VI.

Application, Enforcement and Limitations of Human Rights Law

a. Domestic Legal Regime

a. Extraordinary writs of Habeas Corpus, Habeas Data and Amparo
b. International Legal Regime

VI. A. 1. Domestic Application of IHRL

Theories on the domestic applicability of International Human Rights Law:

a. Monist Theory (i.e. Netherlands)

International law and domestic law comprise one legal system.

In absolute monism, international law automatically becomes domestic law, without need to
enact a separate national law. Domestic laws, including the Constitution, that contravene international
law, may be declared invalid.

International human rights law dictates domestic laws, and the State must enact domestic laws.

b. Dualist Theory

International law and domestic law are different legal systems. International law does not
become obligatory to its citizens until the State passes a corresponding domestic law containing its
provisions.

The lex posterior principle often resorted to in dualist systems: whichever is the latter law,
prevails. This is not much a problem for the Philippines, where its treaty obligations are usually taken
into consideration in the enactment of laws.

The Philippines has signed and ratified most of the important human rights treaties, sans
reservations. The dualist theory is the one prevailing in the Philippines. Congress has to pass domestic
laws (e.g. Child Abuse Law for CRC; Anti-Violence Against Women and Their Children or Anti-VAWC for
CEDAW) in order to enforce international conventions locally.

Section 2. Article II of the Constitution contains the “incorporation clause.” The clause is not
necessarily in conflict with the dualist attitude. It is specifically limited to the adoption of “generally
accepted principles of international law” as part of the law of the land which comprise one of the four
(4) sources of international law. In so far as the other source (treaty) is concerned, such does not
become a law until Congress enacts one translating the treaty into a law of local application, in dualist
fashion.

VI. A. 2. International Application of IHRL

The consent of a State to be bound by a treaty may be expressed by signature, exchange of

instruments constituting a treaty, ratification, acceptance, approval or accession, or y any other means,
if so agreed. (Article 11, Vienna Convention on the Law of Treaties)

Signature:

Signature to a treaty, however, does not automatically mean consent of a State to be bound by
said treaty, if under the national law, it is the act of ratification which operates to bind that State.

Notwithstanding the signature, there still must be the process of ratification, acceptance or
approval to be done by the State. Without ratification, the signature may only operate as a means of
authentication and to show the openness of the signatory State for further discussions on the treaty-
making process.

A “Signature ad referendum,” means that he 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, acceptance or approval.

Exchange of letters or notes:

Consent can be express through exchange of letters or notes. Here, there will necessarily be
two (2) letters,s if the treaty is bilateral, with at least one (1) from each party.

Act of Formal Confirmation

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

ratification the term used is usually “act of form confirmation.”

States Parties may be allowed to limit, restrict, or modify the application of a treaty by:

1. Reservation;

Reservation 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 the State. (Art. 27, Vienna
Convention on the Law o Treaties.)

Reservations are not allowed when:

a. It is prohibited by the treaty;

b. It is not included in the reservations specified by the treaty;
c. It is incompatible with the object and purpose of the treaty.

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.

2. Interpretative Declaration;

An interpretative declaration is an instrument that is annexed to a treaty with the goal of

interpreting or explaining the provisions of the latter.

3. Modification;

Modification is the 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 allowed only if the modifications do not affect
the rights or obligations of the other parties to the treaty and do not contravene the object and the
purpose of the treaty.

4. Denunciation.

Denunciation means the withdrawal by a State Party from a treaty. Treaties such as the CRC,
ICERD, and CAT allow denunciation; ICCPR, ICESCR and CEDAW do not allow denunciation.

It is important to note that a State “may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.”
VI. B. Enforcement Mechanisms

States and governments are the guarantors and protectors of human rights, and because of the
doctrine of State Responsibility, they can be the violators at the same time. They are not, however, the
only violators of these rights.

Individual, juridical persons, groups and business entities may be violators. It is necessary to
distinguish between enforcement of human rights laws against individual violators and enforcement
against State violators, as these involve different means of enforcement.

IV. B. 1. Enforcement Against Individuals.

Domestic Enforcement

In order to effectively protect individuals from infringements on their human rights, enforcement
at the national level is necessary and desirable. The enactment of national laws to enforce international
human rights commitments has been a Philippine strategy. In doing so, it translates a soft law into a
hard law, giving it more teeth and making individual violators directly accountable.

In the Philippines, the RPC and other penal statutes criminalize human rights violations and
punish individual violators. In its Title 2, Crimes Against Fundamental Laws of the State, punishes
violations of human rights similar to those guaranteed under the ICCPR.

The Civil Code contains provisions on the right to seek compensation for damages from
individual violators.

The laws creating the Ombudsman and the Revised Administrative Code also provide
administrative sanctions against violators in government service.

Protective writs and similar judicial remedies may also be availed of, such as the writs of habeas
corpus, amparo and habeas data, and even restraining orders.

International Enforcement

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

In ICC, however, its jurisdiction is limited to the crimes of genocide, crimes against humanity, war
crimes and crimes of aggression. These are all criminal courts.

VI. B. 2. Enforcement Against States

a. Court Action

Where the violator is a State, redress may be sought at the national, regional or international
courts.

In regional level, regional human rights conventions or treaties govern the manner by which
human rights commissions and courts may be accessed to seek redress.

At the International Court of Justice, only States may bring a case against another State.

At the ICC, individuals and heads of State may be tried for crimes defined and punished under
the Rome Statute (or any other treaty in so far as the crime of “acts of aggression” is concerned).
 At the European Court of Human Rights, individuals are allowed to directly bring a case against
a State.

b. Diplomatic Means

Aside from bring complaints before human rights courts, States whose nationals have been
victims of human rights violations by another State may opt to avail of diplomatic means. This may
entail negotiations and dialogue.

c. Retorsion

This may involve withholding of foreign assistance (US), or stoppage of oil imports (oil-producing
countries). These are unfriendly acts which do not necessarily constitute violations of rights of the
offending State.

d. Countermeasures

Countermeasures are responses by a State to the wrongful conduct of another, as a tool of self-
redress.

e. Military Intervention

The use of armed force is still being resorted until now. The military intervention in Libya in 201
was by virtue of a United Nations Resolution. The use of force in Iraq, however, did not have such
authority.

VI. C. Restrictions and Limitations

While substance of human rights cannot be taken away from human beings, its exercise may,
however, bbe regulated. An unrestricted exercise of rights could infringe on the rights of others, or could
be detrimental to public health, public morals, or national security.

States do not have the absolute discretion and prerogative to restrict the exercise of human
rights. Their actions must be bounded by certain parameters and they must be take into consideration
the following:

a. There must be clear legal provision of law;

b. The restriction must be for a legitimate purpose;
c. The proportionality test must be applied;
d. The least intrusive measure should be applied; and,
e. The law must be strictly interpreted against restriction.

Derogation

Some human rights are non-derogable, and some may be suspended or restricted by States.

Article 4 of the ICCPR allows the derogation of rights, provided that:

a. There is a public emergency which threatens the life of the nation;

b. The existence of public emergency is officially proclaimed;
c. The derogation is to the extent strictly required by the exigencies of the situation;
d. The measures taken are not inconsistent with the State’s other obligations under
international law;
e. The measures taken do not involved discrimination solely on the ground of race, color, sex,
language, religion or social origin.
 Rules on Writ of Habeas Corpus, Writ of Habeas Data, and Writ of Amparo

DR. JOY MARGARTE LEE, Petitioner

vs.
P/SUPT. NERI A ILAGAN, Respondent

TOPIC: WRIT OF HABEAS DATA

FACTS:

Respondent Ilagan alleged that he and Petitioner Dr. Joy Margate Lee were former common law
partners. Sometime in 2011, he visited Lee at the latter's condominium and, thereafter, proceeded to
his office.

Upon arrival, Ilagan noticed that his digital camera was missing. Later on, Lee confronted Ilagan
at the latter's office regarding a purported sex video (subject video) she discovered from the aforesaid
camera involving Ilagan and another woman. Ilagan denied the video and demanded Lee to return the
camera, but to no avail. During the confrontation, Ilagan allegedly slammed Lee’s head against a wall
inside his office and walked away. Subsequently, Lee utilized the said video as evidence in filing various
complaints against Ilagan, namely: (a) a criminal complaint for violation of "Anti-Violence Against
Women and Their Children Act of 2004," before the Office of the City Prosecutor of Makati; and (b) an
administrative complaint for grave misconduct before the National Police Commission
(NAPOLCOM). Ilagan claimed that Lee’s acts of reproducing the subject video and threatening to
distribute the same to the upper echelons of the NAPOLCOM and uploading it to the internet violated
not only his right to life, liberty, security, and privacy but also that of the other woman, and thus, the
issuance of a writ of habeas data in his favor is warranted.

Finding the petition prima facie meritorious, the RTC issued a Writ of Habeas Data directing Lee
to appear before the court a quo, and to produce Ilagan’s digital camera, as well as the negative and/or
original of the subject video and copies thereof, and to file a verified written return within five (5)
working days from date of receipt thereof.

In her Verified Return, Lee admitted that she kept the memory card of the camera and
reproduced the video but averred that she only did so to utilize the same as evidence in the cases she
filed against Ilagan. She also stated that she only happened to discover the subject video when Ilagan
left his camera in her condominium. Accordingly, Lee contended that Ilagan’s petition for the issuance
of the writ of habeas data should be dismissed because: (a) its filing was only aimed at suppressing the
evidence against Ilagan in the cases she filed; and (b) she is not engaged in the gathering, collecting,
or storing of data regarding the person of Ilagan. In its decision, the RTC granted the privilege of the
writ of habeas data and ordered the implementing officer to turn-over copies of the subject video to
him, and enjoined Lee from further reproducing the same.

The RTC did not give credence to Lee’s defense that she is not engaged in the gathering,
collecting or storing of data regarding the person of Ilagan, finding that her acts of reproducing the
subject video and showing it to other people violated the latter’s right to privacy in life and caused him
to suffer humiliation and mental anguish. In this relation, the RTC opined that Lee’s use of the subject
video as evidence in the various cases she filed against Ilagan is not enough justification for its
reproduction.

ISSUE:

Whether or not the RTC correctly extended the privilege of the writ of habeas data in favor of
Ilagan.
RULING:

No.

A.M. No. 08-1-16-SC, or the Rule on the Writ of Habeas Data (Habeas Data Rule), was conceived
as a response, given the lack of effective and available remedies, to address the extraordinary rise in
the number of killings and enforced disappearances. It was conceptualized as a judicial remedy enforcing
the right to privacy, most especially the right to informational privacy of individuals, which is defined
as "the right to control the collection, maintenance, use, and dissemination of data about oneself."

As defined in Section 1 of the Habeas Data Rule, the writ of habeas data now stands as "a
remedy available to any person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee, or of a private individual or
entity engaged in the gathering, collecting or storing of data or information regarding the person,
family, home, and correspondence of the aggrieved party." Thus, in order to support a petition
for the issuance of such writ, Section 6 of the Habeas Data Rule essentially requires that the petition
sufficiently alleges, among others, "[t]he manner the right to privacy is violated or threatened
and how it affects the right to life, liberty or security of the aggrieved party." In other words,
the petition must adequately show that there exists a nexus(connection) between the right to
privacy on the one hand, and the right to life, liberty or security on the other.

Corollarily, the allegations in the petition must be supported by substantial evidence showing
an actual or threatened violation of the right to privacy in life, liberty or security of the victim. In this
relation, it bears pointing out that the writ of habeas data will not issue to protect purely property or
commercial concerns nor when the grounds invoked in support of the petitions therefor are vague and
doubtful.

In this case, the Court finds that Ilagan was not able to sufficiently allege that his right to privacy
in life, liberty or security was or would be violated through the supposed reproduction and threatened
dissemination of the subject sex video. While Ilagan purports a privacy interest in the suppression of
this video – which he fears would somehow find its way to Quiapo or be uploaded in the internet for
public consumption – he failed to explain the connection between such interest and any violation of his
right to life, liberty or security. Indeed, courts cannot speculate versions of possible transgressions. As
the rules and existing jurisprudence on the matter evoke, alleging and eventually proving the nexus
between one’s privacy right to the cogent rights to life, liberty or security are crucial in habeas
data cases, so much so that a failure on either account certainly renders a habeas data petition
dismissible, as in this case.

In fact, even discounting the insufficiency of the allegations, the petition would equally be
dismissible due to the inadequacy of the evidence presented. As the records show, all that Ilagan
submitted in support of his petition was his self-serving testimony which hardly meets the substantial
evidence requirement as prescribed by the Habeas Data Rule.

This is because nothing therein would indicate that Lee actually proceeded to commit any overt
act towards the end of violating Ilagan’s right to privacy in life, liberty or security. Nor would anything
on record even lead a reasonable mind to conclude that Lee was going to use the subject video in order
to achieve unlawful ends - say for instance, to spread it to the public so as to ruin Ilagan' s reputation.
Contrastingly, Lee even made it clear in her testimony that the only reason why she reproduced the
subject video was to legitimately utilize the same as evidence in the criminal and administrative cases
that she filed against Ilagan.

Hence, due to the insufficiency of the allegations as well as the glaring absence of substantial
evidence, the Court finds it proper to reverse the R TC Decision and dismiss the habeas data petition.
 RULE 102

Habeas Corpus

Section 1. To what habeas corpus extends. — Except as otherwise expressly provided by law, the writ
of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled
thereto.

Section 2. Who may grant the writ. — The writ of habeas corpus may be granted by the Supreme
Court, or any member thereof in the instances authorized by law, and if so granted it shall be enforceable
anywhere in the Philippines, and may be made returnable before the court or any member thereof, or
before a Court of First Instance, or any judge thereof for the hearing and decision on the merits. It may
also be granted by a Court of First Instance, or a judge thereof, on any day and at any time, and
returnable before himself, enforceable only within his judicial district.

Section 3. Requisites of application therefor. — Application for the writ shall be by petition signed and
verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set
forth:

(a) That the person in whose behalf the application is made is imprisoned or restrained on his
liberty;

(b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are
unknown or uncertain, such officer or person may be described by an assumed appellation, and
the person who is served with the writ shall be deemed the person intended;

(c) The place where he is so imprisoned or restrained, if known;

(d) A copy of the commitment or cause of detention of such person, if it can be procured without
impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal
authority, such fact shall appear.

Section 4. When writ not allowed or discharge authorized. — If it appears that the person alleged to
be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Not shall anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering
imprisonment under lawful judgment.

Section 5. When the writ must be granted and issued. — A court or judge authorized to grant the writ
must, when a petition therefor is presented and it appears that the writ ought to issue, grant the same
forthwith, and immediately thereupon the clerk of the court shall issue the writ under the seal of the
court; or in case of emergency, the judge may issue the writ under his own hand, and may depute any
officer or person to serve it.

Section 6. To whom writ directed, and what to require. — In case of imprisonment or restraint by an
officer, the writ shall be directed to him, and shall command him to have the body of the person
restrained of his liberty before the court or judge designated in the writ at the time and place therein
specified. In case of imprisonment or restraint by a person not an officer, the writ shall be directed to
an officer, and shall command him to take and have the body of the person restrained of his liberty
before the court or judge designated in the writ at the time and place therein specified, and to summon
the person by whom he is restrained then and there to appear before said court or judge to show the
cause of the imprisonment or restraint.
 WRIT OF AMPARO

Section 1. Petition. - The petition for a writ of amparo is a remedy available to any person
whose right to life, liberty and security is violated or threatened with violation by an unlawful act or
omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.

Sec. 2. Who May File. - The petition may be filed by the aggrieved party or by any qualified
person or entity in the following order:

1. Any member of the immediate family, namely: the spouse, children and parents of the
aggrieved party;

2. Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil
degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or

3. Any concerned citizen, organization, association or institution, if there is no known member

of the immediate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other authorized parties
to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the
aggrieved party suspends the right of all others, observing the order established herein.

Sec. 3. Where to File. - The petition may be filed on any day and at any time with the Regional
Trial Court of the place where the threat, act or omission was committed or any of its elements occurred,
or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The
writ shall be enforceable anywhere in the Philippines.

When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before
such court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be
returnable before such court or any justice thereof, or to any Regional Trial Court of the place where
the threat, act or omission was committed or any of its elements occurred.

When issued by the Supreme Court or any of its justices, it may be returnable before such Court
or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or
to any Regional Trial Court of the place where the threat, act or omission was committed or any of its
elements occurred.

Sec. 4. No Docket Fees.

Sec. 5. Contents of Petition. - The petition shall be signed and verified and shall allege the
following:

1. The personal circumstances of the petitioner;

2. The name and personal circumstances of the respondent responsible for the threat, act or
omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed
appellation;

3. The right to life, liberty and security of the aggrieved party violated or threatened with
violation by an unlawful act or omission of the respondent, and how such threat or violation is committed
with the attendant circumstances detailed in supporting affidavits;
 4. The investigation conducted, if any, specifying the names, personal circumstances, and
addresses of the investigating authority or individuals, as well as the manner and conduct of the
investigation, together with any report;

5. The actions and recourses taken by the petitioner to determine the fate or whereabouts of
the aggrieved party and the identity of the person responsible for the threat, act or omission; and

6. The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs.

Sec. 6. Issuance of the Writ. - Upon the filing of the petition, the court, justice or judge shall
immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue
the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue
the writ under his or her own hand, and may deputize any officer or person to serve it.

The writ shall also set the date and time for summary hearing of the petition which shall not be
later than seven (7) days from the date of its issuance.

Sec. 9. Return; Contents. - Within seventy-two (72) hours after service of the writ, the
respondent shall file a verified written return together with supporting affidavits which shall, among
other things, contain the following:

1. The lawful defenses to show that the respondent did not violate or threaten with violation the
right to life, liberty and security of the aggrieved party, through any act or omission;

2. The steps or actions taken by the respondent to determine the fate or whereabouts of the
aggrieved party and the person or persons responsible for the threat, act or omission;

3. All relevant information in the possession of the respondent pertaining to the threat, act or
omission against the aggrieved party; and

4. If the respondent is a public official or employee, the return shall further state the actions
that have been or will still be taken:

1. to verify the identity of the aggrieved party;

2. to recover and preserve evidence related to the death or disappearance of the person
identified in the petition which may aid in the prosecution of the person or persons responsible;

3. to identify witnesses and obtain statements from them concerning the death or
disappearance;

4. to determine the cause, manner, location and time of death or disappearance as well as any
pattern or practice that may have brought about the death or disappearance;

5. to identify and apprehend the person or persons involved in the death or disappearance; and

6. to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and the
prosecution of the case.

A general denial of the allegations in the petition shall not be allowed.

Sec. 10. Defenses not Pleaded Deemed Waived. –

Sec. 11. Prohibited Pleadings and Motions. –

1. Motion to dismiss;
2. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or interim relief orders; and
12. Petition for certiorari, mandamus or prohibition against any interlocutory order.

Sec. 12. Effect of Failure to File Return. - In case the respondent fails to file a return, the court,
justice or judge shall proceed to hear the petition ex parte.

Sec. 14. Interim Reliefs. - Upon filing of the petition or at anytime before final judgment, the court,
justice or judge may grant any of the following reliefs:

(a) Temporary Protection Order. - The court, justice or judge, upon motion or motu proprio, may
order that the petitioner or the aggrieved party and any member of the immediate family be protected
in a government agency or by an accredited person or private institution capable of keeping and securing
their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of
this Rule, the protection may be extended to the officers involved.

(b) Inspection Order. - The court, justice or judge, upon verified motion and after due hearing, may
order any person in possession or control of a designated land or other property, to permit entry for the
purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or
operation thereon.

(c) Production Order. - The court, justice or judge, upon verified motion and after due hearing, may
order any person in possession, custody or control of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form,
which constitute or contain evidence relevant to the petition or the return, to produce and permit their
inspection, copying or photographing by or on behalf of the movant.

(d) Witness Protection Order. - The court, justice or judge, upon motion or motu proprio, may refer
the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit
Program, pursuant to Republic Act No. 6981.

Sec. 16. Contempt. - The court, justice or judge may order the respondent who refuses to make a
return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process
or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine.

Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their
claims by substantial evidence.

The respondent who is a private individual or entity must prove that ordinary diligence as required by
applicable laws, rules and regulations was observed in the performance of duty.

The respondent who is a public official or employee must prove that extraordinary diligence as required
by applicable laws, rules and regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the presumption that official duty has been
regularly performed to evade responsibility or liability.

Sec. 18. Judgment. - The court shall render judgment within ten (10) days from the time the petition
is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court
shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the
privilege shall be denied.

Sec. 19. Appeal. - Any party may appeal from the final judgment or order to the Supreme Court under
Rule 45. The appeal may raise questions of fact or law or both.

The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.

The appeal shall be given the same priority as in habeas corpus cases.

WRIT OF HABEAS DATA

THE RULE ON THE WRIT OF HABEAS DATA

Section 1. Habeas Data. - The writ of habeas data is a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the gathering, collecting or storing
of data or information regarding the person, family, home and correspondence of the aggrieved party.

Sec. 2. Who May File. - Any aggrieved party may file a petition for the writ of habeas data. However,
in cases of extralegal killings and enforced disappearances, the petition may be filed by:

(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and
parents; or

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree
of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or

Sec. 3. Where to File. - The petition may be filed with the Regional Trial Court where the petitioner or
respondent resides, or that which has jurisdiction over the place where the data or information is
gathered, collected or stored, at the option of the petitioner.

The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan
when the action concerns public data files of government offices.

Sec. 4. Where Returnable; Enforceable. - When the writ is issued by a Regional Trial Court or any
judge thereof, it shall be returnable before such court or judge.

When issued by the Court of Appeals or the Sandiganbayan or any of its justices, it may be returnable
before such court or any justice thereof, or to any Regional Trial Court of the place where the petitioner
or respondent resides, or that which has jurisdiction over the place where the data or information is
gathered, collected or stored.

When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any
justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its justices, or to any
Regional Trial Court of the place where the petitioner or respondent resides, or that which has
jurisdiction over the place where the data or information is gathered, collected or stored.

The writ of habeas data shall be enforceable anywhere in the Philippines.

Sec. 5. Docket Fees.

Sec. 6. Petition. - A verified written petition for a writ of habeas data should contain:

(a) The personal circumstances of the petitioner and the respondent;

(b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty
or security of the aggrieved party;

(c) The actions and recourses taken by the petitioner to secure the data or information;

(d) The location of the files, registers or databases, the government office, and the person in charge, in
possession or in control of the data or information, if known;

(e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of
the database or information or files kept by the respondent.

In case of threats, the relief may include a prayer for an order enjoining the act complained of; and

(f) Such other relevant reliefs as are just and equitable.

Sec. 9. How the Writ is Served. - The writ shall be served upon the respondent by a judicial officer
or by a person deputized by the court, justice or judge who shall retain a copy on which to make a
return of service. In case the writ cannot be served personally on the respondent, the rules on
substituted service shall apply.

Sec. 10. Return; Contents. - The respondent shall file a verified written return together with
supporting affidavits within five (5) working days from service of the writ, which period may be
reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain
the following:

(a) The lawful defenses such as national security, state secrets, privileged communications,
confidentiality of the source of information of media and others;

(b) In case of respondent in charge, in possession or in control of the data or information subject of the
petition;

(i) a disclosure of the data or information about the petitioner, the nature of such data or information,
and the purpose for its collection;

(ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data
or information; and

(iii) the currency and accuracy of the data or information held; and,

(c) Other allegations relevant to the resolution of the proceeding.

A general denial of the allegations in the petition shall not be allowed.

Sec. 11. Contempt. - The court, justice or judge may punish with imprisonment or fine a respondent
who commits contempt by making a false return, or refusing to make a return; or any person who
otherwise disobeys or resist a lawful process or order of the court.

Sec. 12. When Defenses May be Heard in Chambers. - A hearing in chambers may be conducted
where the respondent invokes the defense that the release of the data or information in question shall
compromise national security or state secrets, or when the data or information cannot be divulged to
the public due to its nature or privileged character.
Sec. 13. Prohibited Pleadings and Motions. - The following pleadings and motions are prohibited:

(a) Motion to dismiss;

(b) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings;
(c) Dilatory motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory orders or interim relief orders; and
(l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

Sec. 16. Judgment. - The court shall render judgment within ten (10) days from the time the petition
is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court
shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous
data or information and grant other relevant reliefs as may be just and equitable; otherwise, the
privilege of the writ shall be denied.

Upon its finality, the judgment shall be enforced by the sheriff or any lawful officers as may be
designated by the court, justice or judge within five (5) working days.

Sec. 19. Appeal. - Any party may appeal from the final judgment or order to the Supreme Court under
Rule 45. The appeal may raise questions of fact or law or both.

The period of appeal shall be five (5) working days from the date of notice of the judgment or final
order.

The appeal shall be given the same priority as in habeas corpus and amparo cases.

Mechanisms in the European Court of Human Rights

Seat: Strasbourg, France Instrument: European Convention on Human Rights

Operating Since: 1959
Part of the: European Human Rights System

A. History

The European Court of Human Rights (ECtHR) is a regional human rights judicial body based in
Strasbourg, France, created under the auspices of the Council of Europe. The Court began operating in
1959 and has delivered more than 10,000 judgments regarding alleged violations of the European
Convention on Human Rights.
In 1998, the European human rights system was reformed to eliminate the European
Commission of Human Rights, which previously decided the admissibility of complaints, oversaw friendly
settlements, and referred some cases to the Court – in a manner similar to the current Inter-American
System. Now, individual victims may submit their complaints directly to the European Court of Human
Rights.
The European Court, or “Strasbourg Court” as it is often called, serves a complementary role to that
of the European Committee of Social Rights, which oversees European States’ respect for social and
economic rights.

B. Jurisdiction

The Court has jurisdiction to decide complaints (“applications”) submitted by individuals and States
concerning violations of the Convention for the Protection of Human Rights and Fundamental Freedoms
(commonly referred to as the “European Convention on Human Rights“), which principally concerns civil
and political rights. It cannot take up a case on its own initiative. Notably, the person, group or non-
governmental organization submitting the complaint (“the applicant”) does not have to be a citizen of a
State party.
However, complaints submitted to the Court must concern violations of the Convention allegedly
committed by a State party to the Convention and that directly and significantly affected the applicant.
As of November 2018, there are 47 State parties to the Convention; these include the Member States
of the Council of Europe and of the European Union. Some of these States have also ratified one or more
of the Additional Protocols to the Convention, which protect additional rights.
As of August 1, 2018, the Court also has advisory jurisdiction. Under Protocol 16 to the European
Convention, which entered into force on August 1, the highest domestic courts in the States that are a
party to the Protocol may request European Court advisory opinions on questions of interpretation of
the European Convention and its protocols. The questions must arise out of cases pending before the
domestic court. [IJRC]

C. Structure

In order to resolve many cases simultaneously, the ECtHR is organized into five sections, or
administrative entities, which each have a judicial chamber. Each section has a President, Vice President,
and a number of judges. The Court’s 47 judges are selected by the Parliamentary Assembly of the
Council of Europe from a list of applicants proposed by the Member States.
Within the Court, the judges work in four different kinds of groups, or “judicial formations.”
Applications received by the Court will be allocated to one of these formations:
1. Single Judge: only rules on the admissibility of applications that are clearly inadmissible
based on the material submitted by the applicant.
2. Committee: composed of 3 judges, committees rule on the admissibility of cases as well as
the merits when the case concerns an issue covered by well-developed case law (the decision must be
unanimous).
3. Chamber: composed of 7 judges, chambers primarily rule on admissibility and merits for
cases that raise issues that have not been ruled on repeatedly (a decision may be made by a majority).
Each chamber includes the Section President and the “national judge” (the judge with the nationality of
the State against which the application is lodged).
4. Grand Chamber: composed of 17 judges, the Grand Chamber hears a small, select number of
cases that have been either referred to it (on appeal from a Chamber decision) or relinquished by a
Chamber, usually when the case involves an important or novel question. Applications never go directly
to the Grand Chamber. The Grand Chamber always includes the President and Vice-President of the
Court, the five Section presidents, and the national judge.

D. Submitting an Application

Applications to the European Court of Human Rights must comply with the requirements described
in Article 47 of the Rules of Court. Applicants should be aware that the Court periodically modifies its
rules and procedures; in 2014, it began applying stricter requirements for individual applications.
To submit an application, applicants should use the application form, which is available online and
must be filled out in its entirety. Copies of all relevant documents must be included along with the
application, which must be submitted by postal mail.
A substantial majority of the applications submitted to the Court are struck from the list or declared
inadmissible because they fail to meet one or more of the admissibility criteria. Please read the notes
for filling in the application form and Your Application to the ECHR before beginning an application. The
Court may choose not to examine an application that does not fulfill all of the requirements.
Additionally, the ECHR has published a short video tutorial on “The correct way to lodge an
application with the Court.”

E. Proceedings before the Court

Proceedings before the Court are conducted primarily in writing; public hearings are rare.
There is no cost associated with submitting an application and the applicant may apply for legal aid
to cover expenses that arise later in the proceeding.
While a lawyer is not necessary to lodge a complaint, applicants should have representation after
the case is declared admissible, and must be represented by a lawyer in any hearing before the Court.
 Applications to the ECtHR go through two phases: admissibility and merits. The specific nature of
the case will dictate the speed and course of the proceedings. However, it may be months or years
before an applicant receives a decision or judgment.

a. Admissibility

When the Court receives an application, the Court must determine if it meets all of the admissibility
requirements. An admissibility decision may be made by a single judge, a three-judge committee, or a
seven-judge chamber. To be declared admissible, an application must meet the following criteria:
1. Exhaustion of domestic remedies
2. Six-month application deadline (from the final domestic judicial decision)
3. Complaint against a State party to the European Convention on Human Rights
4. Applicant suffered a significant disadvantage
If an application fails to meet any of these requirements, it will be declared inadmissible and cannot
proceed any further. There is no appeal from a decision of inadmissibility.
Applicants may use the ECHR’s Online Admissibility Checklist to determine if their complaint
satisfies the requirements. Additionally, the Court has created a short video on Admissibility Conditions.

b. Merits

If an application is not struck from the list or declared inadmissible at an earlier stage, it will be
assigned to one of the ECtHR’s five sections and the State will be notified of the complaint. At this time,
both parties will have the opportunity to submit observations to the Court. These observations may
contain specific information requested by the Chamber or President of the Section, or any other material
that the parties decide is relevant. The Chamber has the option to consider admissibility and merits
separately or concurrently, but it must notify the parties if it plans to consider admissibility and merits
together.
When a Chamber issues a judgment on the merits, there is a three-month period before the
decision becomes final. During this period, either or both of the parties may request that the application
be referred to the Grand Chamber. However, the Grand Chamber only hears a limited number of
exceptional cases.
If the Court ultimately decides a case in favor of the applicant, it may award just
satisfaction (monetary compensation for the damages suffered) and require the State to cover the
cost of bringing the case. If the Court finds that there has been no violation, then the applicant is not
liable for the State’s legal expenses.
The Committee of Ministers of the Council of Europe is responsible for enforcing the Court’s
judgments. States are bound by the decisions of the Court and must execute them accordingly. Often
this means amending legislation to ensure that the violation does not continue to occur. However, the
Court does not have the authority to overrule a national decision or annul national laws.

c. Friendly Settlement

Prior to a decision on the merits, the Court will try to facilitate the arrangement of a friendly
settlement. If a friendly settlement cannot be reached, the Court will then deliver a judgment on the
merits. In instances where the Chamber hearing the case decides to issue an admissibility decision in
conjunction with a judgment on the merits, the parties may include information about friendly
settlements in the observation they submit to the Court.

d. Interim Measures

In exceptional cases, the Court may grant applicants “interim measures,” which are designed to
protect the applicant from further harm while the case proceeds before the Court. Requests for interim
measures are only granted when there is an imminent risk of irreparable harm such as death or torture.
They are most often granted in extradition and deportation cases.

Responsibility of States for Internationally Wrongful Acts

PART ONE THE INTERNATIONALLY WRONGFUL ACT OF A STATE
 CHAPTER I GENERAL PRINCIPLES

Article l
Responsibility of a State for its internationally wrongful acts

Every internationally wrongful act of a State entails the international responsibility of that State.

Article 2
Elements of an internationally wrongful act of a State

There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) is attributable to the State under international law; and

(b) constitutes a breach of an international obligation of the State.

CHAPTER II ATTRIBUTION OF CONDUCT TO A STATE

Article 4
Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under international
law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position
it holds in the organization of the State, and whatever its character as an organ of the central
Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal
law of the State.

Article 5
Conduct of persons or entities exercising elements of governmental authority shall be
considered an act of the State under international law, provided the person or entity is acting in that
capacity in the particular instance.

Article 6
Conduct of organs placed at the disposal of a State by another State State shall be considered
an act of the former State under international law if the organ is acting in the exercise of elements of
the governmental authority of the State at whose disposal it is placed.

Article 7
Excess of authority or contravention of instructions shall be considered an act of the State under
international law

Article 8
Conduct directed or controlled by a State

Article 9
Conduct carried out in the absence or default of the official authorities

Article 10
Conduct of an insurrectional or other movement which becomes the new Government of a State
shall be considered an act of that State under international law.

2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new

State in part of the territory of a pre-existing State or in a territory under its administration shall be
considered an act of the new State under international law.

Article 11
Conduct acknowledged and adopted by a State as its own
CHAPTER III BREACH OF AN INTERNATIONAL OBLIGATION

Article 12
Existence of a breach of an international obligation
There is a breach of an international obligation by a State when an act of that State is not in
conformity with what is required of it by that obligation, regardless of its origin or character.

Article 13
International obligation in force for a State
An act of a State does not constitute a breach of an international obligation unless the State is
bound by the obligation in question at the time the act occurs.

Article 14
Extension in time of the breach of an international obligation
1. The breach of an international obligation by an act of a State not having a continuing character
occurs at the moment when the act is performed, even if its effects continue.
2. The breach of an international obligation by an act of a State having a continuing character
extends over the entire period during which the act continues and remains not in conformity with the
international obligation.
3. The breach of an international obligation requiring a State to prevent a given event occurs when
the event occurs and extends over the entire period during which the event continues and remains not
in conformity with that obligation.

Article 15
Breach consisting of a composite act
1. The breach of an international obligation by a State through a series of actions or omissions
defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other
actions or omissions, is sufficient to constitute the wrongful act.
2. In such a case, the breach extends over the entire period starting with the first of the actions
or omissions of the series and lasts for as long as these actions or omissions are repeated and remain
not in conformity with the international obligation.

CHAPTER IV RESPONSIBILITY OF A STATE IN CONNECTION WITH THE ACT OF

ANOTHER STATE

Article 16
Aid or assistance in the commission of an internationally wrongful act
A State which aids or assists another State in the commission of an internationally wrongful act
by the latter is internationally responsible for doing so if:
(a) that State does so with knowledge of the circumstances of the internationally wrongful act;
and
(b) the act would be internationally wrongful if committed by that State.

Article 17
Direction and control exercised over the commission of an internationally wrongful act
A State which directs and controls another State in the commission of an internationally wrongful
act by the latter is internationally responsible for that act if:
(a) that State does so with knowledge of the circumstances of the internationally wrongful act;
and
(b) the act would be internationally wrongful if committed by that State.

Article 18
Coercion of another State
A State which coerces another State to commit an act is internationally responsible for that act
if:
(a) the act would, but for the coercion, be an internationally wrongful act of the coerced State;
and
(b) the coercing State does so with knowledge of the circumstances of the act.

CHAPTER V CIRCUMSTANCES PRECLUDING WRONGFULNESS

Article 20 Consent
 Valid consent by a State to the commission of a given act by another State precludes the
wrongfulness of that act in relation to the former State to the extent that the act remains within the
limits of that consent.

Article 21 Self-defence
The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-
defence taken in conformity with the Charter of the United Nations.

Article 22 Countermeasures in respect of an internationally wrongful act

The wrongfulness of an act of a State not in conformity with an international obligation towards
another State is precluded if and to the extent that the act constitutes a countermeasure taken against
the latter State in accordance with chapter II of part three.

Article 23 Force majeure

1. The wrongfulness of an act of a State not in conformity with an international obligation of
that State is precluded if the act is due to force majeure that is the occurrence of an irresistible force or
of an unforeseen event, beyond the control of the State, making it materially impossible in the
circumstances to perform the obligation.
2. Paragraph 1 does not apply if:
(a) the situation of force majeure is due, either alone or in combination with other factors, to
the conduct of the State invoking it; or
(b) the State has assumed the risk of that situation occurring.

Article 24 Distress
1. The wrongfulness of an act of a State not in conformity with an international obligation of
that State is precluded if the author of the act in question has no other reasonable way, in a situation
of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care.
2. Paragraph 1 does not apply if:
(a) the situation of distress is due, either alone or in combination with other factors, to the
conduct of the State invoking it; or
(b) the act in question is likely to create a comparable or greater peril.

Article 25 Necessity
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an
act not in conformity with an international obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave and imminent
peril; and
(b) does not seriously impair an essential interest of the State or States towards which the
obligation exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness
if:
(a) the international obligation in question excludes the possibility of invoking necessity; or
(b) the State has contributed to the situation of necessity.

Article 26 Compliance with peremptory norms

Nothing in this chapter precludes the wrongfulness of any act of a State which is not in
conformity with an obligation arising under a peremptory norm of general international law.

Article 27 Consequences of invoking a circumstance precluding wrongfulness

The invocation of a circumstance precluding wrongfulness in accordance with this chapter is
without prejudice to:

(a) compliance with the obligation in question, if and to the extent that the circumstance
precluding wrongfulness no longer exists;
(b) the question of compensation for any material loss caused by the act in question.

PART TWO CONTENT OF THE INTERNATIONAL RESPONSIBILITY OF A STATE

CHAPTER I GENERAL PRINCIPLES
Article 28 Legal consequences of an internationally wrongful act
The international responsibility of a State which is entailed by an internationally wrongful act in
accordance with the provisions of part one involves legal consequences as set out in this part.

Article 29 Continued duty of performance

The legal consequences of an internationally wrongful act under this part do not affect the
continued duty of the responsible State to perform the obligation breached.

Article 30 Cessation and non-repetition

The State responsible for the internationally wrongful act is under an obligation:
(a) to cease that act, if it is continuing;
(b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so
require.

Article 31 Reparation
1. The responsible State is under an obligation to make full reparation for the injury caused by
the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally
wrongful act of a State.

Article 32 Irrelevance of internal law

The responsible State may not rely on the provisions of its internal law as justification for failure
to comply with its obligations under this part.

Article 33 Scope of international obligations set out in this part

1. The obligations of the responsible State set out in this part may be owed to another State, to
several States, or to the international community as a whole, depending in particular on the character
and content of the international obligation and on the circumstances of the breach.
2. This part is without prejudice to any right, arising from the international responsibility of a
State, which may accrue directly to any person or entity other than a State.

CHAPTER II REPARATION FOR INJURY

Article 34 Forms of reparation

Full reparation for the injury caused by the internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either singly or in combination, in accordance with the
provisions of this chapter.

Article 35 Restitution
A State responsible for an internationally wrongful act is under an obligation to make restitution,
that is, to re-establish the situation which existed before the wrongful act was committed, provided and
to the extent that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to the benefit deriving from restitution instead
of compensation.

Article 36 Compensation
1. The State responsible for an internationally wrongful act is under an obligation to compensate
for the damage caused thereby, insofar as such damage is not made good by restitution.
2. The compensation shall cover any financially assessable damage including loss of profits
insofar as it is established.

Article 37 Satisfaction
1. The State responsible for an internationally wrongful act is under an obligation to give
satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or
compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a
formal apology or another appropriate modality.
 3. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating
to the responsible State.

Article 38 Interest
1. Interest on any principal sum due under this chapter shall be payable when necessary in
order to ensure full reparation. The interest rate and mode of calculation shall be set so as to achieve
that result.
2. Interest runs from the date when the principal sum should have been paid until the date the
obligation to pay is fulfilled.

Article 39 Contribution to the injury

In the determination of reparation, account shall be taken of the contribution to the injury by
wilful or negligent action or omission of the injured State or any person or entity in relation to whom
reparation is sought.

CHAPTER III SERIOUS BREACHES OF OBLIGATIONS UNDER PEREMPTORY NORMS OF

GENERAL INTERNATIONAL LAW
Article 40 Application of this chapter
1. This chapter applies to the international responsibility which is entailed by a serious breach
by a State of an obligation arising under a peremptory norm of general international law.
2. A breach of such an obligation is serious if it involves a gross or systematic failure by the
responsible State to fulfil the obligation.

Article 41 Particular consequences of a serious breach of an obligation under this chapter

1. States shall cooperate to bring to an end through lawful means any serious breach within the
meaning of article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the meaning
of article 40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this part and to such
further consequences that a breach to which this chapter applies may entail under international law.

PART THREE THE IMPLEMENTATION OF THE INTERNATIONAL RESPONSIBILITY OF A

STATE
CHAPTER I INVOCATION OF THE RESPONSIBILITY OF A STATE

Article 42 Invocation of responsibility by an injured State

A State is entitled as an injured State to invoke the responsibility of another State if the
obligation breached is owed to:
(a) that State individually; or
(b) a group of States including that State, or the international community as a whole, and the
breach of the obligation:
(i) specially affects that State; or
(ii) is of such a character as radically to change the position of all the other States to which the
obligation is owed with respect to the further performance of the obligation.

Article 43 Notice of claim by an injured State

1. An injured State which invokes the responsibility of another State shall give notice of its claim
to that State.
2. The injured State may specify in particular:
(a) the conduct that the responsible State should take in order to cease the wrongful act, if it is
continuing;
(b) what form reparation should take in accordance with the provisions of part two.

Article 44 Admissibility of claims

The responsibility of a State may not be invoked if:
(a) the claim is not brought in accordance with any applicable rule relating to the nationality of claims;
(b) the claim is one to which the rule of exhaustion of local remedies applies and any available and
effective local remedy has not been exhausted.
Article 45 Loss of the right to invoke responsibility
The responsibility of a State may not be invoked if:
(a) the injured State has validly waived the claim;
(b) the injured State is to be considered as having, by reason of its conduct, validly acquiesced
in the lapse of the claim.

Article 46 Plurality of injured States

Where several States are injured by the same internationally wrongful act, each injured State may
separately invoke the responsibility of the State which has committed the internationally wrongful act.

Article 47 Plurality of responsible States

1. Where several States are responsible for the same internationally wrongful act, the
responsibility of each State may be invoked in relation to that act.
2. Paragraph 1:
(a) does not permit any injured State to recover, by way of compensation, more than the
damage it has suffered;
(b) is without prejudice to any right of recourse against the other responsible States.

Article 48 Invocation of responsibility by a State other than an injured State

1. Any State other than an injured State is entitled to invoke the responsibility of another State
in accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including that State, and is established
for the protection of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.

2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible
State:
(a) cessation of the internationally wrongful act, and assurances and guarantees of non-
repetition in accordance with article 30; and
(b) performance of the obligation of reparation in accordance with the preceding articles, in the
interest of the injured State or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility by an injured State under articles 43, 44
and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph 1.

CHAPTER II COUNTERMEASURES
Article 49 Object and limits of countermeasures
1. An injured State may only take countermeasures against a State which is responsible for an
internationally wrongful act in order to induce that State to comply with its obligations under part two.
2. Countermeasures are limited to the non-performance for the time being of international
obligations of the State taking the measures towards the responsible State.
3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption
of performance of the obligations in question.

Article 50 Obligations not affected by countermeasures

1. Countermeasures shall not affect:
(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the
United Nations;
(b) obligations for the protection of fundamental human rights;
(c) obligations of a humanitarian character prohibiting reprisals;
(d) other obligations under peremptory norms of general international law.
2. A State taking countermeasures is not relieved from fulfilling its obligations:
(a) under any dispute settlement procedure applicable between it and the responsible State;
(b) to respect the inviolability of diplomatic or consular agents, premises, archives and
documents.

Article 51 Proportionality
Countermeasures must be commensurate with the injury suffered, taking into account the
gravity of the internationally wrongful act and the rights in question.
Article 52 Conditions relating to resort to countermeasures
1. Before taking countermeasures, an injured State shall:
(a) call upon the responsible State, in accordance with article 43, to fulfil its obligations under
part two;
(b) notify the responsible State of any decision to take countermeasures and offer to negotiate
with that State.

2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are
necessary to preserve its rights.

3. Countermeasures may not be taken, and if already taken must be suspended without undue delay if:
(a) the internationally wrongful act has ceased; and
(b) the dispute is pending before a court or tribunal which has the authority to make decisions
binding on the parties.

4. Paragraph 3 does not apply if the responsible State fails to implement the dispute settlement
procedures in good faith.

Article 53 Termination of countermeasures

Countermeasures shall be terminated as soon as the responsible State has complied with its
obligations under part two in relation to the internationally wrongful act.

Article 54 Measures taken by States other than an injured State

This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke
the responsibility of another State, to take lawful measures against that State to ensure cessation of
the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation
breached.

PART FOUR GENERAL PROVISIONS

Article 55 Lex specialis
These articles do not apply where and to the extent that the conditions for the existence of an
internationally wrongful act or the content or implementation of the international responsibility of a
State are governed by special rules of international law.

Article 56 Questions of State responsibility not regulated by these articles

The applicable rules of international law continue to govern questions concerning the
responsibility of a State for an internationally wrongful act to the extent that they are not regulated by
these articles.

Article 57 Responsibility of an international organization

These articles are without prejudice to any question of the responsibility under international
law of an international organization, or of any State for the conduct of an international organization.

Article 58 Individual responsibility

These articles are without prejudice to any question of the individual responsibility under
international law of any person acting on behalf of a State.

Article 59 Charter of the United Nations

These articles are without prejudice to the Charter of the United Nations.

- The Inter-American System for the protection of human rights is a regional human rights
system, and is responsible for monitoring, promoting, and protecting human rights in the 35
independent countries of the Americas that are members of the Organization of American States
(OAS).
 Mechanisms in the European Court of Human Rights

The Inter-American System is composed of two principal entities: the Inter-American

Commission on Human Rights (IACHR) and Inter-American Court of Human Rights (IACtHR). Both
bodies can decide individual complaints concerning alleged human rights violations and may issue
emergency protective measures when an individual or the subject of a complaint is in immediate risk of
irreparable harm. The Commission also engages in a range of human rights monitoring and promotion
activities, while the Court may issue advisory opinions on issues pertaining to the interpretation of the
Inter-American instruments at the request of an OAS organ or Member State.

Additional bodies within the Inter-American System focus on specific rights or groups. These include
the Inter-American Commission of Women (CIM, by its Spanish initials), the Working Group on the
Protocol of San Salvador, and the various rapporteurships of the IACHR.

Inter-American Commission on Human Rights Seat: Washington, DC Operating Since: 1960

The Inter-American Commission on Human Rights (IACHR) addresses human rights conditions
and violations in the 35 Member States of the OAS. Established by an OAS resolution in 1959, the IACHR
began operating in 1960, observing human rights conditions via on-site visits, and in 1965 was
authorized to begin processing specific complaints of human rights violations. OAS Member States
recognized the IACHR as the region’s principal human rights body through a protocol to the OAS Charter
which was adopted in 1967 and entered into force in 1970.

The Commission is composed of seven members who are elected by the OAS Member States
and who serve part-time and in their individual capacities for four-year terms that may be renewed
once. The commissioners are supported by the staff of the Executive Secretariat.

In addition to carrying out country visits and receiving complaints, the Commission also holds
thematic hearings on specific topical areas of concern, publishes studies and reports, requests the
adoption of precautionary measures to protect individuals at risk, and has established several thematic
rapporteurships to more closely monitor certain human rights themes or the rights of specific
communities in the hemisphere.

Individuals, groups of individuals, and non-governmental organizations recognized in any OAS

Member State may submit complaints (“petitions“) concerning alleged violations of the American
Declaration of the Rights and Duties of Man, American Convention on Human Rights, and other regional
human rights treaties (listed below). The Commission receives approximately 1,500 petitions every
year.

The Commission’s Statute and Rules of Procedure outline its structure, objectives, and
procedures, although some aspects of the day-to-day processing of cases are determined by the legal
staff of the Executive Secretariat.

The Commission’s website contains its published cases (reports on admissibility, merits, friendly
settlements and decisions to archive), decisions on requests for precautionary measures, and
applications to the Inter-American Court, in addition to its annual reports, thematic reports, and country
reports. The IACHR publishes video and audio recordings of the hearings held during each Period of
Sessions; these are also organized by theme.

Inter-American Court of Human Rights Seat: San José, Costa Rica/ Operating Since: 1979

The Inter-American Court of Human Rights is the judicial organ of the Inter-American human rights
system. The Court’s mandate is more limited than that of the Commission because the Court may only
decide cases brought against the OAS Member States that have specifically accepted the Court’s
contentious jurisdiction and those cases must first be processed by the Commission. Additionally, only
States parties and the Commission may refer contentious cases to the Court.

The seven judges of the Court are independent, but are chosen by States through the OAS
General Assembly. Judges are elected for a six-year term, once renewable. The Court and its judges
convene several times per year for sessions lasting up to two weeks, but its staff works year-round.

Currently, 23 OAS Member States are States parties to the American Convention on Human
Rights, and 20 have opted to accept the Court’s contentious jurisdiction in accordance with Article 62 of
the American Convention. The 20 States over which the Court may exercise its contentious jurisdiction
are: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El
Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, and
Uruguay. Previously, Trinidad and Tobago and Venezuela had both accepted the Court’s jurisdiction, but
withdrew from that jurisdiction when they denounced the American Convention, in 1998 and 2012,
respectively.

The Court began operating in 1979, and soon issued several advisory opinions, but did not begin
exercising its contentious jurisdiction until 1986, when the Commission submitted the first contentious
case: Velasquez Rodriguez v. Honduras, regarding which the Court issued a judgment on the merits in
1988.

Over the Court’s first several decades in operation, its annual case load has more than doubled;
many more States have found themselves before the Court; and the Court has adjudicated a significant
range of rights protected by the American Convention and ancillary agreements, from extrajudicial
execution and forced disappearance cases, to labor, land, and freedom of expression rights.

The Court’s Statute and Rules of Procedure outline its structure, objectives, and procedures.

View the Court’s judgments, as well as its annual reports and other publications on its website. Videos
of the Court’s hearings are available on its Vimeo page. The Audio Library of the Court, which includes
audio files of the public hearings that have been held in the 40 years of the Court’s existence, can be
accessed via Soundcloud.

STATUTE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS

Adopted by the General Assembly of the OAS at itsNinth Regular Session, held in La Paz Bolivia,

Article 1. Nature and Legal Organization

The Inter-American Court of Human Rights is an autonomous judicial institution whose purpose
is the application and interpretation of the American Convention on Human Rights. The Court exercises
its functions in accordance with the provisions of the aforementioned Convention and the present
Statute.
Article 2. Jurisdiction
The Court shall exercise adjudicatory and advisory jurisdiction:
1. Its adjudicatory jurisdiction shall be governed by the provisions of Articles 61, 62 and 63 of
the Convention, and
2. Its advisory jurisdiction shall be governed by the provisions of Article 64 of the Convention.

CHAPTER III
STRUCTURE OF THE COURT
Article 12. Presidency
1. The Court shall elect from among its members a President and Vice- President who shall serve
for a period of two years; they may be reelected.
2. The President shall direct the work of the Court, represent it, regulate the disposition of
matters brought before the Court, and preside over its sessions.
 3. The Vice-President shall take the place of the President in the latter's temporary absence, or
if the office of the President becomes vacant. In the latter case, the Court shall elect a new Vice-President
to serve out the term of the previous Vice-President.
4. In the absence of the President and the Vice-President, their duties shall be assumed by other
judges, following the order of precedence established in Article 13 of the present Statute.

Article 13. Precedence

1. Elected judges shall take precedence after the President and Vice-President according to their
seniority in office.
2. Judges having the same seniority in office shall take precedence according to age.
3. Ad hoc and interim judges shall take precedence after the elected judges, according to age.
However, if an ad hoc or interim judge has previously served as an elected judge, he shall have
precedence over any other ad hoc or interim judge.

Article 14. Secretariat

1. The Secretariat of the Court shall function under the immediate authority of the Secretary, in
accordance with the administrative standards of the OAS General Secretariat, in all matters that are not
incompatible with the independence of the Court.
2. The Secretary shall be appointed by the Court. He shall be a full-time employee serving in a
position of trust to the Court, shall have his office at the seat of the Court and shall attend any meetings
that the Court holds away from its seat.
3. There shall be an Assistant Secretary who shall assist the Secretary in his duties and shall
replace him in his temporary absence.
4. The Staff of the Secretariat shall be appointed by the Secretary General of the OAS, in
consultation with the Secretary of the Court.