[wcl] midterms notes (wip).pdf

7/27/2019 [WCL] Midterms Notes (WIP).pdf

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WOMEN, CHILDREN, AND THE LAWLESSON 1: BASIC PRINCIPLES OF HUMAN

RIGHTS AND INTERNATIONAL LAW

HUMAN RIGHTS, DEFINED:

(1) HDR definition: rights possessed by allpersons, by virtue of their common humanity,

to live a life of freedom and dignity.

Other definitions:

(2) UN definition: those rights which areinherent in our nature, and without which we

cannot live as human beings; human rights

and fundamental freedoms allow us to develop

and use our human qualities, intelligence,

talents and conscience, and to satisfy our

spiritual and other needs.

(3) PH CHR definition: those rights which aresupreme, inherent, and inalienable rights to

life, dignity, and self-development; the essence

of these rights makes man human.

BASIC CHARACTERISTICS OF HUMAN

RIGHTS:

(1) Inherent: they are not granted by any personor authority.

(2) Fundamental: without them, the life anddignity of man will be meaningless.

(3) Inalienable:a. cannot be rightfully taken away from

a free individual.

b.

cannot be given away or be forfeited.(4) Imprescriptible:a. do not prescribe.b. cannot be lost even if man fails to use

or assert them, even by a long passage

of time.

(5) Indivisible:a. not capable of being divided.b. cannot be denied even when other

rights have already been enjoyed.

(6) Universal:a. universal in application.b. applies irrespective of ones origin,

status, or condition or place where onelives.

c. without national border.(7) Interdependent: fulfillment/exercise of one

cannot be had w/o the realization of the other.

PUBLIC POLICY: system of laws, regulatory

measures, courses of action, and funding priorities

concerning a given topic promulgated by a

governmental entity or its representatives.

ABSOLUTE AND NON-ABSOLUTE RIGHTS

Absolute rights cannot be limited in any way, at any

time, for any reason. Absolute rights under the

ICCPR include:

(a) freedom from torture and other cruelinhuman, or degrading treatment or

punishment (A7)(b) freedom from slavery/servitude (A8[1],[2])(c) prohibition on genocide (A6[3])(d) freedom from prolonged arbitrary detention

(see A9[1])

(e) freedom from imprisonment for failure tofulfill a contractual obligation (A11)

(f) prohibition on retrospective operation of penalaws (A15)

(g) right to be recognized everywhere as a personbefore the law (A16)

(h) freedom from systematic racial discrimination(see A2[1], A26)

DEROGABLE AND NON-DEROGABLE RIGHTS:

Re: A4, ICCPR: Derogable rights are those which

states can suspend/restrict under certain

circumstances, to enable said state to respond to a

serious public emergency which threatens its life and

existence. Any derogation must be (1) for a limited

period of time, (2) proportionate to the emergency

and (3) non-discriminatory.

Any right that is absolute is also non-derogable, i.e

cannot be suspended even in a declared state ofemergency. In addition to the above enumeration on

absolute rights are more non-derogable rights:

(a) right to life (see A4[2])(b) freedom from medical/scientific

experimentation w/o consent (see A4[2])

(c) freedom of thought, conscience, religion (seeA4[2])

The following come not from the ICCPR but from the

HRC's General Comment 29:

(d) right of persons deprived ofliberty to betreated w/ humanity and respect for theinherent dignity of the human person

(e) some elements of the rights of personsbelonging to ethnic/religious/linguistic

minorities

(f) prohibition against taking hostagesabductions, or unacknowledged detention

(g) prohibition on propaganda for war andadvocacy of national/racial/religious hatred

constituting incitement to

discrimination/hostility/violence


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(h) prohinition against re-introduction of thedeath penalty if it has been abolished

INTERNATIONAL DECLARATIONS vs.

INTERNATIONAL CONVENTIONS:

INTERNATIONAL

DECLARATION

INTERNATIONAL

CONVENTION

Not legally bindingalthough they may bepolitically so as soft

law

Legally bindinginstrumentsconcluded under

international law

International treaties and even declarations can,

over time, obtain the status of customary

international law (see next page).

WHEN DOES A STATE BECOME A STATE-

PARTY TO AN INTERNATIONAL

AGREEMENT?

A treaty is an international agreement concluded

between states in written form and governed by

international law, whether embodied in a singleinstrument or in two or more related instruments and

whetever its particular designation.

A state becomes a state-party to a treaty by doing:

(a) Negotiation(b)Authentication(c) Expression of consent to be bound

By way of signature By way of exchange of instruments By way of ratification, acceptance, or

approval

WHEN IS A TREATY ENTERED INTO FORCE?

GR: Date agreed upon by the parties

XPN: If no date is indicated, once consent has been given

RE: ART. II, SEC. 2, 1987 CONSTITUTION:

WHAT ARE THESE GENERALLY ACCEPTED

PRINCIPLES OF INTERNATIONAL LAW?

Generally accepted principles of international law

refers to norms of general or customary international

law which are binding on all states (i.e., renunciationof war as an instrument of national policy, the

principle of sovereign immunity, a persons right to

life, liberty and due process, and pacta sunt servanda,

among others).

HOW DOES INTERNATIONAL LAW BECOME

PART OF THE LAW OF THE LAND?

(1) Transformation: before any rule or principleof international law can have any effect within

the domestic jurisdiction, it must be expressly

and specifically 'transformed' into municipa

law by the use of the appropriate

constitutional machinery (e.g. making

equivalent domestic legislation, ratification

etc.) thePhilippines follows the doctrine of

transformation in the case of treaties, by way

of the Constitutional ratification mechanism

c/o the Senate

(2) Incorporation: a country is bound bygenerally accepted principles of internationalaw, which are considered to be automatically

part of its own laws the Philippines follows

the doctrine of incorporation in case of

customary law (including treaties which have

reached custom status)

WHAT ARE THE REQUISITES FOR

CUSTOMARY INTERNATIONAL LAW TO BE

PRESENT?

(1) State practice (usus)(2) Opinio juris

WHO/WHAT DEEMS A PRINCIPLE AS

GENERALLY ACCEPTED?

Courts, both domestic and international, deem what

principles of international law are generally

accepted.

LESSON 2: INTERNATIONAL CONVENTIONS

ON HUMAN RIGHTS

UNIVERSAL DECLARATION ON HUMAN

RIGHTS: What follows is a simplified version of the

UDHR provisions specifically made for young people

(lels):

This simplified version of the 30 Articles of the

Universal Declaration of Human Rights has been

created especially for young people.

a. We Are All Born Free & Equal. We are alborn free. We all have our own thoughts and

ideas. We should all be treated in the same

way.

b. Dont Discriminate. These rights belong toeverybody, whatever our differences.c. The Right to Life. We all have the right tolife, and to live in freedom and safety.

d. No Slavery. Nobody has any right to make usa slave. We cannot make anyone our slave.

e. No Torture. Nobody has any right to hurt usor to torture us.

f. You Have Rights No Matter Where YouGo. I am a person just like you!

g. Were All Equal Before the Law. The law isthe same for everyone. It must treat us all

fairly.


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h. Your Human Rights Are Protected byLaw. We can all ask for the law to help us

when we are not treated fairly.

i. No Unfair Detainment. Nobody has theright to put us in prison without good reason

and keep us there, or to send us away from

our country.

j. The Right to Trial. If we are put on trial thisshould be in public. The people who try us

should not let anyone tell them what to do.k. Were Always Innocent Till Proven

Guilty. Nobody should be blamed for doing

something until it is proven. When people say

we did a bad thing we have the right to show

it is not true.

l. The Right to Privacy. Nobody should try toharm our good name. Nobody has the right to

come into our home, open our letters, or

bother us or our family without a good reason.

m. Freedom to Move. We all have the right togo where we want in our own country and to

travel as we wish.

n. The Right to Seek a Safe Place to Live. Ifwe are frightened of being badly treated in our

own country, we all have the right to run

away to another country to be safe.

o. Right to a Nationality. We all have theright to belong to a country.

p. Marriage and Family. Every grown-up hasthe right to marry and have a family if they

want to. Men and women have the same

rights when they are married, and when they

are separated.

q. The Right to Your Own Things. Everyonehas the right to own things or share them.

Nobody should take our things from us

without a good reason.

r. Freedom of Thought. We all have the rightto believe in what we want to believe, to have

a religion, or to change it if we want.

s. Freedom of Expression. We all have theright to make up our own minds, to think

what we like, to say what we think, and to

share our ideas with other people.

t. The Right to Public Assembly. We all havethe right to meet our friends and to work

together in peace to defend our rights. Nobody

can make us join a group if we dont want to.u. The Right to Democracy. We all have theright to take part in the government of our

country. Every grown-up should be allowed to

choose their own leaders.

v. Social Security. We all have the right toaffordable housing, medicine, education, and

childcare, enough money to live on and

medical help if we are ill or old.

w. Workers Rights. Every grown-up has theright to do a job, to a fair wage for their work,

and to join a trade union.

x. The Right to Play. We all have the right torest from work and to relax.

y. Food and Shelter for All. We all have theright to a good life. Mothers and children

people who are old, unemployed or disabled

and all people have the right to be cared for.

z. The Right to Education. Education is aright. Primary school should be free. We

should learn about the United Nations and

how to get on with others. Our parents canchoose what we learn.

aa.Copyright. Copyright is a special law thatprotects ones own artistic creations and

writings; others cannot make copies without

permission. We all have the right to our own

way of life and to enjoy the good things that

art, science and learning bring.

bb.A Fair and Free World. There must beproper order so we can all enjoy rights and

freedoms in our own country and all over the

world.

cc. Responsibility. We have a duty to otherpeople, and we should protect their rights andfreedoms.

dd.No One Can Take Away Your HumanRights.

INTERNATIONAL CONVENTION ON CIVIL

AND POLITICAL RIGHTS: The portions of the

ICCPR relevant to the subject comprise three (3)

parts:

Part 1 (A1) recognises the right of all peoples to self

determination, including the right to "freely

determine their political status", pursue their

economic, social and cultural goals, and manage and

dispose of their own resources. It recognises a

negative right of a people not to be deprived of its

means of subsistence, and imposes an obligation on

those parties still responsible for non-self governing

and trust territories (colonies) to encourage and

respect their self-determination.

Part 2 (A25) obliges parties to legislate where

necessary to give effect to the rights recognised in the

Covenant, and to provide an effective legal remedy for

any violation of those rights. It also requires the

rights be recognised "without distinction of any kindsuch as race, colour, sex, language, religion, political

or other opinion, national or social origin, property

birth or other status," and to ensure that they are

enjoyed equally by women. The rights can only be

limited "in time of public emergency which threatens

the life of the nation," and even then no derogation is

permitted from the rights to life, freedom from torture

and slavery, the freedom from retrospective law, the

right to personhood, and freedom of thought

conscience and religion.


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Part 3 (A627) lists the rights themselves. These

include rights to:

Physical integrity, in the form of the right tolife and freedom from torture and slavery (A6,

7, 8);

Liberty and security of the person, in the formof freedom from arbitrary arrest and detention

and the right to habeas corpus (A911);

Procedural fairness in law, in the form ofrights to due process, a fair and impartialtrial, the presumption of innocence, and

recognition as a person before the law (A14,

15, 16);

Individual liberty, in the form of the freedomsof movement, thought, conscience and

religion, speech, association and assembly,

family rights, the right to a nationality, and

the right to privacy (A12, 13, 1724);

Prohibition of any propaganda for war as wellas any advocacy of national or religious hatred

that constitutes incitement to discrimination,

hostility or violence by law (A20); Political participation, including the right to

join a political party and the right to vote

(A25);

Non-discrimination, minority rights andequality before the law (A26, 27).

Many of these rights include specific actions which

must be undertaken to realize them.

INTERNATIONAL CONVENTION ON

ECONOMIC, SOCIAL, AND CULTURAL

RIGHTS: The ICESCR follows the structure of the

UDHR and ICCPR. The portions relevant to the

subject comprise three (3) parts:

Part 1 (A1) recognises the right of all peoples to self-

determination, including the right to "freely

determine their political status", pursue their

economic, social and cultural goals, and manage and

dispose of their own resources. It recognises a

negative right of a people not to be deprived of its

means of subsistence, and imposes an obligation on

those parties still responsible for non-self governing

and trust territories (colonies) to encourage and

respect their self-determination.

Part 2 (A25) establishes the principle of "progressive

realisation" an acknowledgement that some of the

rights (for example, the right to health) may be

difficult in practice to achieve in a short period of

time, and that states may be subject to resource

constraints, but requires them to act as best they can

within their means. It also requires the rights be

recognised "without discrimination of any kind as to

race, colour, sex, language, religion, political or other

opinion, national or social origin, property, birth or

other status". The rights can only be limited by law, in

a manner compatible with the nature of the rights

and only for the purpose of "promoting the genera

welfare in a democratic society".

Part 3 (A615) lists the rights themselves. These

include rights to:

Work, under "just and favourable conditions"with the right to form and join trade unions(A6, 7, 8);

Social security, including social insurance(A9);

Family life, including paid parental leave andthe protection of children (A10);

An adequate standard of living, includingadequate food, clothing and housing, and the

"continuous improvement of living conditions"

(A11);

Health, specifically "the highest attainablestandard of physical and mental health

(A12);

Education, including free universal primaryeducation, generally available secondary

education and equally accessible higher

education. This should be directed to "the full

development of the human personality and

the sense of its dignity", and enable al

persons to participate effectively in society

(A13, 14);

Participation in cultural life (A15).Many of these rights include specific actions which

must be undertaken to realize them.

[For a detailed discussion on the domestic laws

relating to womens and childrens rights, please refer

to the assigned cases.]

[wcl] midterms notes (wip).pdf

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