Chapter IV

Sources of International Human Rights Law.

Sources of International Law
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International Conventions;
International custom, as evidence of a general practice accepted as law;
General principles of law recognized by the community of nations (principal sources of international law)
Judicial decisions and the teachings of the most highly qualified publicists (as subsidiary means for the
determination of rules of law)

International agreements
-

The international agreements, more commonly known as treaties usually are officially called conventions or

covenants
Treaties - Legally binding written agreement concluded between States.
Protocol - A supplement or subsequent agreement relative to an existing treaty. (e.g. Palermo convetion = treaty,

Palermo protocol = protocol)

A States consent to be bound by a treaty is expressed through ratification, approval or acceptance. (Merely
signing is not enough to bind the State, MUST FIRST BE RATIFIED, only then will the doctrine of pacta sunt

servanda may apply).

But unlike other treaties where liability arises only where there is bad faith on the part of a State, in human
rights treaties there can be liability even in the absence of bad faith.

International customary Law

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Requisites:
o Objective element of acts amounting to settled practice of states;
o Subjective element consisting of a belief that this practice is rendered obligatory by the existence of a
rule of law requiring it.

Jus cogens (/peremptory norms/compelling law)

-

Group of fundamental norms is superior to other sources of international law and need not be agreed upon by
States in order to form part of their jurisprudence. They are deemed to be inderogable(not cancellable/
unrepealable) as well.

Elements
o Peremptory norm of general international law;
o It is accepted and recognized by the international community;
o There can be no derogation therefrom;
o It can be modified only by a subsequent norm of general international law having the same character.
Among the universally accepted norms:
o Slavery
o Genocide
o Acts of aggression
o Racial Discrimination
Nicaragua vs USA
o The ICJ ruled that the principle of non-use of force is jus cogens, so that even if the UN Charter and the
treaty were not applicable in the case, the ICJ may still rule on that issue.

Obligation Erga Omnes (Obligation towards all)

-

These are obligations that are owed by States to all, regardless of the presence or absence of their assent to be

bound thereby.
These obligations usually arise from jus cogens rights.

Human rights laws which are paramount importance for the international community. Violation of such gives all

states to have legal interest for the protection of the same.

According to Prof: Bassiouni, the statute of limitation (jus cogens crimes) do not apply, and universal jurisdiction
may even apply to these crimes.

Universal Jurisdiction
-

A state may prosecute a crime committed elsewhere if such crime is a Jus Cogens crime.

Actio popularis
-

Prosecution of Jus Cogens crimes may be initiated by another person or group(e.g. NGOs) of person for the

benefit of another through a complaint ACTIO POPULARIS.

Erga omnes = refers to obligations of the states to the international community
Actio popularis = rule of procedure in bringing a suit on anothers behalf

Incorporation Clause
-

The Philippine Constitution adopts the generally accepted principles of international law as part of the law of the
land.

Judicial Decisions and Teachings

-

International case law serves as a subsidiary means for the determination of rules of law.
May consist of judgments of international tribunals, regional courts and even domestic courts, although

international tribunals rarely look to decisions of domestic courts in ruling an international dispute.
Teachings of the most highly qualified publicists, may also be consulted in ruling international disputes.
ICJ is based in the Netherlands.

Teachings of jurists and publicists

-

Teachings of highly qualified jurist and publicists is a subsidiary means of determining international human

rights law.
Martens Clause Until a more complete code of the laws of war is issued, the High Contracting Parties think it
right to declare that in cases not included in the Regulations adopted by them, populations and belligerents
remain under the protection and empire of the principles of international law.

International Criminal Tribunal of Afghanistan

-

The International Criminal Tribunal of Afghanistan, which convicted US president George W. Bush in Tokyo, is

not an official tribunal.

It is a peoples tribunal founded on the international criminal law and international humanitarian law.

The Kuala Lumpur War Crimes Commission

-

Created to try US Pres. G.W. Bush, Vice Pres, and his Legal advisers.
They were tried in absentia(in the absence of the person being tried) in Malaysia for war crimes by the Kuala

Lumpur War Crimes Commission. (An initiative of former Malaysian Prime Minister Mahathir Mohammad.
The same with the Criminal Tribunal of Afghanistan. (Not official).

Chapter V The International Bill of Rights

Universal Declaration of Human Rights (UDHR) 8 Dec 1948
Not a treaty.
Enacted as a resolution, thus, it has the force and effect only of a recommendation which is considered soft
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law(not coercive in character), and which traditionally would have lacked binding effect upon States.
Drafted by the first UN Commission on H.R, then chaired by Eleanor Roosevelt.

UDHR contains a Preamble and 30 articles.

Notable declarations found in the Preamble of UDHR:
o H.R. are inalienable rights of all members of the human family;
o The recognition of human rights is the foundation of freedom, justice, and peace in the world;
o Freedoms of speech and belief, as well as the freedom from fear and want are the highest aspiration of
o

the common people;

Rebellion against tyranny and oppression is recognized as a last resort where human rights are not

protected.
UDHR recognizes not only civil and political rights of a person, but also his economic rights, social rights, and

cultural rights as well as solidary rights.

The Bill of Rights in the 1987 Philippine Constitution provides for similar guarantees to human rights as those
provided in the UDHR. (with almost the same wordings).

International Convention on Civil and Political Rights 16 Dec 1966

Opened for signature, ratification and accession by General Assembly Resolution 2200A (XXI).
ICCPR has 2 additional protocols:
o The First Optional Protocol Provides for the jurisdiction of the Human Rights Committee to receive and
consider communications from individuals who claim to be victims of human rights violations. (Ratified in
o
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the Philippines Aug. 22, 1989)

The Second Optional Protocol Aimed at the abolition of death penalty. (Ratified in the Philippines Nov.

20, 2007 after R.A.9346 abolishing death penalty in June 2006 was passed)
The ICCPR has a compliance and monitoring mechanism which is the Human Rights Committee.

International Convention on Economic, Social and Cultural Rights 16 Dec 1966

ICESCR has a reporting mechanism called the Committee on Economic, Social and Cultural Rights (CESCR).
The ICESCRs protocol provides for the jurisdiction of the Committee on Economic, Social and Political
Rights(CESCR) to receive and consider communications from individuals and groups claiming to be victims of
violations of any of the rights set forth in ICESCR.

Domestic Application of IHRL

Monist and Dualist theories (domestic applicability)
Monists accept that the internal and international legal systems form a unity. Both national legal rules and
international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or
illegal. In most so-called "monist" states, a distinction between international law in the form of treaties, and other
international law, e.g., customary international law or jus cogens, is made; such states may thus be partly monist and
partly dualist. Netherlands is considered as a Monist State.
Dualists emphasize the difference between national and international law, and require the translation of the latter
into the former. Without this translation, international law does not exist as law. International law has to be national
law as well, or it is no law at all.(incorporation clause?) If a state accepts a treaty but does not adapt its national law in
order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates
international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and
judges cannot apply it. National laws that contradict it remain in force. LEX POSTERIOR principle is often resorted to
in dualist systems: Whichever is the latter law prevails.

Chapter VI. APPLICATION, ENFORCEMENT AND LIMITATIONS

International Application of IHRL
- consent of a state to be bound by a treaty may be expressed through the following:

Signature
o
o
o

Does not automatically mean consent, but the act of ratification which operates to bind that State.
Without ratification, such only operates as an authentication.
Signature ad referendum, means that the signature becomes definitive only once the signature is

confirmed by the state.

Definitive signature operates as the consent of a State to be bound by a treaty when that treaty is not
subject to ratification.

Exchange of letters or notes

o

There necessarily must be 2 letters, if the treaty is bilateral, with at least 1 from each party.

Act of formal confirmation

o
o

Where it is an international organization that intends to be bound by a treaty, instead of ratification.

State may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Reservation
o

Means a unilateral statement, However phrased or named, made by a State, when signing, ratifying,
accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal

effect of certain provisions of the treaty in their application to that State.

Reservations are not allowed when:

Prohibited by the treaty

Not included in the reservations specified by the treaty

Incompatible with the object and purpose of the treaty (in case of such inhibition, A signatory
or contracting state may object)
A signatory or contracting state may object to a reservation if it believes that it is incompatible with the
object and purpose of the treaty.

Interpretative declaration
o

An instrument that is annexed to a treaty with the goal of interpreting or explaining the provisions of the
latter.

Modification
o

Variation of certain treaty provisions only as between particular parties of a treaty, while in their relation

to the other parties the original treaty provisions remain applicable.

If the Treaty is SILENT on modifications, they are to be allowed provided that they do not affect the
rights or obligations of the other parties to the treaty and do not contravene the object and the
purpose.

Denunciation.
o
o

Means the withdrawal by a State Party from a treaty.

ICCPR, ICESCR and CEDAW do not allow denunciation.

Enforcement Mechanisms
Against Individuals:
Domestic enforcement

Enacts national laws to enforce international human rights commitments has been a Phil.
strategy.

Phils translates soft law into hard law (those which are deemed necessary and desirable).
Protective writs and similar judicial remedies may also be availed of ( habeas corpus, amparo,
habeas data, TRO)

International enforcements

Individuals may be brought to justice before hybrid courts, ad hoc international courts, or the

ICC(international criminal courts)

However limited to genocide, crimes against humanity, war crimes, and crimes of aggression.

- Against States: Court Action, Diplomatic Means, Retorsion, Countermeasures, Military Intervention