Human Rights Reviewer

 

CHAPTER 1

securing

Human Rights – Rights  – rights  rights which are inherent in our nature,

happiness. b.

and without which, cannot live as human

c.

Dignity of Man  –  –   derived right of every person to free

6.

life and right to dignity as a human being)

financial security.

Fundamental  –  –   life

without

it

would

d.

be

Inalienable  –  – cannot  cannot be rightfully taken away as

4.

Struggle for Recognition: a.

First generation  –  –   derives from 17th  to

Imprescribable  – cannot Imprescribable –  cannot be lost thru passage of

18th  century of English, American and

time. (freedom of thought)

French

Indivisible  – incapable Indivisible –  incapable of division and cannot be

abstention rather than intervention of the

denied though availed.

government.

Interdependent

 –  –  

fulfillment

economic cannot

c.

Natural  –  –   God-given rights which are

5.

Third

a.

rights

which

generation  –  –   covers collective

Absolute or non-derogable – non-derogable  – cannot  cannot be:

good. Unwritten but prevail as norms.

i. Suspended

Constitutional  –  –   rights conferred and

ii. Taken away

protected by the Constitution which

iii.



Statutory  –  –   rights provided by the law

body which can also be abolished by the same. Recipient:

Restricted/limited

Even in:   National emergency  



and promulgated by the law making

3.

cultural

Derogability

cannot be taken away by the law making body.

2.

and

rights.

acknowledged by everyone as morally

c.

favors

conceives HR in positive terms.

Source:

b.

which

originated from the socialist tradition and

be

Classification of Rights:

a.

revolutions

b. Second generation  –  –   covers social,

Universal  –  –   irrespective of their origin, status or

materialized without the realization of another.

1.

Cultural  – rights Cultural –  rights t ensure preservation of national culture.

condition or place where they live. 7.

Economic and Social  –  –   rights conferred

ensures their well-being, happiness and

an individual.

5.

Political  – rights Political –  rights to participate in running

Inherent  –  –   not granted by any person. (right to

meaningless. (freedom of thought and religion)

4.

and

social and economic development which

Characteristics of HR:

3.

enjoyment

by law which enables them to achieve

development of his personality.

2.

the

the affairs of the government.

beings.

1.

them

Government

invokes

national

security b.

Derogable or can-be-limited  –  –   may be suspended,

limited

or

restricted

depending on the circumstances which

a.

Individual – rights Individual –  rights of individuals.

call for the preservation of social life.

b.

Collective  –  –   rights of the society which

REQUISITES FOR RESTRCITIONS TO

cannot be enjoyed without the company

BE VALID:

of others. Aspect of Life: a.

Civil  – rights Civil –  rights enforced at the instance of private individuals for the purpose of

1.

Provided by law which is made known to citizens

 

2.

-

There is a state of emergency which

wrong and unjust.

urgent preservation of public good is -

needed. 3.

Whatever is disturbing to social harmony is

Characteristic: leaves vague what is part of

Does not exceed what is strictly

the

necessary to achieve the purpose.

inalienable.

Categories of HR:

3.

law

of

nations

and

-

HR

developed

through

Fundamental Freedom in Political Rights

2.

Democratic Rights

3.

Mobility Rights

4.

Right to Life, Liberty and Secu Security rity of the P Person erson

and

5.

Legal Rights

arbitrary will of any authority.

6.

Rights of Equality

7.

Economic, Social and Cultural Rights

8.

Worker’s Rights  Rights 

9.

Aboriginal Rights

-

4.

HR existed through a gradual, spontaneous evolutionary

process

without

any

All rights and authority comes from the state 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 man’s interest.  interest. 

13. Minority Group Rights CHAPTER 2

Individual freedom is recognized only after the interest of society is served.

6.

Sociological Approach

Religious or Theological Approach

-

HR existed as means of social control.

-

-

HR existed to serve the social interest of the

Since rights come from Divine source, they

society.

are inalienable and cannot be denied by mortal beings.

2.

common

Positivists Theory -

12. Right to Self-determination

1.

the

consciousness of men.

10. Reproductive Rights

Sources of HR:

therefore

Historical Theory

1.

11. Protective Rights in Armed Conflicts

is

-

Theology is the basis of HR.

-

Dignity of human person is realized through

7.

-

-

Originated from the Stoic and elaborated by

8.

Greek philosophers.

-

Serves the ends of justice.

Perceives that the conduct of men must

-

Liberalities of individual can be achieved only in a just society.

-

Must be in accordance with nature which is

-

Natural Law  –  –   embodies those elementary

-

accordance with the law of God.

One of fairness are to be equally distributed for the common good.

principles of justice which there is right and  just. Scholastic Natural Law  –  –   right reason in

There is no justice in a community where there are social and economic inequalities.

eternal. -

Requires the government to maximize the total net sum of ctizens.

Theories of Justice

always conform to the law of nature. -

Promotion of greatest good for greatest number.

love of fellowmen. Natural Law Theory -

Utilitarian Theory

9.

Theory based on E Equality quality and Respect of Human Dignity -

Recognition

of

individual rights

enjoyment of the basic freedoms.

in the

 

-

Treatment of the government equally to all,

and

thus government intervention is necessary

interdependence of the people of the world.

10. Theory Based on Dignity of Man

-

encourage

recognition

of

UN Commission on HR:

for general welfare.

-

to

Value Oriented Approach  –  –   HR means

-

Established by the Economic and Social Council

-

Deals with all aspects of HR issues involving the

sharing of values of all identified policies

participation of all sectors of the international

upon which HR depend on.

committee.

Ultimate Goal  –  –   World community where

-

Takes tasks and investigations assigned by the GA and Economic and Social Council.

there is democratic sharing and distribution

Sub-commissions of independent experts  –  –   elected and

of values.

empowered to undertake studies and to make Human Rights as an International Concern

recommendations

Universal Declaration of Human Rights  –  –   basic norms

protect

amplified

the

HR

principles

in

Universal

prevent

rights

and

discrimination, fundamental

freedoms.

and standards of the HR were proclaimed. International Convention on Civil and Political Rights  –  –  

minority

to

NOTE: -

Declaration serves as norms to serve standards of achievement of whole nations.

Declaration. International Covenant on Economic, Social and Cultural

-

them.

Rights  –  –   further broadened the scope of the -

Universal Declaration.

UDHR did not direct its members to enforce

No sanctions or enforcement.

International Bill of Rights – Rights  – composed  composed of:

Civil and Political Rights – Rights  – Bill  Bill of Rights

CHAPTER 3

1.

Universal Declaration of HR

2.

International Covenant on Civil and Political Rights

 Art. 13 UN Charter  –  –   Directs GA to initiate studies and recommendations for the purpose of assisting in

3.

Cultural Rights

the realization of HR and fundamental freedom.  Art. 55 (c) UN Charter  –  –   universal respect for an

Committee on Economic, Social and Cultural Rights  –  –   established by Economic and Social Council to

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

review State parties in implementing ECOSOC. HR Committee  –  –   implement the Covenant on Civil and Political rights.

and separate action in cooperation of the Organization for the advancement of Art. 55 (c).  Art. 62(2) UN Charter  –  –   Economic and Social Council

International Covenant on Economic, Social and

Hindrance in the Implementation of HR Instruments: -

Art. 2, par. 7 of the UN Charter:

may make recommendations for the purpose of

Nothing contained therein shall authorize the UN

promoting respect for observance for HR and

to intervene in matters within the domestic

fundamental

Prevent

 jurisdiction of any state sta te or shall require requir e members

discrimination and to protect the rights of

to submit such matters to settlement under the

minorities.

present Charter; but this principle shall not

freedom

for

all.

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

prejudice the application measures under Chapter VII.

of

enforcement

 

CHAPTER 4 

9.

Promotion of the Rights and Dignity of Persons

Sources of HR laws: 1.

International Conventions

2.

International Custom

3.

General

Principles

with Disabilities (ICPPRDP) Requisites to be a Customary Law:

recognized

by

the

1.

The

objective

element

amounts

to

settled

practice of the State

Community of Nations 4.

International Convention on the Protection Protection and

Judicial Decisions and the teachings of the most

2.

The su subjective bjective element consist a belief that this practice is rendered obligatory by the existence

highly qualified publicists.

of a rule of law requiring it.

Treaty  –   –  legally binding written agreement concluded

Jus Cogens  –  –   principle of non-use of force, thus if UN

between the States.

Charter and treaty are not applicable, ICJ may

Protocol – Protocol  – supplement  supplement or subsequent agreement relative

still rule on the case.

to the existing treaty.

ELEMENTS:

NOTE: Consent of the State must be EXPRESS thru: 1.

Ratification

2.

Approval

3.

Acceptance

1.

Peremptory norm of general international law

2.

Accepted and recognized by the international community

Doctrine of Pacta Sunt Servanda - State is bound to

3.

No derogation

4.

Can be modified only by a subsequent norm of general international law having the same

faithfully comply with the treaty after ratification.

character.

Q: When Liability of the State Arise?  A: Only where there is BF on the part of the State, State , in HR

Obligatio Erga Omnes  –  –   obligations that are owed by

treaties, there can be liability even in absence of

States to all, regardless of the presence or

BF.

absence of their assent to be bound thereby. -

Core International HR Treaties:

If the State violates a treaty with another State

1.

ICCPR

and the treaty only pertains, for instance, to their

2.

ICESCR

bilateral

3.

Convention Against Torture and Other Cruel,

infringement is a PRIVATE MATTER BETWEEN

Inhuman

THE CONTRACTING STATES.

4.

and

Degrading

Treatment

or

Punishment (CATOCIDTP) International Convention on the Elimination of All

-

agreement

regarding

trade,

that

HR laws are involved, all states hall have a legal interest in their protection, for they are

Forms of Racial Discrimination (ICEAFRD)

obligations owed by the State to community of

5.

Convention on Rights of the Child (CRC)

States.

6.

Convention on Elimination of All Forms of

7.

Discrimination Against Women (CEAFDAW)

elsewhere when the crime involved is a jus

International Convention on the Protection of

cogens.

Rights of All Migrant Workers and Members of

8.

Universal Jurisdiction  –  –   State may prosecute a crime

 Actio Popularis  –  –   prosecution of jus cogens crime may

their Families (ICPRAMWMF)

be initiated by another for the benefit of another

International Convention for Protection of All

through this complaint. Rule of procedure in

Persons for (ICPAPED)

Enforced

Disappearances

bringing a suit on another’s behalf.  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

Chapter 1 – 1 – Purpose:  Purpose:

SC.

1.

Exercises jurisdiction in two cases: Contentious cases

b.

Advisory proceedings

Made

an

expanding

the

dictum

meaning

recognizing of

erga

and

omnes

(Diplomacy) Center for harmonization in actions of nations

Chapter 2 – 2 – Members  Members Chapter 3 – 3 – Organs:  Organs:

2.

SC

independent permanent international criminal

3.

Trusteeship

court.

4.

ICJ

5.

Secretariat

6.

FCOSOF

Criminal

Courts

(ICC)

 –  –  

Cases may be tried: a.

Crimes against humanity (terrorism)

b.

War crimes

c.

Genocide

d.

Crimes of aggression

Chapter 6 – 6 – How  How UN settles disputes? Seek solution by: a.

Negotiation

3.

Ad hoc tribunals

b.

Inquiry

4.

Regional Courts:

c.

Mediation

d.

Arbitration

e.

Others

a.

European Courts of HR -

Individuals

may

bring

a

suit

Chapter 9-10 – 9-10 – Economic  Economic Social Function

directly. b.

Chapter 12 – 12 – Trusteeship  Trusteeship

Inter-American Court of HR -

Individuals standi

in

are

granted

judicio,

locus

however,

Declaration of Acceptance by the

CHAPTER 5

state party Convention is

UDHR: 1. Resolves

to American necessary to

c.  African Court of H and People’s R  

2.

Not a law passed by UN

3.

Not

legally

binding

but

is

practiced

Jus Cogens  –  –   State cannot validly enter a treaty to the

Hybrid or internationalized courts courts –  – courts  courts mixed

controversy. It cannot be changed or disobeyed.

of domestic and international, both in the judges

Equality and Equity

and staff as well as the laws applied, but they

1.

Every human is entitled regardless of his his sex, race, and religion.

either are integrated in the domestic judicial system or appended to it.

and

recognized by countries.

Non-victims may bring the suit in behalf of victims.

5.

Chapter 14 – 14 – ICJ  ICJ

a

exercise jurisdiction.

-

security

International cooperation in solving problems

GA

International

and

3.

1.

obligations. 2.

peace

Develop friendly relations (HR)

4. obiter

international

2.

State can bring the case for the be benefit nefit of a corporation.

b.

Maintain (Peace)

a.

Barcelona Traction Case Doctrines: a.

UN CHARTER

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

2.

disappearances. Remedy whose rights to life,

sense class. 3.

liberty and security is violated or threatened with

Rights should be subject to valid rights.

violation by an unlawful act or omission.

Right to Life 1.

Writ of Amparo – Amparo  – extralegal  extralegal killings and enforced

Secure

fr from om

any

physical

harm

(self-

3.

Writ of Habeas Data  –  –   rights to privacy in life, liberty or security is violated or threatened.

preservation)

Right to be Presumed Innocent

2.

Does not include right to die.

3.

Trafficking – modern Trafficking –  modern day slavery (exploitation)

4.

Palerno Protocol Protocol –  – protocol  protocol to prevent, suppress

1.

and punish trafficking in persons specially w&c

2. Prepare defense and to communicate with

Rights:

counsel of his own choosing

EXCLUSIONARY RULE: a.

b.

Informed

When the confession is obtained lega legally lly thru

3.

Tried without delay

torture (excluded as evidence)

4.

Tried in his presence and defend himself

Doctrine of Poisonous Tree  –  –   evidence

5.

Examine and obtain witness

obtained illegally is not admissible to courts.

6.

Free assistance of an interpreter

7.

Not be compelled to be a witness against

Right Against Torture

himself

Torture  –  –   any act by which severe pain or suffering,

physical

or

mental,

is

intentionally inflicted on a person.

Right Against Ex Post Facto Law and Bill of Attainder 1.

No crime, no punishment without previous penal law)

 Acts Constituting Cruel, Inhuman  –  –   degrading

Treatment of the Law:

acts

a.

NOTE:

omission that was not punished at the

Non-derogable  –  –   state cannot take such right even at

time of commission.

state of war or emergency b.

Right to Effective Judicial Remedy 1.

2.

that was applicable at the time of

and influence and speedy but with quality.

commission.

3 Most Dangerous Enemies of Fairness a. b.

Corruption Ignorance

c.

Arrogance

Right to Privacy 1.

Evidence obtained in violation o off this shall render the evidence inadmissible

Freedom of Movement 1.

Exceptions: a.

Availability of legal assistance to the poor (pro

2.

PAO and Department of Justice Action Center

3.

Availability of information on where and and how to get legal assistance

Freedoms curtailed or restricted upon lawful order of the court

bono) b.

In interest of national security, public safety or health.

Right to Seek Asylum 1.

Non-refoulement  –  –   political

Writ of Habeas Corpus  –  –   judge to another detaining a person, commanding to produce the

2.

refugees Extradition – criminal Extradition –  criminal offenses

body of the prisoner at designated time and

3.

Deportation – immigration Deportation –  immigration offenses

Judicial Writs 1.

Impose a penalty heavier than the one

Must be just, accessible, free from corruption

 Access to Justice 1.

Holds the person liable for an ac actt or

place.

offenders

and

 

Right to Nationality 1.

Acquisition and Change of Nationality a.

Jus Sanguinis (by blood)

b.

Jus Soli (by place of birth)

c.

Naturalization

Right to Marry and Found a Family Right to Property Freedom of Thought, Conscience and Religion 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.

Health care

b.

Sickness

c.

Old age

d.

Unemployment

e.

Employment injury

f.

Family and child support

g.

Maternity

h.

Disability

i.

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 Self-determination Right to Health