wcl notes midterms

7/30/2019 WCL Notes Midterms

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WOMEN, CHILDREN, AND THE LAWLESSON 1: BASIC PRINCIPLES OF HUMANRIGHTS AND INTERNATIONAL LAW

HUMAN RIGHTS, DEFINED:(1) HDR definition: rights possessed by all

persons, by virtue of their common humanity,

to live a life of freedom and dignity.

Other definitions:(2) UN definition: those rights which are inherent

in our nature, and without which we cannotlive as human beings; human rights andfundamental freedoms allow us to develop anduse our human qualities, intelligence, talentsand conscience, and to satisfy our spiritualand other needs.

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

or authority.(2) Fundamental: without them, the life and

dignity of man will be meaningless.(3) Inalienable:

a. cannot be rightfully taken away froma 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 passageof 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 one

lives.c. without national border.

(7) Interdependent: fulfillment/exercise of onecannot be had w/o the realization of the other.

PUBLIC POLICY: system of laws, regulatorymeasures, courses of action, and funding prioritiesconcerning a given topic promulgated by agovernmental 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 theICCPR include:

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

fulfill a contractual obligation (A11)(f) prohibition on retrospective operation of penal

laws (A15)(g) right to be recognized everywhere as a person

before 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 whichstates can suspend/restrict under certaincircumstances, to enable said state to respond to aserious public emergency which threatens its life andexistence. Any derogation must be (1) for a limitedperiod of time, (2) proportionate to the emergency,and (3) non-discriminatory.

Any right that is absolute is also non-derogable, i.ecannot 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 (see

A4[2])

The following come not from the ICCPR but from theHRC's General Comment 29:

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

inherent dignity of the human person(e) some elements of the rights of persons

belonging to ethnic/religious/linguisticminorities

(f) prohibition against taking hostagesabductions, or unacknowledged detention

(g) prohibition on propaganda for war andadvocacy of national/racial/religious hatredconstituting incitement todiscrimination/hostility/violence

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


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INTERNATIONAL DECLARATIONS vs.INTERNATIONAL CONVENTIONS:INTERNATIONALDECLARATION INTERNATIONALCONVENTION

Not legally bindingalthough they may bepolitically so as soft

law

Legally bindinginstrumentsconcluded under

international lawInternational treaties and even declarations can,

over time, obtain the status of customaryinternational law (see next page).

WHEN DOES A STATE BECOME A STATE-PARTYTO AN INTERNATIONAL AGREEMENT?A treaty is an international agreement concludedbetween states in written form and governed byinternational law, whether embodied in a singleinstrument or in two or more related instruments andwhetever 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 partiesXPN: If no date is indicated, once consent has been givenRE: ART. II, SEC. 2, 1987 CONSTITUTION: WHATARE THESE GENERALLY ACCEPTEDPRINCIPLES OF INTERNATIONAL LAW?Generally accepted principles of international law

refers to norms of general or customary internationallaw which are binding on all states (i.e., renunciationof war as an instrument of national policy, theprinciple of sovereign immunity, a persons right to

life, liberty and due process, and pacta sunt servanda,among others).

HOW DOES INTERNATIONAL LAW BECOMEPART OF THE LAW OF THE LAND?(1) Transformation: before any rule or principle of

international law can have any effect withinthe domestic jurisdiction, it must be expresslyand specifically 'transformed' into municipallaw by the use of the appropriateconstitutional machinery (e.g. making

equivalent domestic legislation, ratificationetc.) the Philippines follows the doctrine otransformation in the case of treaties, by wayof the Constitutional ratification mechanismc/o the Senate

(2) Incorporation: a country is bound by generallyaccepted principles of international law, whichare considered to be automatically part of itsown laws the Philippines follows the

doctrine of incorporation in case of customarylaw (including treaties which have reachedcustom status)

WHAT ARE THE REQUISITES FOR CUSTOMARYINTERNATIONAL LAW TO BE PRESENT?(1) State practice (usus)(2) Opinio juris

WHO/WHAT DEEMS A PRINCIPLE ASGENERALLY ACCEPTED?Courts, both domestic and international, deem whatprinciples of international law are generallyaccepted.

LESSON 2: INTERNATIONAL CONVENTIONS ONHUMAN RIGHTSUNIVERSAL DECLARATION ON HUMAN RIGHTSWhat follows is a simplified version of the UDHRprovisions specifically made for young people (lels):

This simplified version of the 30 Articles of theUniversal Declaration of Human Rights has beencreated especially for young people.

a. We Are All Born Free & Equal. We are alborn free. We all have our own thoughts andideas. We should all be treated in the sameway.

b. Dont Discriminate. These rights belong toeverybody, whatever our differences.

c. The Right to Life. We all have the right to lifeand 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 You Go. Iam a person just like you!

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

h. Your Human Rights Are Protected by LawWe can all ask for the law to help us when weare not treated fairly.

i. No Unfair Detainment. Nobody has the rightto put us in prison without good reason and


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keep us there, or to send us away from ourcountry.

j. The Right to Trial. If we are put on trial thisshould be in public. The people who try usshould not let anyone tell them what to do.

k. Were Always Innocent Till Proven Guilty.Nobody should be blamed for doing somethinguntil it is proven. When people say we did abad 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 tocome into our home, open our letters, orbother us or our family without a good reason.

m. Freedom to Move. We all have the right to gowhere we want in our own country and totravel as we wish.

n. The Right to Seek a Safe Place to Live. If weare frightened of being badly treated in ourown country, we all have the right to runaway to another country to be safe.

o. Right to a Nationality. We all have the rightto belong to a country.

p. Marriage and Family. Every grown-up has theright to marry and have a family if they wantto. Men and women have the same rightswhen they are married, and when they areseparated.

q. The Right to Your Own Things. Everyone hasthe right to own things or share them. Nobodyshould take our things from us without a goodreason.

r. Freedom of Thought. We all have the right tobelieve in what we want to believe, to have areligion, or to change it if we want.

s. Freedom of Expression. We all have the rightto make up our own minds, to think what welike, to say what we think, and to share ourideas with other people.

t. The Right to Public Assembly. We all have theright to meet our friends and to work togetherin peace to defend our rights. Nobody canmake us join a group if we dont want to.

u. The Right to Democracy. We all have the rightto take part in the government of our country.Every grown-up should be allowed to choosetheir own leaders.

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

childcare, enough money to live on andmedical 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 the rightto a good life. Mothers and children, people

who are old, unemployed or disabled, and allpeople have the right to be cared for.

z. The Right to Education. Education is a rightPrimary school should be free. We shouldlearn about the United Nations and how to geton with others. Our parents can choose whatwe learn.

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

writings; others cannot make copies withoutpermission. We all have the right to our ownway of life and to enjoy the good things thatart, science and learning bring.

bb.A Fair and Free World. There must be properorder so we can all enjoy rights and freedomsin 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 Human Rights.INTERNATIONAL CONVENTION ON CIVIL ANDPOLITICAL RIGHTS: The portions of the ICCPRrelevant to the subject comprise three (3) parts:

Part 1 (A1) recognises the right of all peoples to self-determination, including the right to "freelydetermine their political status", pursue theireconomic, social and cultural goals, and manage anddispose of their own resources. It recognises anegative right of a people not to be deprived of itsmeans of subsistence, and imposes an obligation onthose parties still responsible for non-self governingand trust territories (colonies) to encourage andrespect their self-determination.

Part 2 (A25) obliges parties to legislate wherenecessary to give effect to the rights recognised in theCovenant, and to provide an effective legal remedy forany violation of those rights. It also requires therights be recognised "without distinction of any kind,such as race, colour, sex, language, religion, politicalor other opinion, national or social origin, propertybirth or other status," and to ensure that they areenjoyed equally by women. The rights can only belimited "in time of public emergency which threatensthe life of the nation," and even then no derogation is

permitted from the rights to life, freedom from tortureand slavery, the freedom from retrospective law, theright to personhood, and freedom of thoughtconscience and religion.

Part 3 (A627) lists the rights themselves. Theseinclude rights to:

Physical integrity, in the form of the right tolife and freedom from torture and slavery (A67, 8);


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Liberty and security of the person, in the formof freedom from arbitrary arrest and detentionand 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, andrecognition as a person before the law (A14,15, 16);

Individual liberty, in the form of the freedomsof movement, thought, conscience andreligion, speech, association and assembly,family rights, the right to a nationality, andthe right to privacy (A12, 13, 1724);

Prohibition of any propaganda for war as wellas any advocacy of national or religious hatredthat constitutes incitement to discrimination,hostility or violence by law (A20);

Political participation, including the right tojoin 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 whichmust be undertaken to realize them.

INTERNATIONAL CONVENTION ON ECONOMIC,SOCIAL, AND CULTURAL RIGHTS: The ICESCRfollows the structure of the UDHR and ICCPR. Theportions relevant to the subject comprise three (3)parts:

Part 1 (A1) recognises the right of all peoples to self-determination, including the right to "freelydetermine their political status", pursue theireconomic, social and cultural goals, and manage anddispose of their own resources. It recognises anegative right of a people not to be deprived of itsmeans of subsistence, and imposes an obligation onthose parties still responsible for non-self governingand trust territories (colonies) to encourage andrespect their self-determination.

Part 2 (A25) establishes the principle of "progressiverealisation" an acknowledgement that some of therights (for example, the right to health) may bedifficult in practice to achieve in a short period of

time, and that states may be subject to resourceconstraints, but requires them to act as best they canwithin their means. It also requires the rights berecognised "without discrimination of any kind as torace, colour, sex, language, religion, political or otheropinion, national or social origin, property, birth orother status". The rights can only be limited by law, ina manner compatible with the nature of the rights,and only for the purpose of "promoting the generalwelfare in a democratic society".

Part 3 (A615) lists the rights themselves. Theseinclude 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 secondaryeducation and equally accessible highereducation. This should be directed to "the fulldevelopment of the human personality and

the sense of its dignity", and enable allpersons to participate effectively in society(A13, 14);

Participation in cultural life (A15).Many of these rights include specific actions whichmust be undertaken to realize them.

[For a detailed discussion on the domestic laws

relating to womens and childrens rights, please referto the assigned cases.]

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