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JDDefense Notes PDF
JDDefense Notes PDF
Individuals, as subjects of international law, have rights which have already been
recognized by the international community as a whole. These rights create a
corresponding duty on the part of States to protect and preserve those rights as well
as enforce or vindicate such rights in case of violation. (Right-Duty Correlatives)
1. Personal Anecdote
Let me begin by sharing my experience with working as a paralegal with the Human
Rights Victims Claims Board, an agency tasked to receive, process, and distribute
reparations to victims of human rights violations committed during the
administration of former president Ferdinand Marcos.
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1. Hawaii Class Suit Plaintiffs are part of these claimants
1. The HCS is the foreign judgment rendered by the District Court of Hawaii
in favor of victims of GHR under ML
2. Under the HCS : Three Sub-Classes
3. The Appellate Court Decision attained finality in March 1997.
2. Then came Mijares v. Rañada, a civil case to enforce the foreign judgment
secured by the class suit plaintiffs
1. The case was filed in 1997 but was dismissed in 1998 on procedural
grounds (filing fees: 2.2 Billion)
2. 2005: The SC ruled only on the procedural issues and remanded the case
to the RTC for adjudication on the merits
3. Mijares v. Estate of Marcos (CA Decision, July 2017)
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Rule 39, Section 48: Effects of a Foreign Judgment
- Conclusive or Presumptive
- Want of Jurisdiction, Want of Notice, Collusion, Fraud, or Clear Mistake of Law or
Fact
- A key issue in human rights is the enforcement of international norms within the
domestic sphere. While expected to comply with their treaty obligations in good
faith, States are left on their own to determine domestic policies within their
system of laws. This may result in gaps in policies and inadequate remedies to
redress violations
- Given the challenges in the enforcement and implementation of human rights
within the domestic sphere, exploring new paradigms and approaches becomes
imperative. The study seeks to provide such insight by bringing international law
treatment of human rights within the domestic sphere,
- Novel Remedy
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Solely on procedural grounds = narrow examination of the facts and law. (Two-tier
examination by courts)
Two-Tier
1. Compliance with Procedural Standards
2. Underlying Case
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The approach would require the application of
Normative Tension between PRIL and PIL (and which among the two, if any, would
prevail)
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Outline of the Framework
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A foreign judgment may either be conclusive or presumptive
Conclusive on the Title: Judgment or order upon a specific thing (actions in rem)
Presumptive Evidence: Judgment or order against a person (actions in personam)
In both cases, the foreign judgment may be repelled by want of jurisdiction, want of
notice, collusion, fraud, or clear mistake of law or fact
When the foreign judgment is contrary to law, public morals and public policy
- Arca v. Javier: Divorce Decree
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expedite justice. Technicalities should never be used to defeat the substantive rights
of the other party
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Premise 2: Individuals as Subjects of International Law
Individuals have rights which have already been recognized by the international
community as a whole. These rights create a corresponding duty on the part of States
to protect and preserve those rights as well as enforce or vindicate such rights in case
of violation.
Focus:
1. Rights of Individuals under the ICCPR:
1. Article 6: Inherent Right to Life
2. Article 7: Prohibition against Torture and Inhumane Treatment
3. Article 2: Right to an Effective Remedy
2. International Covenants create the Right-Duty Correlative between Party States
and Individuals
3. International Tribunals determine the extent of rights and obligations between
these parties. They also define the nature of certain rights
1. Jus Cogens norms and Obligatio Erga Omnes
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Premise 3 and 4
Jus Cogens norms are peremptory norms of international law upon which no
derogation is permitted
- While it appears to be a creation of law under the Vienna convention, its nature is
derived from Necessary Law
- Necessary Law refers to a set of rules which is binding and immutable
across all states (de Vattel). It does not require consent of State.
- Positive Law of Nations refers to rules created with consent of states i.e.
conventions and treaties or customary laws of nations. It is binding only
between contracting states
- A Jus Cogens norm prohibit the existence of treaties which are contra bonus
mores or acts which is contrary to the general welfare of society as a whole
(minimum ethical standards)
Distinction between Jus Cogens and Erga Omnes Obligations are highly debated.
1. They both impose a standard of conduct among States
2. However, there is an opinion that JC is occupy a higher level of compliance than
EO
1. Source: Natural Law vs Treaty Law
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2. JC imposes an obligation to prohibit while EO merely gives states the Right
to Prohibit.
There is NO CRITERIA. HEHEHE. But the International Law Commission who drafted
the Convention provides direction (somewhat)
• The provision is couched in general terms which leaves its appreciation to (1) State
Practice and (2) Decisions of International Tribunals
• Jus Cogens is not a general rule of international law (otherwise it would be too
convenient) but rather it relates to the particular nature of the subject matter.
Jus Cogens : Sovereignty and Human Rights (Fundamental aspects of the State and
Individuals)
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Premise 5 and 6: Right to Effective Remedy
The right to effective remedy refers to an individual’s right to claim for the injuries
caused by a breach of obligation by the erring State. This includes reparations which
may be in the form of restitution, rehabilitation and measures of satisfaction such as
public apologies, public memorials, guarantees of non-repetition and changes in
relevant laws and practices. It likewise includes bringing justice upon the perpetrators
of human rights violations through proper judicial avenues.
ICCPR: Article 2
Philippine Law:
1. Various forms of Legislation
2. Manila Prince Hotel Case: Ubi Jus Ibi Remedium
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Integral to the right to remedy is the duty of the State to ensure equal and effective
access to justice, irrespective of who may ultimately be the bearer of responsibility
for the violation. Part of the equal and effective access to justice is the State
obligation to take measures to minimize the inconvenience to victims and their
representatives.
Next: Incorporation
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Premise 7: Incorporation Clause
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recognized to exist but there is no knowledge of its substantive content. The SC
serves as the authority to interpret such norms as part of the GAPIL under Section 2,
Article II.
Consequences:
1. Subject to Constitutional Standards
2. Application upon subjects of Philippine Law
3. Nature of Rights and Obligations arising from international law also undergoes
transformation
The transformation of these international norms has the effect of transforming the
remedies recognized under international law. Effectively, not only does the
incorporation clause transform GAPIL, it transforms rights and obligations necessarily
related to it.
Prohibition vs Torture > Remedies > Right to Effective Remedy > Reparations
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Conclusion Slide
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In almost a decade, the plaintiffs sought to enforce the right before the Philippine
Courts only to have their claim denied on procedural grounds. The failure of the Court
of Appeals to appreciate that the cause of action which gave rise to the foreign
judgment arose from the commission of gross human rights violations.
In the same way that basic human rights to life and personal security transcend
beyond race, sex, language, religion, political or other opinion, national or social
origin, birth or other status, so too must the obligations to uphold these values. A
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declaration of such doctrine by the Supreme Court would not only affirm the
commitment of the Philippines with its international human rights obligations but it
would expedite the delivery of justice to victims of gross human rights violations.
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