Human Right Notes “No cause is more worthy than the cause of human rights” UN Declaration on HR Education and Training Article 3- HR education “concerns all ages” and “all levels” Article 8 of the International Court of Justice, Sources of HR Laws: -international Conventions -International Customs; conviction that HR is right and good -General Principles of law recognized by the community of nations Secondary Sources -Judicial Decisions -teachings of the most highly qualified publicists Sources of HR jurisprudence in the Philippines -constitution -legislative enactments -Supreme Court rules, rulings and orders -executive issuances Constitutional Provisions on Human Rights *constitution of government-mechanism for the enforcement of rights *constitution of liberties- mostly Bill of Rights -Art. II, Sec. 11 -Art. III -Art. IV- Citizenship Art. V- Suffrage Art. XIII- Social Justice and Human Rights Art XIV- Education Art XV- Family Art XVI- Flag Ceremony kasi daw freedom of expression. Human Rights Preamble of the UDHR mentions the “inherent dignity and of the equal and inalienable rights of all members of the human family” -rights which necessarily springs from being a member of the human species -includes not only the relationship between men and government, or civil and political rights, but also economic, social, and cultural rights, to the right to development and a peaceful, clean environment. -respect each other Attributes of HR 1. Universal-apply to all regardless of race, culture, age, sex, creed 2. Inherent-not conferred by any authority; life, liberty & property; pursuit of happiness (RP vs. Sandiganbayan) 3. Equal- UDHR Art 1, “All human beings are born free and equal in dignity and rights” 4. Inalienable-cannot be taken from or given away by any human. 5. Fundamental-basic right, no need for statutory authority 6. Interdependent-exercise of HR cannot be had without realization of another 7. Imprescriptible-cannot be lost even by long passage of time; laches does not apply Origin of HR 1. Philosophical-sabi ni manong John Locke, HR=Natural Law 2. Historical-After the 2 world wars, everyone realized the importance of HR Bar Question How do you relate HR to other rights?

1. Constitution 2. Civil 3. Political 4. Socio-economic 5. Cultural Rights 50 SCRA 1, Phil Mills vs. Mills (di ko maintindihan sulat ni Zoë, not sure dito), nagrally ung mga employees, tinaggal sila ng employer -hierarchy of rights -the right of the company to enforce disciplinary action and to impose rules=civil rights -such is inferior to Human rights=freedom to organize, freedom of expression Are Human Rights Absolute? No, Subject to 1) police power and 2) principle of abuse of rights Human Rights Instruments 1. Laws for the promotion and protection of HR 2. local and international decisions of the court Rules of Interpretation 1. any statute in derogation of right-against the state and liberally in favor of person possessing the right 2. HR laws should be construed in harmony with other laws Three Generations of Human Rights (sabi ni Sir 4 na daw ngayon) Generation- the succession of periods when societies and governments began recognizing a set of rights, though not necessarily in the order of man’s priority, for man’s priority was more economic rather than political. 1. First Generation -political rights and civil liberties found in the International Covenant on Civil and Political Rights (ICCPR) -negative rights -prohibit the doing of something -“no one shall” rights 2. Second Generation -mostly economic, social, and cultural rights found in the International Convention on Economic, Social, and Cultural Rights (ICESCR) -positive rights -enjoin the States to perform an act or do something for the enjoyment of these rights by the people -“State shall” rights 3. Third Generation -newly emerging rights -solidarity rights 4. Human Rights of the Future Generation (accdg. to sir) State as guarantor of HR -the State shall see to it that members of the society acknowledge its authority and that it governs the people properly -it must recognize that people have rights and freedom that are inherent in them -it may be held accountable when people are deprived of their rights by its action or inaction -use Police Power Rule of Law vs. Rule By Law Rule of Law-the law is preeminent and can serve as a check against abuse of power Rule By Law-law serves as a mere tool for a government that suppresses in a legalistic fashion Rules- set of prescribed regulations

Rule- authority for good governance State Responsibility -based on the social contract theory -the state has the responsibility to protect its citizensagainst HR violations. -including Aliens within its jurisdiction Attributes of State Responsibility 1. violations by state actors or direct responsibility 2. violations by private individuals or indirect responsibility, vicarious or secondary Violations by “State Actors” State actors - state agents or public officers; persons acting on behalf of a governmental body -States are abstract entities so they act through state actors; when a state actor violates HR, it is deemed a violation by the state (Articles of State Responsibility) Violation by Private Individuals - punished under the criminal law system -Requisites in order that non-state actors can be properly dealt with: 1. the State must enact a law (Congress) 2. the State must provide adequate judicial remedies (Judiciary) When can State be held liable by HR violations of non-state actors? -if it failed to do nos. 1 & 2 International State Responsibility -whenever a State ratifies a treaty, it commits itself not only to observe the standards set forth in the treaty and see to it that its agents do likewise, but also to enact domestic laws and regulations in order to hold private individuals accountable. International State Responsibility for wrongful acts -Art 1 of Articles on Responsibility of States for Internationally wrongful Acts, Every internationally wrongful act of a State entails the international responsibility of that State. -Art. 2 provides the elements 1. the act or omission is attributable to the State under international law 2. the conduct constitutes a breach of international obligation of the state Can a state be held liable for the acts of another state? Yes, through Derivative Responsibility. Derivative Responsibility -when the state assisted or allowed the HR violation to happen -requisites are: 1. the State aids and assists in the commission by another of the internationally wrongful act 2. the state exercises control and direction over the commission of the act. Philippine Cases on State Responsibility People vs. Andre Martin -if the unwarranted search and seizure was made by a private individual, the evidence is still admissible. -what is prohibited is the unlawful search and seizure by government agents/public officers/state actors Walker vs. State -search and seizure clauses are restraints upon the government and its agents, and not upon private individuals Oposa vs. Factoran -Doctrine of Intergenerational Responsibility -HR to clean and healthy environment

Writ of Kalikasan -a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces (Rule 7, Part III, Am-09-6-8-SC) Pacta Sunt Servanda -once a treaty is ratified, the State is bound to faithfully comply with its treaty obligations -ratification, approval, or acceptance -treatises and other international obligations shall be complied with in good faith International Customary Law -Elements: 1. objective elements amounting to settled practice of States 2. subjective elements consisting of a belief that this practice is rendered obligatory by the existence of a rule requiring it Jus Cogens or peremptory (meaning prevent) norms -compelling law -group of fundamental norms superior to IL and need not be agreed upon by States in order to form part of their jurisprudence -slavery, genocide, racial discrimination -elements are: (Nicaragua vs. USA) 1. it is a peremptory norm of IL 2. it is accepted and recognized by the International community 3. there can be no derogation therefrom 4. it can be modified only by a subsequent norm of general international law having the same character Obligatio Erga Omnes (Towards all, towards everybody) -usually arise from jus cogens rights -Owed by the States to all, regardless of the presence or absence of the State’s assent to be bound thereby. -owed by the State to the community of States Universal Jurisdiction -the State may prosecute a crime committed elsewhere if such crime was a jus cogens crime. -HR does not know any borders Actio Popularis -rule of procedure in bringing a suit another’s behalf -prosecution of jus cogens may be initiated by another person for the benefit of another -NGO’s of international communities may be allowed to sue for and behalf of a victim Doctrine of Incorporation vs. Doctrine of Transformation

Doctrine of Transformation

Doctrine of Incorporation

Needs local legislation

No need for local legislation

Deemed incorporated as part of the law of the land

Article II, Sec.2, 1987 Consti

International Human Rights Law are generally accepted principles of International law

International HR Law -deals with the protection of individuals and groups against violations of their governments of their internationally guaranteed rights Law- obligatory rule of conduct enforced by the State or government which enforces sanctions and punishment in case of violations Obligatory Theories 1. Jus Cogens 2. Obligation Erga Omnes International Bill of Rights -internationally guaranteed HR -refers to 3 main instruments: 1. Universal Declaration of Human Rights (UDHR) -declaration consisting of a Preamble and 33 articles setting forth the HR & fundamental freedom that human beings are entitled without discrimination At first was a mere aspiration but eventually became a binding new rule of international customary law Not a treaty Treaty-an international agreement concluded between states in a written form governed by International Laws 2. International Convention on Civil and Political Rights (ICCPR) 3. International Convention on Economic, Social, and Cultural Rights (ICESCR) Rights and Freedoms Under the International Bill of Rights

1. Equality in dignity and rights -Human dignity:sense of dignity and self-worth -Equality: every human beings has the same set of rights

2. Right to life, liberty and security People vs. Echegaray Vizconde Massacre -ICCPR encourages states to pay compensation for those wrongfully convicted -RA 7309 an act creating the board of claims Can the right to life be waived? -no (Pretty vs. UK) The right to liberty is not absolute and may be restricted on valid grounds: -imprisonment -insane Marcos vs. manglapus

3. Right against slavery Slavery-status of a person over whom the right of ownership is attached -human trafficking, also called modern-day slavery the important factor is exploitation Exploitation- action of treating someone unfairly to benefit from their work International Covenant considered as slavery the ff: a) debt bondage b)serfdom-bondage to the soil c) force marriage d) wife trading e)wife inheritance f) child trafficking

the right to slavery is jus cogens, a higher level human right. States cannot validly enter to the contrary. Trafficking in persons- RA 9208 Transnational crime-effect of the crime crosses national borders.

4. Right against torture RA 9745-Anti-torture act of 2009 Torture- action/practice of inflicting severe pain on someone as punishment or to force them to do or say something as a pleasure for the person inflicting the pain

5. Right to equal protection Equal protection means the right to equality before the law. It does not mean that each and every person shall be treated in the same manner at all times, regardless of differences of class and circumstances. Reasonable qualification: a) it must be based on substantial distinctions which make real differences b) it must be germane to the purpose of the law c)it must not be limited to existing conditions only d)it must apply equally to all members of the class Racial Discrimination- a person is treated less favorably than another person of similar situation because of race, color, descent, national or ethnic or immigrant status

6. Right to effective judicial remedy a. Access to justice Availability of legal assistance to the poor b. Judicial writs

Writ of habeas corpus Writ of amparo Writ of kalikasan

Requirement for an effective judicial remedy: a) it should be available b) accessible c) dispatch, “justice delayes is justice denied”

7. Right to be presumed innocent The state has the resources to prosecute the accused. This rule is then in order to overcome the scale of justice -equipoise rule: where the evidence on an issue of fact is in equipoise (evenly balanced), or there is doubt on which side the evidence preponderates, the party having the burden of proof loses.

8. Right against ex post facto and bill of attainder An ex post facto law is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.

9. Right to privacy The right to be left alone Legal personality- the right to be recognized as a person before the law. -consti proci on unreasonable searches and seizures

10. Freedom of movement Exile is not allowed as form of punishment ART 12 ICCPR Marcos vs. Manglapus Includes the ff: a) right to travel within the country

b) right to leave the country c) right to change one’s residence d) right not to be arbitrarily deprived of the right to enter or return to one’s own country

11. Right to seek asylum Non-refoulment for political offenses Extradition for criminal offenses Deportation for immigration offenses -the above terms refer to the sending of a person to a country which could be his own or not

12. Right to a nationality Citizenship is the status of a person recognized under the custom or law of a state that bestows on that person (called a citizen) the rights and the duties of citizenship. Jus soli is the right of anyone born in the territory of a state to nationality or citizenship Jus sanguinis (Latin: right of blood) is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state

13. Right to marry and family 14. Right to property 15. Freedom of thought, conscience, and religion

2 guarantees in the consti -Non-establishment clause -Freedom of religious profession and worship

16. Freedom to practice or manifest religious beliefs 17. Freedom of expression 18. Freedom of assembly and association 19. Right to social security 20. Right to work 21. Right to rest and leisure 22. Right to adequate standard of leaving 23. Right to education 24. Right to education 25. Right to enjoy, economic, social, and cultural life 26. Right of self-determination 27. Right to healt

Two theories on the domestic applicability of human rights law A) monist theory- international law automatically becomes domestic law, without need to enact a separate national law; doctrine of incorporation B) dualist theory- international law does not become obligatory to its citizens until the state passes a corresponding domestic law containing its provisions: doctrine of transformation International Application of IHRL The consent of a state to be bound in a treaty may be expressed by: a) signature -essentially lodged to the executive branch b) exchange of letters or notes c) Act of formal confirmation d) Reservation e) Interpretative declaration f) Modification g) Denunciation