BERNAS PUBLIC INTERNATIONAL LAW

– INTERNATIONAL HUMAN RIGHTS

LAW PART 1
Published by symba on July 16, 2013 | Leave a response

CHAPTER 12: INTERNATIONAL HUMAN RIGHTS LAW Part 1

FROM ALIEN RIGHTS TO HUMAN RIGHTS

o Early concern about human rights was about specific classes of people, e.g.
slaves, minorities, and certain nationalities
o It was not until the birth of the United Nations that human rights of all people
became the subject of legislation
o Human Rights – those inalienable and fundamental rights which are essential for
life as human beings
o 3 generations of human rights:

1. Traditional civil and fundamental rights

2. Social and economic rights

3. Right to peace, clean environment, self-determination, common heritage of mankind,

development, minority rights

AN EMERGING INTERNATIONAL BILL OF HUMAN RIGHTS

o The UN became the cradle for the development of the new international law on

human rights
o Key obligations assumed by the Organization and its Members:

1. Higher standards of living, full employment, and conditions for economic and social

progress and development

2. Solutions for international related problems

3. Universal respect for, and observance of, human rights

o These, however, do not provide for the definitions of human rights

THE COVENANT ON CIVIL AND POLITICAL RIGHTS

o The following are substantive rights:

 1. Life, Liberty and Property, and Equality

o This, however, does not say when protected life begins, whereas the Philippines
protects ―the life of the unborn from conception‖
o There is also no provision on the right to property

On the right to life, the Covenant’s Article 6(2) expresses a bias for the abolition of the
death penalty and allows its imposition, in countries which still have death penalty, only
after conviction for the most serious crimes

o In Article 14, it is more restrictive in the matter of publicity of criminal

proceedings ―where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes or the guardianship of children
o 2 provisions on Right to Compensation:

1. Anyone who has been a victim of unlawful arrest or detention

2. Any person who has been a victim of miscarriage of justice unless the non-disclosure
of the unknown fact in time is wholly or partly attributable to him

2. Torture, ill-treatment and Prison Conditions

o Proscription on torture and other forms of ill-treatment that offend not only

against bodily integrity but also against personal dignity
o Imprisonment in conditions seriously detrimental to a prisoner’s health
constitutes a violation of Articles 7 and 10(1) of the Covenant

3. Freedom of Movement

o Right to travel within the country, right to leave the country, right to return to
one’s country, the right to change one’s residence and the right of the aliens not to be
expelled without due process
o Limitations:

a. Those provided for by law

b. Necessary to protect national security, public order, public health or morals

o The separation between the right to leave and right to return to one’s country is
to make the limitation more narrow than for the right to leave the country since exile is
now prohibited by customary law and may even be jus cogens

4. Legal Personality, Privacy and the Family

o When does one become a person? The Covenant does not say.
 5. Thought, Conscience, Religion, Expression and Political Freedoms

o This includes the explicit protection of the Right of Parents in the matter of
Religion for their children
o Covenant prohibits ―propaganda for war‖

6. Associations and Unions

o Covenant is silent about the right of government employees to form unions which
is explicit in our Constitution

7. Minorities

o This guarantees ―ethnic, religious or linguistic minorities‖

o This is one of the few rights which was already the subject of earlier treaties
(Treaty of Versailles and Polish-German Upper Silesia Treaty)
o 2-fold aspect for the concern for minorities:

1. Fear of a secessionist movement by minorities

2. Genuine concern for the human rights of minorities and the desire to flourish

8. Self-determination of Peoples

o This covers 2 important rights:

a. Right to freely determine their political status and freely to pursue their economic,
social and cultural development

b. Right for their own ends, to freely dispose of the natural wealth and resources without
prejudice to any obligation arising out of international cooperation

o Peoples – include those ruled by colonial powers; those who form a component
part of a multi-national state
o 2 aspects of Self-Determination:

a. Internal – this is the 2 important rights

b. External – belongs to colonies and to those non-self governing and Trust Territories

OPTIONAL PROTOCOL ON THE COVENANT ON CIVIL AND POLITICAL

RIGHTS

o This treaty is designed to enable private parties who are victims of human rights
violations
o Complaints may be filed only against States who have ratified the Protocol
 THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

o The rights specific to this are social welfare rights

a. Right to work

b. Right to favorable conditions of work

c. Right to form free trade unions

d. Right to social security and insurance

e. Right to special assistance for families

f. Right to adequate standard of living

g. Right to the highest standard of physical and mental health

h. Right to education including compulsory primary education

i. Right to the enjoyment of cultural and scientific benefits and international contracts

DUTY TO IMPLEMENT

o The Philippines is a party to the UN Charter, UNDHR, the 2 Covenants, and to

the Optional Protocol to the Covenant on Civil and Political Rights
o Treaty commitments become part of domestic law
o Those which are not self-executing provisions must be attended to by the
necessary steps, in accordance with its constitutional processes and with the provisions
of present Covenants
o Progress Realization – State is obligated to undertake a program of activities and
to realize those rights which are recognized by the Economic Covenant

Other Conventions on Human Rights

a. Genocide Convention

b. Convention on the Elimination of All Forms of Racial Discrimination

c. Convention on the Elimination of All Forms of Discrimination Against Women

d. Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or

Punishment

e. Convention on the Rights of the Child

 f. Convention on Migrant Workers

CUSTOMARY HUMAN RIGHTS LAW

o Prohibition on Torture, Genocide, Slavery and Discrimination

INTERNATIONAL IMPLEMENTATION OF HUMAN RIGHTS LAW

o Each country has the obligation to implement human rights law within its
jurisdiction properly done through municipal or regional courts
o 2 different procedures used by Human Rights Commission for responding to
violations of human rights:

a. Confidential consideration under ECOSOC Resolution 1503

1. The confidential findings of the Sub-Commission are brought to the attention of CHR

2. The CHR is expected to submit its report and recommendation to the ECOSOC

3. Procedure is kept confidential, but findings invariably find their way into media

b. Public debate procedure under ECOSOC Resolution 1235

o This carries 2 types of activities:

1. It holds annual public debates in which governments and NGOs are given opportunity

to identify specific situations which deserve attention

2. It engages in studies and investigations of particular situations