Human Rights Law reviewer

HUMAN RIGHTS REVIEWER CHAPTER 1: THE NATURE OF HUMAN RIGHTS

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Human Rights – Rights – The aggregate of privileges, claim, benefits, " entitlements entitlements and moral guarantees that pertain to man because of his humanity. The legal and moral entitlements that have evolved as " a basis for constructing how state power is used and particularly to limit its use against he rights of citizens. As human beings, we have worth and dignity. " Other descriptions of Human Rights – Jose Zalaquett Zalaquett – “Human Rights is regarded as a " system of values or as elements which are inherent to human dignity.” Jacques Maritain (in Maritain (in his book, The Rights of Man) – " “The human person possesses rights because of the very fact that it is a person, a whole, master of itself, and of its acts, and which consequently is not merely a reason to an end, but an end which must be treated as such.” We can’t be “means” because we have o freewill. Human beings are the “end”. rd Pope John 23 (in his papal encyclical, Pacem In " Terris) – “Any human society must lay down as a foundation, this principle, that every human being is a person, his nature is endowed with intelligence and full will. By virtue of this, he has rights and duties, flowing directly and simultaneously from his very nature.” Jose W. Diokno – Diokno – “No cause is more worthy that the " cause of human rights. They are what make man human.” Kinds of Human Rights Rights – French lawyer Karel Vasak classified them into three (3) generations of rights (however, there are currently four (4) generations of rights already). First generation of civil and political rights " Gradually evolved over centuries as it o served as the protection of individuals from the arbitrary exercise of police power o This can be found in Article III of the 1987 Constitution The first right known to men o o It is also known as the “first generation of liberty rights” Winluck Wahiu Wahiu stated that the first o generation of rights are individual rights against the state Some examples are: o Right against torture " Right to equal protection against " any discrimination discrimination Right against arbitrary arrest and " detention Right to a fair and public hearing " by an independent and impartial tribunal © Lara Murallos reviewer ! please do not hesitate to correct anything.

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Right to privacy, freedom of opinion and expression Second generation of economic, social, and cultural rights (ESC) rights (ESC) o Started to be recognized when people realized that the first generation of rights would be valueless without the enjoyment of economic, social, and cultural rights The experience of third world countries in o their struggle against Colonialism, the influence of Socialism, and the encyclicals of Popes all contributed to the development of the second generation of rights (these are the factors that helped in creating the second generation of rights) o This is also called as “the second generation of equality rights” Some examples are: o " Right to work Right to social security " Right to form and join trade " unions Right to education " Right to health " Right to shelter " Third generation of solidarity rights rights (or collective rights) o The third generation is intended to benefit individuals, groups, and peoples and its realization will need global cooperation based on international international solidarity This is to acknowledge everyone in the o world This is also called as “the third generation of o solidarity rights” o Some examples are: Right to peace " Right to development " Environmental rights " Right of self-determination " " Right to food Rights of women and children " Fourth generation of rights o This right is due to disasters and the experience of Africans This right is still emerging o o Some examples are: Right to disasters " Right to human assistance " " Right to water

Principles of Human Rights Rights – Made to point out that the international community must treat human rights in equal manner, on the same footing, and with the same emphasis. Jose W. Diokno made emphasis that the validity of these principles that people cannot enjoy civil and political rights unless we enjoy economic, cultural, and social rights, anymore than we can insure our civil and political rights. (1) Universality

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Rights that belong to and are to be enjoyed by all human beings without any distinction of any kind o It means that it is internationally-recognized internationally-recognized and that its basic core minimum must be observed everywhere Indivisibility Indivisibility – All the generations cannot be separated from one another Interdependence – Interdependence – There is co-equal in importance, and that these rights are guaranteed that an individual can live decently and in dignity o

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Characteristics of Human Rights – Rights – (1) Inherent o Rights are the birthright of all human beings o Not obtained and granted though any human action or intervention intervention (2) Inalienable o No person can deprive any person these rights o No person can repudiate these rights by himself o Rights that cannot be subjected to the commerce of man (3) Universal – Rights belong to every human being no matter what he or she is like Stages of Human Rights – Rights – (1) Idealization – Idealization – Notions about human rights start in the realm of ideas that reflect a consciousness against oppression or inadequate performance of the State (2) Positivization Positivization – Where the support for the ideas become strong, and thus incorporate them into legal instruments (3) Realization Realization – When these rights are already being enjoyed by the citizens by the transformation of the social, economic, and political order Three obligations of State Parties (1) Obligation to respect o Article 2(1) of the ICCPR contain this obligation o Indicates that the negative character of civil and political rights, commanding the State to refrain from restricting the exercise of these rights is not expressly allowed (2) Obligation to ensure o

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Article 2(1) of the ICCPR also encompasses this obligation, that State parties must be proactive to enable individuals to enjoy their rights Article 2(2) of the ICCPR points out that to provide for an effective remedy to victims of human rights, it must adopt executive,

CHAPTER 2: SOURCES AND FOUNDATIONS OF HUMAN RIGHTS LAW The 1987 Constitution – Constitution – The Constitution itself is a source, and not only the Bill of Rights The 1987 Constitution is the basic source of human # rights law in the Philippines Philippines As early as Biak na Bato, our forefathers are # conscious about the rights of human beings # A novel feature of the 1987 Constitution is the independent constitutional office of the Commission of Human Rights, the first national human rights commission in the world The CHR is not a regular commission, not like the # CoA or the civil service, etc. It is an independent commission which investigates on human rights violations and establishes programs of education and information to enhance respect for the primacy of human rights This Constitution is sometimes called as “Human # Rights Constitution” The 1987 Constitution is the seventh Constitution # drafted by Filipinos International Bill of Rights – U Thant, Thant, former Secretary General of the UN called the three (3) documents and the Optional Protocol to the Covenant on Civil and Political Rights as “Magna Carta for mankind” and is “the essential prerequisite for peace at home and in the world” Universal Declaration of Human Rights (UDHR) # o The Commission on Human Rights of the United Nations drafted the UDHR, while the United Nations passed it o The chairwoman was former first lady Eleanor Roosevelt o The declaration was adopted by 48 votes in favor, none against and eight abstentations Carlos Romulo Romulo was also there during the o drafting of the CHR of the UN The Preamble to the UDHR refers to the o concepts of inherent human dignity and one inalienable nature of human rights. It also called for inter-cultural consensus by indicating that a common understanding of the rights and freedoms is to achieve promotion of universal respect for and observance of human rights and fundamental freedoms The UDHR is the first internationally o adopted catalogue of human rights o Mary Robinson, Robinson, former High Commissioner for Human Rights, said that the common language of humanity, the



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International Covenant on Economic, Social and Cultural Rights

Philosophy Philosophy – Western thinkers inspired the formulation of the UDHR, the English Bill of Rights, the American Declaration of Independence, the French Declaration of the Rights of Man and of the Citizens, and other human rights instruments John Locke # English philosopher who wrote “The Second o Treatise of Government” where he argued that sovereignty resides in the people Contract between the governed and the o government o Government has the duty to promote impartial good o He wrote that legitimate government is dutybound to preserve the rights of life, liberty, health, and property of its citizens; to prosecute and punish those who violate the rights of others and to pursue the public good o The social contract theory is what permeates many national constitutions constitutions Jean Jacques Rosseau # o Inspired by John Locke that’s why their POV seems the same o Franco-Swiss philosopher who wrote “The Social Contract” He argued that the citizens surrender their o rights to the general will which must aim at the impartial good This also abandoned claims of natural right, o that citizens must preserve themselves and remain free Baron de Montesquieu # o French philosopher who wrote “The Spirit of the Laws”, which explained how he saw despotism as a standing danger for any government This theory of separation of powers initially o inspired the US Constitutional Convention. Through this, check and balance and separation of powers became a reality o James Madison was inspired by de Montesquieu’s Montesquieu’s work that he wrote Federalist 51, which he submitted to Thomas Jefferson Religion Religion – embedded in sacred scriptures are lessons and teachings on human dignity, sanctity of life, worth of conscience, social justice, respect for integrity of creation, and other rights.

CHAPTER 3: CIVIL AND POLITICAL

1935 Constitution, 1973 Constitution, 1986 Freedom Constitution – Bill of Rights 1943 Constitution – Duties and Rights of the o Citizens o 1899 Malolos Constitution – The Filipinos and their National and Individual Rights Bill of Rights – Rights – an enumeration of civil and political rights that are self-executing. It also serves as a restriction upon the powers of the State in order to preserve constitutional harmony and stability. Father Joaquin Bernas, SJ – SJ – The Bill of Rights is to # declare some forbidden zones in the private sphere inaccessible inaccessible to any power holder. o

The provisions in the Bill of Rights can be classified into four (4) types (1) The completely new provisions provisions o Section 12(4), 18(1), 19(2) (2) The old provisions that contain amendments by addition o Section 4, 6, 7, 11, 12(1), 12(2), 12(3), 13, 19(1) (3) The old provisions where words and phrases were amended by deletion o Section 2, 15 (4) The old provisions that remained intact o Section 1, 3(1), 5, 9, 10, 20, 21, 22 Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law Law – this is the fruit of the negotiations of the government and the rebels The first substantive agreement signed by the # Negotiating Panels of the Government of the Philippines Philippines in the Hague, Netherlands This comprehensive agreement consists of seven (7) # parts: The Preamble – introduces the Agreement o and articulates the reasons for and the intention of the parties Declaration of Principles o o Bases, Scope, and Applicability o Respect for Human Rights Respect for International Humanitarian Law o o Joint Monitoring Committee o Final provisions

CHAPTER 4: ECONOMIC, SOCIAL, AND CULTURAL RIGHTS Social Justice and Human Rights in the 1987 Constitution It is an innovation in the 1987 Constitution Constitution # Social Justice is not defined in the 1987 Constitution # Teresa Nieva, Nieva, Chairwoman of the o



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. approximated. Universal Declaration of Human Rights A repository of the first generation and second # generation of rights o Articles 22 to 27 of the 1987 Constitution enumerates these rights The second generation of rights served as an # inspiration for regional human rights and national constitutions. International Covenant on Economic, Social, and Cultural Rights This is the sister covenant of the International # Covenant on Civil and Political Rights

CHAPTER 5: SOLIDARITY OR COLLECTIVE RIGHTS Peace, De velopment, Environment Right to peace peace belongs to the category of Solidary # Rights. o Locally, this could be witnessed in the Bangsamoro Peace Agreement and the Bangsamoro Basic Law, which is currently being implemented implemented o Internationally it could be witnessed in places like Syria, Israel, and Latin America, wherein although it is still not yet visible, the efforts of trying to establish peace is eminent development is another example of a # The right to development solidary right. Development is a comprehensive o economic, social, cultural, and political process, which aims at the constant improvement of the well being of the entire population and of all individuals through their meaningful participation. Amartya Sen Sen defines it as a process of o expanding the freedom that people enjoy and requires the removal of major sources of unfreedom like poverty, tyranny, poor economic opportunities, systematic social derivation, neglect of public facilities, intolerance or overactivity of repressive states. Poverty Poverty embraces the spectrum of o conditions where freedoms are diminished

right to freedom, equality, and adequate conditions of life, in an environment of a 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. Women, Children, Persons with Disabilities, Indigenous Peoples # They are usually the world’s vulnerable, disadvantaged, and marginalized groups. Women Women are always denied of their basic human # rights, which roots from restring their choices, increasing their vulnerability to violence, and making it difficult for them to obtain justice. Children are Children are exploited, abused, maltreated, deprived # of education, sold, subjected to cruel methods of punishment, and discriminated against. Persons with disabilities disabilities have long-term physical, # mental, intellectual, or sensory impairments, which in interaction with various barriers may hinder them full and effective participation participation in society on an equal basis with others. RA 7277 7277 defines PWD as those suffering o 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 a human being. Indigenous people people are those that have historically # belonged to a particular region or country before its colonization or transformation into a nation, state, and may have different—often-unique—cult different—often-unique—cultural, ural, linguistic, linguistic, traditional, and other characteristics to those of the dominant culture of that region or state.

CHAPTER 6: REMEDIES AND PROCEDURES PROCEDUR ES FOR RESPONDING TO HUMAN RIGHTS VIOLATIONS AND HUMAN RIGHTS ABUSES Human Rights Violations These are acts committed by or at the instigation of or # with the consent of a public official or other persons acting in an official capacity contrary to human rights law, causing bodily, mental, pain, suffering, or death. When non-State actors commit these transgressions, # their actions are called crimes or human rights abuses. Domestic remedies May take in form of: #



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Prosecution must be handled by the Department of Justice until case is resolved by the court

International International remedies Based on treaties and non-treaty procedures # The reporting requirement Periodically Periodically submit reports to the Secretary General of # the United Nations or to the monitoring body created by the treaty. Comprehensive accounts accounts of the measures adopted by # the State Parties to apply the provisions of the UN Conventions. International Criminal Court The Rome Statute established the International # Criminal Court # Considered as the most ambitious international legal initiative in the history of modern law Has the power to investigate, prosecute, and convict # individuals Exercises international jurisdiction over criminals # 3 ways which an investigation by the ICC may be # initiated 1. A State party may refer a “situation” to the prosecutor, where it appears that one or more crimes within the jurisdiction of the Court was committed 2. The Security Council may refer a “situation” to the prosecutor 3. The Prosecutor may initiate investigation motu proprio or on her own, on the basis of information received from any reliable source The Public 1235 Procedure Economic and Social Council resolution 1235 # authorizes the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities. Information may be furnished by the States # The Confidential 1503 Procedure Adopted by ECOSOC # For more confidential complaints procedure in order to # deal with communications indicating a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms Special Country Rapporteurs and Thematic Rapporteurs The CHR has developed two types of instruments to # supervise implementation of human rights around the world pursuant to ECOSOC resolution 1235.

reliable sources about violations of human rights wherever they occur in the world.

CHAPTER 7: PREVENTIVE MECHANISMS IN THE FIELD OF HUMAN RIGHTS The office of the UN High Commissioner for Human Rights Agency that works to promote and prevent human # rights violations # Guaranteed under international law Stipulated in the UDHR # Established by the UN General Assembly on 20 # December 1993 Ordinate human rights # Engage in human rights activities and incorporate # them in governmental programs It has the following proactive and preventive # responsibilities: o Promoting and protecting the effective enjoyment Carrying out the tasks assigned by o competent bodies of the UN Promoting and protecting the realization of o the right to development o Providing advisory services and technical and financial assistance o Coordinating relevant UN education and public information in the field of human rights o Playing an active role in removing current obstacles and in meeting the challenges to the full realization o Engaging in a dialogue with governments in the implementation of his/her mandate Enhancing international cooperation for the o promotion and protection of human rights Coordination Coordination of the human rights promotion o and protection activities throughout the United Nations system Naturalization, adaptation, strengthening o and streamlining of the UN machinery in the field of human rights to improve its efficiency and effectiveness effectiveness o Overall supervision of the Office of the High Commissioner National Human Rights Institutions An organization that has been established by national # governments with the specific role of protecting and promoting human rights. Paris Principles Principles – provides for standards and # adequate funding Independence



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Conduct research Promote awareness Encourage the involvement governmental organizations

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Non-governmental organizations (NGOs) Chief Justice Artemio V. Panganiban Panganiban classifies # NGOs as belonging to civil society, and reiterated that it has been the forefront of the fight for liberty and considered a pillar of democracy, the conscience of government and the overseer of governmental actions. Rachel Brett Brett stated that it is developing a human # rights culture by making people aware of their rights, of their responsibility not to violate the rights of others, and of the possibilities of redress including supporting individuals in bringing cases, whether with the national system, or under regional or international international procedures

CHAPTER 8: THE JUDICIARY, THE ACADEME, AND THE FAMILY ON BUILDING A HUMAN RIGHTS CULTURE Human Rights Culture A shared communitarian belief in the inherent dignity # and of the equal and inalienable rights of the members of the human family. A shared consensus that the dignity and worth of # every human person can be upheld and honored if the State and non-State actors undertake efforts and initiatives initiatives to uphold and honor human rights. Jose Ayala Lasso Lasso – first United Nations High # Commissioner for Human Rights stated that Human Rights is one of the most important contributions that can be made to future generations. The Judiciary A key player in the development of human rights # culture Social action litigation to protect the marginalized # Judicial activism – revolution by law through decisions # and rules The Academe Schools are compelled to tech human rights, love for # country, respect, and other virtues to children. The Family The only constitution that has a provision about the # Family is the 1987 Philippine Constitution “Values are caught not taught” # George Benson Benson said that great ideas and fine # principles do not live from generation to generation

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