaration serves as norms to serve standards

-

of achievement of whole nations. UDHR did not direct its members to enforce

-

them. No sanctions or enforcement.

International Bill of Rights – composed of: 1. Universal Declaration of HR 2. International Covenant on Civil and Political Rights 3. International Covenant on Economic, Social and Cultural Rights Committee on Economic, Social and Cultural Rights – established by Economic and Social Council to review State parties in implementing ECOSOC.

faithfully comply with the treaty after ratification. Q: When Liability of the State Arise? A: Only where there is BF on the part of the State, in HR treaties, there can be liability even in absence of BF. Core International HR Treaties: 1. ICCPR 2. ICESCR 3. Convention Against Torture and Other Cruel, Inhuman

and

Degrading

Treatment

or

Punishment (CATOCIDTP) 4. International Convention on the Elimination of All Forms of Racial Discrimination (ICEAFRD) 5. Convention on Rights of the Child (CRC)

6. Convention on Elimination of All Forms of

Actio Popularis – prosecution of jus cogens crime may

Discrimination Against Women (CEAFDAW) 7. International Convention on the Protection of

be initiated by another for the benefit of another

Rights of All Migrant Workers and Members of their Families (ICPRAMWMF) 8. International Convention for Protection of All Persons

for

Enforced

Disappearances

(ICPAPED) 9. International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities (ICPPRDP) Requisites to be a Customary Law:

through this complaint. Rule of procedure in bringing a suit on another’s behalf. International and regional tribunals: 1. International Courts of Justice – Only member states may file complaints. Composed of 15 judges for terms of 9 years elected by GA and SC. Exercises jurisdiction in two cases: a. Contentious cases b. Advisory proceedings

1. The objective element amounts to settled

Barcelona Traction Case Doctrines:

practice of the State 2. The subjective element consist a belief that this

a. State can bring the case for the benefit of a

practice is rendered obligatory by the existence of a rule of law requiring it.

expanding

Jus Cogens – principle of non-use of force, thus if UN Charter and treaty are not applicable, ICJ may

obligations. 2. International

1. Peremptory norm of general international law 2. Accepted and recognized by the international community 3. No derogation 4. Can be modified only by a subsequent norm of general international law having the same character. Obligatio Erga Omnes – obligations that are owed by States to all, regardless of the presence or absence of their assent to be bound thereby.

erga

Courts

omnes

(ICC)

–

a. Crimes against humanity (terrorism) b. War crimes c. Genocide d. Crimes of aggression 3. Ad hoc tribunals 4. Regional Courts: a. European Courts of HR - Individuals may bring a suit directly. b. Inter-American Court of HR - Individuals are granted standi

If the State violates a treaty with another State agreement

regarding

trade,

state

that

THE CONTRACTING STATES. HR laws are involved, all states hall have a legal in

their

protection,

for

they

are

obligations owed by the State to community of States.

in

judicio,

locus

however,

a

Declaration of Acceptance by the party

Convention

infringement is a PRIVATE MATTER BETWEEN

interest

Criminal

of

and

Cases may be tried:

and the treaty only pertains, for instance, to their

-

meaning

recognizing

court.

ELEMENTS:

bilateral

the

dictum

independent permanent international criminal

still rule on the case.

-

corporation. b. Made an obiter

c.

to is

American

necessary

to

exercise jurisdiction. African Court of H and People’s R - Non-victims may bring the suit in

behalf of victims. 5. Hybrid or internationalized courts – courts mixed of domestic and international, both in the judges

Universal Jurisdiction – State may prosecute a crime

and staff as well as the laws applied, but they

elsewhere when the crime involved is a jus

either are integrated in the domestic judicial

cogens.

system or appended to it.

1. Secure

Chapter 1 – Purpose: international

peace

and

security

harm

(self-

torture (excluded as evidence) b. Doctrine of Poisonous Tree – evidence

(Diplomacy) 4. Center for harmonization in actions of nations Chapter 2 – Members

obtained illegally is not admissible to courts. Right Against Torture

Chapter 3 – Organs:

Torture – any act by which severe pain or

GA SC Trusteeship ICJ Secretariat FCOSOF

suffering,

physical

or

mental,

is

intentionally inflicted on a person. Acts Constituting Cruel, Inhuman – degrading acts NOTE:

Chapter 6 – How UN settles disputes?

Non-derogable – state cannot take such right even at

Seek solution by: a. b. c. d. e.

physical

and punish trafficking in persons specially w&c EXCLUSIONARY RULE: a. When the confession is obtained legally thru

(Peace) 2. Develop friendly relations (HR) 3. International cooperation in solving problems

1. 2. 3. 4. 5. 6.

any

preservation) 2. Does not include right to die. 3. Trafficking – modern day slavery (exploitation) 4. Palerno Protocol – protocol to prevent, suppress

UN CHARTER 1. Maintain

from

state of war or emergency

Negotiation Inquiry Mediation Arbitration Others

Right to Effective Judicial Remedy 1. Must be just, accessible, free from corruption and influence and speedy but with quality. 2. 3 Most Dangerous Enemies of Fairness a. Corruption b. Ignorance c. Arrogance

Chapter 9-10 – Economic Social Function Chapter 12 – Trusteeship Chapter 14 – ICJ

Access to Justice 1. Availability of legal assistance to the poor (pro

CHAPTER 5

bono) 2. PAO and Department of Justice Action Center 3. Availability of information on where and how to

UDHR: 1. Resolves 2. Not a law passed by UN 3. Not legally binding but

is

practiced

and

recognized by countries. Jus Cogens – State cannot validly enter a treaty to the controversy. It cannot be changed or disobeyed. Equality and Equity 1. Every human is entitled regardless of his sex, race, and religion. 2. ELEMENTS OF EQUAL PROTECTION LAW: a. Based on Substantial distinction b. Germane to the purpose of the law c. Not limited to existing conditions d. Apply equally to each members of the sense class. 3. Rights should be subject to valid rights. Right to Life

get legal assistance Judicial Writs 1. Writ of Habeas Corpus – judge to another detaining a person, commanding to produce the body of the prisoner at designated time and place. 2. Writ of Amparo – extralegal killings and enforced disappearances. Remedy whose rights to life, liberty and security is violated or threatened with violation by an unlawful act or omission. 3. Writ of Habeas Data – rights to privacy in life, liberty or security is violated or threatened. Right to be Presumed Innocent Rights:

1. Informed 2. Prepare defense and to communicate with 3. 4. 5. 6. 7.

Right to Nationality

counsel of his own choosing Tried without delay Tried in his presence and defend himself Examine and obtain witness Free assistance of an interpreter Not be compelled to be a witness against

Right to Marry and Found a Family

himself

Right to Property

Right Against Ex Post Facto Law and Bill of Attainder

Freedom of Thought, Conscience and Religion

1. No crime, no punishment without previous penal law) Treatment of the Law: a. Holds the person liable for an act or omission that was not punished at the time of commission. b. Impose a penalty heavier than the one that was applicable at the time of commission. Right to Privacy 1. Evidence obtained in violation of this shall render the evidence inadmissible Freedom of Movement 1. Exceptions: a. Freedoms curtailed or restricted upon lawful order of the court b. In interest of national security, public safety or health.

Freedom to Practice or Manifest Religious Beliefs Freedom of Expression Freedom of Assembly and Association Right to take Part in the Government Right to Social Security Coverage of the SSM: a. b. c. d. e. f. g. h. i.

Health care Sickness Old age Unemployment Employment injury Family and child support Maternity Disability Orphans and survivors

Right to Rest and Leisure Right to Adequate Standard of Living Right to Education Right to Enjoy Economic, Social and Cultural Life

Right to Seek Asylum 1. Non-refoulement

1. Acquisition and Change of Nationality a. Jus Sanguinis (by blood) b. Jus Soli (by place of birth) c. Naturalization

Right to Self-determination –

political

offenders

refugees 2. Extradition – criminal offenses 3. Deportation – immigration offenses

and

Right to Health