HUMAN RIGHTS LAW Commissioner Rene V Sarmiento Notes MATEO SBCA SOL 1A Chapter 1 I Nature of Human Rights Human Rights are the aggregate of privileges, claim, benefits and entitlements and moral guarantees that pertain to man because of his humanity system of values or as elements which are inherent to human dignity (Jose Zalaquett) legal and moral entitlements that have evolved as a basis for constructing how state power is used and particularly to limit its use against the rights of citizens (Wahiu) Why man has rights? -human possess rights because of the very fact that it is a person, a whole, a master of itself, and of its acts…(Jean Jacques Maritain) Kinds (Karel Vasak) 1. First Generation of Rights / Liberty Rights During the long development of society Serves as the protection of the individuals from the arbitrary exercise of police power Examples: Rights against torture, right to privacy 2. -
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Second Generation of Rights / Equality Rights when people realized that possession of the first generation of liberty rights will be valueless without the enjoyment of economic, social, and cultural rights due to their struggle in Colonialism, influence of Socialism and encyclicals of the popes contributed to the economic, social and cultural rights development and appreciarion
EX. Right to work, right to social security 3. -
Third Generation of Rights / Solidarity Rights Intended to benefit the individuals, groups and peoples Its realization will need global cooperation based on international solidarity
EX: Right to peace, right to development, right to environment Principles 1. Universality Rights belong to and are to be enjoyed by all human beings without distinction of any kind Human rights belong to everyone wherever they are because they are human beings endowed with dignity Internationally-recognized hr: basic core minimum to be observed everywhere without regional differences 2. 3. -
Indivisibility Interdependence The first generation of liberty rights and second generation rights are inter-related and of co-equal in importance Form a indivisible whole and if only these rigths are guaranteed that an individual can live decently and in dignity Intl community must treat human rights in equal manner, on the same footing and same emphasis
“…we cannot enjoy civil and political rights unless we enjoy economic, cultural and social rights, anymore that we can insure our civil and political rights. True, a hungry man doesn’t have much freedom of choice. But equally true, when a well-fed man doesn’t have freedom of choice, he cannot protect himself from being hungry” – Jose W. Diokno Characteristics: 1. INHERENT The rights are the birthright of all human beings, existing independently of the will of either an individual, human being or group When one is born, he carries with them these rights; cannot be separated or detached from him
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INALIENABLE No person can deprive any person these rigths and no person can repudiate these rights by himself Cannot be subject to the commerce of man UNIVERSAL Belongs to every human no matter what she or how he or she is like Promotion and protection are the duty of all the states regardless of cultural, economic or political systems
STAGES (3) 1. Idealizaton Notiotns about human rights started in the realm of ideas that reflect a consciousness against oppression, dehumanization or inadequate performance by the state 2. Positivization Where support for ideas become strong Stage is set to incorporate them into some legal instruments (w/ domestic or international) 3. Realization Rights are enjoyed by the citizens of the state by the transformation of the social, economic and political order THREE OBLIGATIONS OF STATE PARTIES 1. Respect Art 2(1) of ICCP it indicates the negative character of civil and politcal rights, commanding the state parties to refrain from restricting the exercise of these rights where such is not expressly allowed Absolute; states must refrain from practicing torture in all circumstances Right to life, Right to Privacy only prohibit arbitrary interference 2. 3. -
Ensure Protect Prevent private individuals, groups or entities from interfering with others’ civil and political rights
CHAPTER 2 | SOURCES AND FOUNDATIONS OF HR LAW Basic source of HR LAW: 1987 constitution 1st gen of rights: 1. Article III Bill of Rights 2nd Gen of Rights 1. Article XII National Economy and Patrimony 2. Article XIII Social Justice and Human Rights 3. Article XIV Education, Science and Technology, Arts, Culture and Sports 3rd Gen of Rights 1. Article II Declaration od Principles and State Policies 2. Article XV The Family
COMMISION ON HUMAN RIGHTS (Sec 18 Article XIII) Investigate human rights violation involving civil and political rights either committed by the government or ng entities Establish a program if education and information to enhance respect for the primacy of human rights LAWS 1st gen: RA 7438 Speedy Trial Act 2nd Gen: CARL Social Securty Act of 1992 3rd gen: Philippine Clean Air Act of 1999 RA 6955 THE INTL BILL OF RIGHTS Note: Incorporation Clause 1. UDHR Magna Carta for Mankind (U Thant) 2. ICCP essential prerequisite for peace at home and in 3. ICESCR the world
1.UDHR - Dec 10, 1948 - Eleanor Roosevelt - common language of humanity PREAMBLE: Most important Refers to the concepts of inherent human dignity and one inalienable nature of human rights Sources of the declaration and inspiration for further development of HR Calls for inter-cultural consensus: common understanding of the rights and freedoms is one of greatest importance for the full realization of the pledge of Members of the UN to achieve promotion of universal respect for and observance of human rights and fundamental freedoms
ICCP-Parts I-III contains all substantive rights and some general provisions like prohibition of discrimination and misuse, gender equality ** Part III Individual Rights includes right to life, prohibition of torture and inhuman prison condtitons, prohibition of slavery - Parts IV-VI international monitoring provisions, principles of interpretation and final clauses First Optional Protocol to the Covenant Provides for the possibility of individual complaints Second Optional Protocol Dec 15, 1989 Abolition of death penalty
CHAPTER 4 ECONOMIC, SOCIAL AND CULTURAL RIGHTS PHILOSOPHY 1. Second Treatise of Government (John Locke) Sovereignty resides in the people Nature of government in terms of natural rights and social contract Social contract theory 2. 3. -
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The Social Contract (Rosseau) Citizens surrender their rights to the general will of the people which must aim at the impartial good The Spirit of the Laws (Montesquieu) “despotism” “a single person directs everything by his own will and caprice” as a standing danger for any government not despotic argued that it could best be prevented by a system of separation of powers in which different bodies exercise legislative, executive and judicial powers THEORY OF SEPARATION OF POWERS
RELIGION Lessons and teachings of human dignity, sanctity of life, worth of conscience, social justice, respect for the integrity of creation rights of prisoners, rights of persons with PWD, rigths of minorities CHAPTER 3 CIVIL AND POLITICAL RIGHTS Bill of Rights of the 1987 Constitution Enumeration of civil and political rights that are self executing “declare some forbidden zones in the private sphere inaccessible to any power holder”- Fr. Joaquin Bernas Influenced by: 1. Britain’s 1689 Declaration of Rights (Bill of Rights 1689) Right to petition te king, free election, prohibition against excessive bail and fines, non-infliction of cruel and universal punsihments CLASSIFICATION 1. New Provisions (12(4) 2. Old provisions that contain amendments Art.4,6) 3. Amended by deletion (2,5) 4. Remain intact (1,9) COMPREHENSIVE AGREEMENT ON RESPECT FOR HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW First substantive agreement signed by the Negotiating Panels of the GRP and National Democratic Front March 16, 1998 in The Hague, Netherlands Provisions: 1. Right of the people to oppose tyranny, rights of the minority etc UDHR -Art 3-21 * Right to Life, liberty and Security * Right to equal protection of the law * Right to a Fair trial
Social Justice and Human Rights in the 1987 Constitution Contains rich inventory of economic, social and cultural rights like: 1. Rights of all workers to self-organization, collective bargaining and negotiations, Right to security of tenure, humane conditions of work and a living wage, right to health
SOCIAL JUSTICE “Neither communism or despotism, not atomism nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated” – Jose P. Laurel in Calalang v Williams UDHR Art 22-27 Right to security, the right to work, right to rest and leisure, right to an adequate standard of living, right to education and the right to participate in the cultural life Inspirations to: 1. African Charter in Human and Peoples Rights 2. European Social Charter International Covenant for Economic, Social and Cultural Rights Meat of the covenant in Part III 1. Right to work, right to education, right to employment, right to food, clothing and housing, right to adequate standard of leaving Several intl instruments affirm the rights mentioned in the covenant… 1. International Convention on the Rights of the Child 2. Convention on the Elimination of All Forms od Discrimination Against Woman 3. International Labor Organization 4. African Charter on Human and People’s Rights 5. European Social Charter CHAPTER 5 | Solidarity/Collective Rights Peace, Development, Environment Right to Peace It is universally recognized that peoples of the earth have a sacred right to peace and that the preservation of the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each state International instruments related to Peace: 1. Un Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States 2. UN General Assembly Resolution 33/73 3. Declaration of the Rights of the People to Peace of 1984 4. UNGA Resolution 45/14 Implementation of the Right of Peoples to Peace Right to Development Development; a comprehensive economic, social, cultural and political process which aims at the constant improvement of
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the well-being of the entire population and of all individuals through their meaningful participation Process of expanding the freedoms that people enjoy and requires the removal of major sources of unfreedom like poverty, tyranny, poor economic opportunities, systematic social deprivation, neglect of public facilities, intolerance or overactivity of repressive states (Amartya Sen) Proclaimed in the UN Declaration on the Right to Development Recognized in the African Charter on Human Rights and People’s Rights and the Arab Charter on HR Reaffirmed in different instruments like 1993 Vienna Declaration and Programme of Action
Right to Environment Important right due to global warming, climate change, damaging effects of environmental pollution on human beings and degradation of the worlds environment -
Stockholm Conference; important starting point in developing environmental law at the global and national levels 1. Principle 1 man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations
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ICESCR Article 12(3) 1. The steps to achieve the full realization of this right shall include those necessary for…(b)the improvement of all aspects of environmental and industrial hygiene.
WOMAN, CHILDREN, PWD, INDIGENOUS PEOPLE Most vulnerable, disadvantages and marginalized group of people Have rights but are violated Women Denial of their basic rights Restrict their choices, increase their vulnerability to violence and make it difficult for them to obtain justice Ex: pregnancy and child-birth related cases HIV infection Gender-based violence kills Cancer Illiteracy Earn less than men CORE INSTRUMENTS CEDAW Declaration on the Elimination of Discrimination Against Women Convention on the Elimination of All forms of Discrimination Declaration on the Protection of Women and Children in Emergency and Armed Conflict Children Exploited, maltreated, deprived of education, sold, subjected to cruel methods of punishment and discriminated against Have rights; because of their vulnerability are in need of special care, attention and protection EX: Child brides Street Chikdren Child Workers Child Combatants Child Abducters Child Refugees CONVENTION ON THE RIGHTS OF THE CHILD 3 Basic Rights 1. Right to survival 2. Right to develop to the fullest, protection from harmful influences, abuse and exploitation 3. Right to participate fully in family, cultural and social life
PWD Who have long-term physical, mental, intellectual or sensory impairments, which in interaction w various varriers may inder them full and effective participation in society on equal basis w others (UN Convention on the Rights of the Persons with Disabilities) Those suffering from restriction or different abilities, as a result of a mental, physical or sensory impairment, to perform an activity in the manner or within the range considered normal for human being 50 Million PWD due to war and destruction, uunhealthy living conditions or the absence of knowledge about disability, its causes, prevention and treatment, the number increases every year INDIGENOUS PEOPLE Those who have historically belonged to a particular region or country before its colonization or transformation into a nation, state and may have different-often unique- cultural, linguistic, traditional, and other characteristics to those of the dominant culture of that region or state PH: 10% of 100 million Lack education and have inadequate political representation but minerals, forests and rivers can be found where they are and make them vulnerable to development aggression UN Declaration on the Rights of Indigenous People 1. have recognized that they gave suffered from historical injustices as a result of colonization and dispossession of their lands, territories and resources, preventing them from exercising their right to development based on their needs and interest 2. acknowledges the urgent need to respect and promote the inherent rights of indigenous people which are derived form their political, economic and social structures, from their cultures, spiritual traditions, histories and philosophies 3. right to education, self-determination, health etc CHAPTER 6 |Remedies and Procedures for Responding to Human Rights Violations and Human Rights Abuses HUMAN RIGHTS VIOLATIONS acts committed by or at the instigation of or with consent of a public official or other person acting in an official capacity contrary to human rights law causing bodily or mental pain or suffering death. Occur when state actors abuse or deny basic human rights Traditionally, when NSA (Rebels, Insurgents, Non-Government Entities) commit these transgressions or violations of HR, their actions are called crimes. RA 10368(The Human Rights Reparation and Recognition Act of 2013 any act or omission committed during the period from Sept 1 1972 to Feb 25 1986 by persons acting in official capacity and/or agents of the State includes any illegal search, arrest or detention, any affliction of physical injury, any enforced or involuntary disappearance, force or intimidation causing the involuntary exile of a person from the PH, any act or force, intimidation or deceit causing unjust or illegal takeover of a business etc. HUMAN RIGHTS ABUSES violations committed by the rebels (Comprehensive Agreement on Respect for HR and Respect for International Humanitarian Law)
REMEDIES 1. Domestic Remedies May take the form of: 1. Civil Remedies & Criminal Remedies An hr victim may file a civil action for damages under Art 32 of CC Criminal Liability under Art 100 RPC
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Civil and penal sanctions are affirmed by Article III Sec 12(4) 1987 Consti Writ of Amparo Writ of Habeas Data Rules of Procedure for environmental Cases
PROCEDURE HR Victim may opt to file to CHR for investigation After investigation, prosecution will be handled by DOJ until case is resolved by the court Complaint can be filed for specific crimes of HR Violations (Right of the People to Peaceably Assembly. Freedom of Religion. Arbitrary Detention, Murder, Homicide ETC) Since hr violations are crimes under RPC, hr victim can file directly to the Office of the Prosecutor 2. -
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Investigation of communications to determine breaches of treaty obligations under the quasi-judicial practice of the HR Committee most effective hr complaints system universal level only individuals and not groups may submit a communication to the Committee under Art 1 and 2 of the Optional Protocol lack of legally binding effects and sanctions against noncooperative governments; most serious shortcoming of the procedure Investigation, prosecution and trial of HR violators under Rome Statute of the International Criminal Court Deals with and has power to investigate, prosecute and convict individuals Adopted on July 17, 1998 Exercises international jurisdiction over criminals Addresses the problem of preventing hr violators and criminals who may have escaped from natl jurisdiction where they committed serious crimes like: o Genocide o Crimes against humanity o War crimes o Aggression
3 ways by investigation by ICC may be initiated 1. A state party may refer a “situation” to the prosecutor, where it appears that one or more crimes w/in the jurisdiction of the court has been committed 2. Security council may refer a “situation” to the prosecutor 3. Prosecutor may initiate investigation motu proprio or on her own on the basis of info received from any reliable source Prosecutor then applies for warrant of arrest w/ Courts Pre-trial chamber; if approved, issue
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Non-Treaty Public 1235 Procedure
Provides confidential complaints procedure in order to deal w communications indicating a consistent pattern of gross and reliably attested violations of HR and fundamental freedoms Individuals, groups and organizations may submit complaint to Sec Gen for confidential examination by the Commission and Sub-Commission Admissibility Criteria: complaint may not be anonymous and may not contain insulting and abusive language Declares on simple majority on issues before it Make recommendations, appoint special rapporteur w a mandate to submit confidential report or transfer it to public 1305 Although ECOSOC cannot take binding decisions, a public condemnation by ECOSOC of HR violations in a specific country puts pressure on the govt to take its HR obligation under UN Charter seriously
SPECIAL COUNTRY RAPPORTEURS AND THEMATIC RAPPORTEURS 1. -
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Specific Country Rapporteurs And Working Groups Mandated to report annually to the Commission on the development of HR Situation in the country for which they have been appointed Thematic Rapporteurs And Working Groups Thematic rapporteurs or working groups already formed were issues of: 1. Involuntary Disappearance 2. Torture 3. Extra-Judicial Executions 4. Arbitrary Detention 5. Freedom of Expression 6. Xenophobia 7. Racism 8. Violence against women May examine relevant info from all reliable sources about violations of HR wherever they occur in the world May also visit specific countries, with the consent of the government concerned Submit annual reports to the Commission and these annual reports survey the info received by the special thematic rapporteurs, the replies by the govt and their lack, actions taken by the special rapporteur and general comments or recommendations they wish to submit
CHAPTER 7 | PREVENTIVE MECHANISMS IN THE FIELD OF HR -
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1503 Procedure est by reso. 1235 & Reso 1503 of the ECOSOC in 1967 and 1970
Administrative Remedies Heads and bureaus or office has the authority to discipline his employees in line w/ Sections 30 and 36, Book IV Under the Revised Administrative Code of 1987 International Remedies a. Treaty Reporting requirement to ensure the state compliance w/ treaty obligations Submission of reports to UN sec gen or to the monitoring body created by the treaty Comprehensive account of the measures adopted by the state parties to apply the provisions of the UN Convention Also contain elaboration on the progress that the state parties have achieved to fulfill their obligations under the covenant concerned as well as the factors and difficulties that may retard their progress Found in treaties like: o Intl Covenant on Economic, Social and Cultural Rights o ICCP o CEDAW etc
Authorizes CHR to debate during their annual sessions, the question of the violation of HR and Fundamental Freedoms CHR and Sub-commission may examine info relevant to gross violations of HR in their public sessions Info on hr violations may be furnished by the states (members and non members), members of subcommissions and by NGOs w consultative status w UN Sub-commission is authorized to adopt rso on the situation of HR in specific countries but may not take further action
Monitoring, investigative and judicial mechanisms to combat HR violations and to put to an end the practice of impunity must be coupled with and supported by proactive and preventive arrangements and processes designed to develop awareness of and respect for the indivisibility of HR
1. UN: Office of the UN High Commissioner for Human Rights Promote and prevent the HR that are guaranteed under Intl Law and Stipulated by UDHR
Proactive and Preventive Responsibilities Promoting and protecting the effective enjoyment by all of civil, cultural, economic, political and social rights 2. Carrying out the tasks assigned to him/her by competent bodies of UN System in the field of HR and submitting 1.
recommendations to them w a view to improving the promotion and protection of all HR 3. Promoting and protecting the realization of the right to development 4. Providing, through appropriate mechanisms and technical and financial assistance, at the request of the State concerned 5. Coordinating relevant UN education and public information programmes in the field of HR 6. Playing an active role in removing current obstacles and in meeting challenges to the fill realization of all HR and in preventing the continuation of HR violations throughout the world 7. Engaging in a dialogoue w govt in the implementations of his/her mandate 8. Enhancing intl cooperation for the promotion and protection of hr 9. Coordination of the HR promotion and protection activities throughout the UN System 10. Naturalization, adaptation, strengthening and streamlining of the UN machinery in the filed of HR to improve its efficiency and effectiveness 11. Overall supervision of the Office of High Commissioner NATIONAL HR INSTITUTIONS Organization that has been est by natl govt w/ specific role of protecting and promoting hr (Pegram, 2013) Paris Principles: 1. Independence 2. Broad HR mandate 3. Adequate funding 4. Inclusive and Transparent Election and Appointment Proccess Activities: Promote and ensure harmonization of national legislation, regulation and practices w Intl HR instruments to w/c a state is a party and their effective implementation, the ratification of intl hr instruments and formulation of hr education programme and take part in their execution NGO “belonging to civil society that has been a forefront of the fight for liberty and considered a pillar of democracy, the conscience of the government and the overseer of the governmental actions” (Panganiban) Peoples organization who are bona fide associations of citizens w/ demonstrated capacity to promote public interest and w identifiable leadership, membership and structure (1987 Consti) Vital part of hr regime; bring out facts, contribute to the standard setting as well as to the promotion, implementation and enforcement of HR norms, spread the message of hr and mobilize people to realize that message and proceed w/ a speed, decisiveness and range of concerns impossible to imagine in rel to work of bureaucratic and politically constrained intergovernmental organizations Important role: FIELD OF HR EDUCATION Making people aware of their rights, responsibility not to violate the right of others and of the possibility of redress including supporting individuals in bringing cases CHAPTER 8 | THE JUDICIARY, THE ACADEME, AND THE FAMILY ON BUILDING HR CULTURE HR CULTURE Shared communitarian belief in the inherent dignity and of the equal an inalienable rights of all members of the human family Shared consensus that the dignity and worth of every human person can be upheld and honored if thee state and nsa undertake efforts and initiatives to uphold and honor hr -
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foundation for this culture is enshrined in the principles of the universal declaration result in a profound change in how individuals, communities, states and the international community view relationships in all matters in this culture, hr would not be seen as a job of someone else but the obligation and duty of all (Jose Ayala Lasso)
THE JUDICIARY key player in the development of hr culture potent agent to overcome marginalization, impoverishment, discrimination, and inequality can eliminate stripes (economic injustice, political and social injustice) it can educate and enlighten the members of the bar, litigant, law students and the public about the majesty and efficiency of hr JUDICIAL ACTIVISM important strategy to overcome all forms of oppression, exploitation, impoverishment, unjustifiable in any model of social development in Africa and Asia. Encouraged by social action litigation, inspired by constitutional values, may be regarded as a vital human technology for social change in impoverished society NOTABLE DECISIONS BY SC ON HR 1. Oposa v Factoran 2. Secretary of Defense vs Manalo 3. MMDA vs Concerned Residence of Manila Bay 4. Writ of Amparo 5. Habeas Data 6. Rules of Procedure for Environmental Cases THE ACADEME Article XIV (Education, Science And Technology, Arts, Culture And Sports) Inculcate patriotism and nationalism Foster love of humanity Respect for human rights Appreciation of the role of national heroes in the historical developmet of the country Teach the rights and duties of citizenship Strengthen ethical and spiritual values Develop moral character and personal discipline ** HUMAN RIGHTS LAW Effective 2013-2014 in all law schools HR field trips HR boot camps HR exchange programs HR Cultural Shows and art exhibition HR Dialogue bet government, UN Officials, Students HR Debate/Moot court competition THE FAMILY contributor in building of a human rights culture sec 1: recognition of the state of the Filipino Family as the foundation of the nation sec 2: about marriage as an inviolable social institution and foundation of the family sec 3: states obligation to honor and defend the right that pertains to spouses, children, family, or family associations and the elderly FIRST HANDS ON LESSONS ON THE RIGHT TO EDUCATION, CULTURE, FOOD, HEALTH AND NUTRITION, WATER FREEDOM OF EXPRESSION, EQUALITY, DUE PROCESS, JUSTICE RIGHT TO WORSHIP, GOOD GOVERNANCE, ACCOUNTABILITY,INTEGRITY AND LOVE “Great ideas and fine principles do not live from generation to generation just because they are good, nor because they have been carefully legislated. Ideals and principles continue from generation to generation only when they are built into the hearts of children as they grow up” – George Benson
