Professional Documents
Culture Documents
Human Rights Law Sarmiento
Human Rights Law Sarmiento
Human Rights Law Sarmiento
RENE V. SARMIENTO
—■
INTRODUCTION
Human Rights Law is the branch of public law that deals with the body of
laws, rules, procedures, and institutions designed to respect, promote, and protect
human rights at the national, regional, and international levels.
A dynamic and productive branch of public law, Human Rights Law also
deals with decisions of the Supreme Court and the International Criminal Court and
writings of advocates of human rights.
It is because of the dynamism of Human Rights Law, the wealth of this
subject, that I included in the Readings of this new edition, recent decisions of the
Supreme Court, one decision of the International Criminal Court, Pope Francis’
papal encyclical entitled “Laudato Si” (2015), the Paris Agreement on Climate
Change (2016), the Colombia Final Peace Agreement (2016) and my article entitled
“Social Justice: Roots and Wings” (2016).
Though not recent, the 2003 article of 1991 Nobel Peace Prize awardee
Aung San Suu Kyi entitled “Freedom From Fear” adds an Asian and woman voice
to the rich human rights discourse, serving as a constant reminder and continuing
challenge to those who seek to wage a revolution by human rights law.
The inclusion of human rights law in the curriculum of all law schools in
the country is one development worth rejoicing. It signals the mainstreaming into
the study of law one subject that has, through so many decades, undergone rapid
growth and has acquired its own dynamic. From the time it first appeared on the
international agenda when the United Nations Charter declared in its preamble that
the United Nations is determined “to reaffirm faith in fundamental human rights, in
the dignity and worth of the human person, in the equal rights of men and women
and of nations large and small” and “to promote social programs and better
standards of life in larger freedom,” human rights law has become an important
component of discourses and debates at the national and global arenas, an
inspirational tool and moral force in schools, in peace processes and in social
upheavals and has wormed its
vii
way in domestic, regional, and international legal systems and in peace
agreements. For instance, Article II, Section 11 of The 1987 Constitution of the
Philippines provides that the “State values the dignity of every human person and
guarantees full respect for human rights." Article 1 of The 1992 Constitution of
Czech Republic states that the “Czech Republic is a sovereign, unified, and
democratic law-abiding State, based on the respect for the rights and freedoms of
the individual and citizen.”
The basic source of human rights is the 1948 Universal Declaration of
Human Rights that has profoundly shaped and influenced local and international
landscapes. One Filipino who figured prominently in the drafting of this
Declaration was Carlos P. Romulo who served as the President of the Fourth
Session of UN General Assembly from 1949-1950. Author Morsink is correct
that there is today “not a single nation culture or people that is not in one way or
another enmeshed in human rights regimes” (Morsink, 1999, p. 5).
May this book serve as a useful storehouse of human rights information
and as an encouraging instrument to equip law students and lawyers, workers in
government and non-government sectors, advocates and social entrepreneurs an
understanding of human rights, international instruments, approaches, remedies
and preventive mechanisms aimed at addressing human rights violations and
human rights abuses. And may this book contribute in ushering a “human rights
spring” in the Philippines and various parts of the globe.
RENE V. SARMIENTO
FOREWORD
I first met Rene Sarmiento when I led a teachers’ union in Jose Rizal College
in the early eighties during martial law. The late Senator Jose Diokno, whom we all
fondly called Ka Pepe, organized the Free Legal Assistance Group (FLAG) where
Rene became an active member as a human rights lawyer. Ka Pepe helped me
organize the union by explaining to the members, composed of teachers and non-
teaching personnel, the importance of a unified, collective and informed voice for
defending and promoting teachers’ rights. When the school refused to give in to our
demands, FLAG assigned Rene to be our legal counsel when we finally waged our
strike. He stood by us in the thick of the strike and I learned in practical struggle how
to defend human rights at the picket lines. Though we lost the strike — the vigilant
strikers were all removed from office — the school came to improve its policies in
wages, working conditions and security of tenure for both teachers and non-teaching
personnel.
My second encounter with Rene was when he was chosen as one of the
framers of the 1987 Constitution. Because we were so much a part of the people’s
movement that fought the dictatorship, the street parliamentarians who were chosen
to write the Charter continued their ties with those of us who had our work in
communities, factories and schools, organizing and mobilizing various sectors of the
community in defending and promoting our specific rights as teacher, student,
lawyer, church worker, farmer, and businessman. As a member of the Constitutional
Commission, Rene was among the more active human rights lawyers who touched
base with us and consulted us often while deliberations were ongoing in the framing
of the post-Marcos charter.
The book on “Human Rights Law, Human Rights Culture” puts on record the
basics of human rights, its development and the remedies that are made available
when such rights are violated. It reminds all and sundry — students in secondary or
tertiary levels, teachers, ordinary citizens — the rudiments of what makes human
rights. As Ka Pepe put it succinctly, the enjoyment of human rights
ix
mmm
is what makes a person human, Thu laws un human right* muni therefore be fully
enforced in order to ensure that human being* both individually and collectively are
able to realize their self'worth and humanity.
At a time when milestone laws on human rights have been passed, such as the
law on the reparation and recognition of victim* of martial law, the law against
torture, the law criminalizing enforced disappearance, the law on reproductive health
care, the magna carta of women and the like, this book on human rights is a timely
reader that can help the ordinary Filipino understand how he or she can in fact enjoy
the benefits and entitlements of thoso new pieces of legislation.
In behalf of the Commission on Human Rights, let me oxpross our deep
gratitude and appreciation to Rene Sarmiento for taking time out to write this human
rights book to make accessible to the ordinary citizen and student the importance of
human rights in our daily life.
Page
Dedication..................................................................................................... iii
About the Author........................................................................................ v
Introduction.................................................................................................. vii
Foreword........................................................................................................ ix
Acknowledgment........................................................................................... xi
Chapter 1
THE NATURE OF HUMAN RIGHTS
Definition........................................................................................................ 1
Kinds........................................................................................................... 1-3
Principles........................................................................................................ 3
Characteristics................................................................................................ 4
Components................................................................................................. 4-5
Stages.............................................................................................................. 5
Three Obligations of State Parties............................................................... 5-6
Readings......................................................................................................... 6
Chapter 2
SOURCES AND FOUNDATIONS
OF HUMAN RIGHTS LAW
Chapter 3
CIVIL AND POLITICAL RIGHTS
(FIRST GENERATION OF RIGHTS)
xiii
Universal Declaration of Human Rights......................... 15
International Covenant on Civil and (•
Political Rights ................................................. 15-10
Reading's............................................................................ j.g J
Chapter 4
ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
(SECOND GENERATION OF RIGHTS)
Chapter 5
SOLIDARITY/COLLECTIVE RIGHTS
(THIRD GENERATION OF RIGHTS) J
Peace, Development, Environment........................................................ 20*22 <
Women, Children, Persons with Disabilities, I<
Indigenous Peoples................................................................:i 22 j *
Women....................................................................................................... 22
Children.......................................................................................... 22-23
Persons with Disabilities (PWDs) ...................................................... 23-24
Indigenous Peoples........................................................................... 24-25
Readings.............................................................................................. 25-26
Chapter 6
REMEDIES AND PROCEDURES FOR RESPONDING
TO HUMAN RIGHTS VIOLATIONS AND HUMAN
RIGHTS ABUSES
Human Rights Violations........................................................................... 27
Remedies .......................................................................................... 27-28
Domestic Remedies...................................................................... 28-29
Administrative Remedies............................................................................. 29
International Remedies............................................................................. 30
The Reporting Requirement..................................................................... 30
Investigation of Communications/Complaints........................... 30-31
The International Criminal Court............................................................ 31-32
The Public 1235 Procedure................................................................ 32
The Confidential 1503 Procedure.......................................................... 32-33
XIV
Special Country Rapporteurs and Thematic
Rapporteurs.................................................................................. 33-34
Readings...................................................................................................... 34
Chapter 7
PREVENTIVE MECHANISMS IN THE FIELD
OF HUMAN RIGHTS
The Office of the UN High Commissioner
for Human Rights......................................................................... 35-36
National Human Rights Institutions...................................................... 36-37
Non-Governmental Organizations (NGOs)........................................... 37-38
Readings.................................................................................................... 38
Chapter 8
THE JUDICIARY, THE ACADEME,
AND THE FAMILY ON BUILDING
A HUMAN RIGHTS CULTURE
Human Rights Culture................................................................................ 39
The Judiciary......................................................................................... 39-41
The Academe........................................................................................ 41-42
The Family............................................................................................ 42-43
Readings.................................................................................................... 43
Chapter 9
APPENDICES
xv
Chapter 1
THE NATURE OF HUMAN RIGHTS
Definition
Human Rights are the aggregate of privileges, claims, benefits,
entitlements, and moral guarantees that pertain to man because of his humanity.
Chilean lawyer Jose Zalaquett wrote that human rights are regarded as a system
of values or elements which are inherent to human dignity. In his book, “The
Rights of Man” French philosopher Jean Jacques Maritain stressed why man has
rights. “The human person,” he said, "possesses rights because of the very fact
that it is a person, a whole, master of itself, and of its acts, and which
consequently is not merely a means to an end, but an end which must be treated
as such” (,Sarmiento, 1993, p. 3).
Pope John XXIII shares the thoughts of Jean Jacques Maritain. In his
papal encyclical “Pacem In Terris,” he showed the connection between a
human person and his possession of rights. He wrote that “any human society, if
it is to be well-ordered and productive, must lay down as a foundation, this
principle, namely, that every human being is a person, that is, his nature is
endowed with intelligence and full will. By virtue of this, he has rights and
duties, flowing directly and simultaneously from his very nature....” (pp. 3-4).
Human rights are also defined as “legal and moral entitlements that have
evolved as a basis for constructing how state power is used and particularly to
limit its use against the rights of citizens”
(Wahiu, 2011, p. 3).
Human rights lawyer and civil libertarian Jose W. Diokno said in 1981
that “no cause is more worthy than the cause of human rights” and “they are
what make man human” (Diokno, 1982, p. 20).
Kinds
The rights of every person are so many, compelling Czech- French jurist
Karel Vasak in 1979 to classify them into three
2 HUMAN RIGHTS LAW, HUMAN
generations of rights. The first generation is known as the first generation of civil and
political rights. The second generation is known as the second generation of economic
social and culturalrights. The third generation is known as the third generation of
solidarity rights or collective rights. Karel Vasakfs tizthree divisions follow the French
Revolution's three slogans: Liberty, Equality, Fraternity.
1. The first generation of rights gradually evolved over centuries during the
long development of democratic society and serve as a protection of the individuals from
the arbitrary exercise of police power. Examples of these rights are the right TO LIFE
liberty and security of person; right against torture;right-ID equal protection against any
discrimination; right against arbitrary arrest and detention; right to a fair and public
hearing by an independent and impartial tribunal; right to be presumed innocent until
proven guilty; right to privacy, freedom of opinion and expression, etc. The first generation
of civil and political rights is also known as the first generation of liberty rights.
Winluck Wahiu writes that civil and political rights are individual rights against
the state and are partly seen as negative rights because they prevent the state from the
performance of certain things that are considered harmful (Wahiu, p. 3).
2. The second generation of rights started to be recognized when people
realized that possession of the first generation of liberty rights would be valueless
without the enjoyment of economic, social, and cultural rights. The experience of the
Third World countries in their struggle against colonialism, the influence of
Socialism and the encyclicals of the Popes all contributed to the development and
appreciation of the economic, social, and cultural rights. Examples of these rights are
the right to work, right to social security, right to form and to join trade unions; right
to education, right to rest and leisure, right to health, right to shelter, etc. The second
generation of economic, social, and cultural rights is also known as the second
generation of equality rights.
3. The third generation of rights is intended to benefit individuals, groups
and peoples and its realization will need global cooperation based on international
solidarity (Rosas and Scheinin, 1999, p. 65). Examples of these rights are right to
peace, right to development, environmental rights, right of self-determination, right
to food, rights of women, rights of children, and right to
CHAPTER 1 3
THE NATURE OF HUMAN RIGHTS
humanitarian disaster relief. The latest right is right to water. This third generation
of rights is also known as the third generation of solidarity rights.
Principles
The three principles of human rights are universality, indivisibility, and
interdependence.
Universality means that rights belong to and are to be enjoyed by all
human beings without distinction of any kind, such as race, color, sex or
language, religion, political and other opinion, national or social origin, property,
birth or other stature. In other words, human rights belong to everyone wherever
they are because they are human beings endowed with dignity (Sarmiento, 1995,
p. 49).
Universality also means that the internationally-recognized human rights
are the basic core minimum to be observed everywhere without regional
differences. These human rights belong to everyone, everywhere, by virtue of
being human. No one, no group, no place in the world should be denied the
enjoyment of human rights (p. 50).
The two related principles of indivisibility and inter-dependence mean
that the first generation of liberty rights and the second generation of equality
rights are inter-related and are co-equal in importance. They form an indivisible
whole and only if these rights are guaranteed that an individual can live decently
and in dignity (p. 51). The international community must treat human rights in
equal manner, on the same footing, and with the same emphasis (p. 52).
The experience of Jose W. Diokno in handling human rights cases
involving the marginalized and basic sectors confirms the validity of the
principles of indivisibility and interdependence of human rights. He said:
“As lawyer for small farmers, fishermen, workers, students,
and urban poor, many of whom have been detained, most of whom
have been threatened with detention, a few of whom have been shot
and wounded, when they were peacefully exercising their rights of
assembly, I have learned the painful lesson that we cannot enjoy
civil and political rights unless we enjoy economic, cultural and
social rights, anymore than we can insure our civil and political
rights. True, a hungry man does not have much freedom of choice.
But equally true, when a well fed man does not have freedom of
choice, he cannot protect himself against going hungry” (at p. 51).
4 HUMAN RIGHTS LAW, HUMAN RIGHTS CULTURE
Characteristics
Human rights are inherent, inalienable, and universal.
Inherent means that rights are the birthright of all human beings, existing
independently of the will of either an individual human being or group. They are not
obtained and granted through any human action or intervention (Piechowiak> 1993,
p. 5). When one is born, he carries with him these rights. They cannot be separated
or detached from him.
Inalienable (“unalienable” according to America’s Declaration of
Independence) means that no person can deprive any person these rights and no
person can repudiate these rights by himself (p. 6). It also means that these rights
cannot be the subject of the commerce of man.
Universal means that these rights belong to every human being, no matter
what he or she is like (p. 5). Because rights are universal, its promotion and
protection are the duty of all States, regardless of cultural, economic or political
systems.
Components
The four components of a human right are a subject or a rightholder, a duty-
holder, an object and implementation.
A subject or a right-holder is an individual (natural person), a group of
individuals or a non-governmental organization entitled to rights under the law and
can take legal action to protect or to promote those rights (Drzewicki, 1993, p. 28).
A duty-holder is an entity, normally a State that is obliged to respect, to
ensure and to protect the subject’s rights or demands. In human rights, States are
considered a duty-holders rather than subjects though in international law the role of
States as subjects is recognized as incontestable (pp. 28-29).
An object is the content of any given right and any duty of the holder of the
right and the holder of the obligation. This right and this duty are the human values
and needs which are found in human rights rules and norms (p. 29).
The implementation is a set of measures, approaches, and initiatives designed
to realize the right concerned: This includes laws, administrative measures, legal
writs and mechanisms adopted by the three branches of government, namely,
Congress, Executive and Judiciary (p. 29).
CHAPTER 1 5
THE NATURE OF HUMAN RIGHTS
Stages
The three stages of human rights are idealization, positivization, and
realization.
Idealization means that notions about human rights have started in the realm
of ideas that reflect a consciousness against oppression, dehumanization or inadequate
performance by the State ([Drzewicki, 1993, p. 25).
Positivization is the second stage where support for the ideas became strong
and the stage is set to incorporate them into some legal instruments, whether domestic
law or international law (p. 25).
Realization is the last stage where these rights are enjoyed by the citizens of
the State by the transformation of the social, economic, and political order (p. 25).
Readings:
Simon v. Commission on Human Rights, G.R. No. 100150, January 5,1994
Soriao v. Pineda, CA-G.R. SP No. 31546, August 10,1994
Oposa v. Factoran, 224 SCRA 792 (1993)
Baldoza v. Dimaano, 71 SCRA 152 (1976)
David v. Pres. Gloria Macapagal-Arroyo, et al., G.R. No. 171396 (2006)
Almario v. The Executive Secretary, 701 SCRA 269 (2013)
Vivares v. St Theresa's College, G.R. No. 202666, September 29, 2014
Pestilos v. Generoso, G.R. No. 182601, November 10, 2014
Sen. Jinggoy Estrada v. Ombudsman, G.R. Nos. 212140-41, January 21, 2015
Chapter 2
SOURCES AND FOUNDATIONS
OF HUMAN RIGHTS LAW
rights like Republic Act No. 6657 (Comprehensive Agrarian Reform Law), Republic Act
No. 7279 (Urban Development and Housing Act of 1992), Republic Act No. 8282
(Social Security Act of 1992), Republic Act No. 6938 (The Cooperative Code), Republic
Act No. 8435 (Agriculture and Fisheries Modernization Act of 1997); and those dealing
with third generation of rights like Republic Act No. 7192 (Women in Development and
Nation-Building Act), Republic Act No. 8505 (Rape Victim Assistance and Protection
Act of 1998), Republic Act No. 6955 (Declares Unlawful the Practice of Matching
Filipino Women for Marriage To Foreign Nationals on a Mail Order Basis), Republic
Act No. 9710 (An Act Providing for the Magna Carta of Women), Republic Act No. 7610
(An Act Providing For Stronger Deterrence and Special Protection Against Child
Abuse, etc.), Republic Act No. 8749 (Philippine Clean Air Act of1999), Republic Act No.
9003 (Ecological Solid Waste Management and Protection Act) and Republic Act No.
9147 (Wildlife Resources Conservation and Protection Act).
The 1987 Constitution is sometimes called a Human Rights Constitution because
of its many human rights and human rights- related provisions found in several of its
Articles.
The 1987 Constitution is the seventh Constitution drafted by Filipinos. The six
Constitutions were The 1897 Biak-na-Bato Constitution, The 1899 Malolos
Constitution, The 1935 Constitution, The 1943 Constitution, The 1973 Constitution and
The 1986 Freedom Constitution. All seven Constitutions have provisions on human
rights.
Philosophy
The other sources of human rights are philosophy and religion.
The writings, exposition and discourses of John Locke, Jean Jacques
Rousseau, Baron de Montesquieu, Immanuel Kant, Thomas Hobbes, John
Stuart Mill and others influenced the development and enrichment of human
rights. These Western thinkers inspired
10 HUMAN RIGHTS LAW, HUMAN RIGHTS CULTURE
the formulation of the Universal Declaration of Human Rights the English Bill of
Rights (1689), the American Declaration of Independence (1776), the French
Declaration of the Rights of Man and of the Citizens (1798) and other human
rights instruments,
John Locke (1632-1704), English philosopher, wrote the Second Treatise
of Government where he argued that sovereignty resides in the people and
explained the nature of government in terms of natural rights and social contract.
He wrote that legitimate government is instituted by the covenant of the governed
and that this legitimate government is duty-bound to preserve the rights of life,
liberty, health and property of its citizens; and, to prosecute and punish those who
violate the rights of others and to pursue the public good. This social contract
theory is what permeates many national constitutions today (Standard
Encyclopedia of Philosophy, 2012).
Jean Jacques Rousseau (1712-1978), a Franco-Swiss philosopher, authored
his masterpiece “The Social Contract” Here, he postulated a social contract by
which the citizens surrender their rights to the “general will” of the people which
must aim at the impartial good. Submission to the authority of the “general will”
of the people by the citizens who joined together into civil society through the
social contract and abandoning their claims of natural right, citizens preserve
themselves and remain free (Standard Encyclopedia of Philosophy, 2010).
Baron de Montesquieu (1689-1755), a French philosopher, wrote “The Spirit
of the Laws* his magnum opus, to explain human laws and institutions. He saw
despotism “a single person directs everything by his own will and caprice,” as a
standing danger for any government not despotic and argued that it could best be
prevented by a system of separation of powers in which different bodies exercise
legislative, executive, and judicial powers. Today, this theory of separation of
powers that initially inspired the U.S. Constitutional Convention of 1787 is what
underlies many modem governments (Britannica Concise Encyclopedia).
Religion
Embedded in the sacred scriptures and books of the world’s religions are
lessons and teachings on human dignity, sanctity of life, worth of conscience,
social justice, respect for the integrity of creation, rights of prisoners, rights of
persons with disabilities,
CHAPTER 2 n
rights of minorities, rights of children, etc. In Christianity, one finds them in the Old
Testament and New Testament.
Amos 5:24 commands “let justice flow like a stream, and righteousness
like water that never goes dry.”
Isaiah 61:1-3 instructs us “to bring good news to the poor,” “to heal the broken
hearted,” and “to announce release to captives.”
Matthew 26:35 reminds us that one who is blessed by God and one who will
inherit the Kingdom is he or she who gives food to the hungry, drink to the thirsty,
clothing to the naked, care to the ill and visitation to those in prison.
Luke 1:46 is the Canticle of Mary and it speaks of the Mighty One who has
dispersed the arrogant mind and heart, thrown down the rulers from their thrones but
lifted up the humble and filled the hungry with good things.
In the “ Our Father” the prayer taught by Jesus Christ, we are told about the
Father of all who gives food (material/spiritual bread, etc.) to His children.
The primacy attached to life and dignity of the human person, the principle of
tolerance based on the inalienability of personal conscience, respect for dwelling and the
right to asylum are found in Islam.
Koran 5:2 states that “who so slays a soul not to retaliate for a soul slain, nor for
corruption done in the land, shall be us if he had slain mankind altogether.
Koran 2:84 requires that “Ye shall not shed your brother’s blood, nor dispossess
one another of your habitations.”
Readings:
Article II, Article III, Article XIII, The 1987 Constitution of the Philippines
Universal Declaration of Human Rights
Mejoff v. Director of Prisons, 90 Phil. 70 (1951)
Kuroda v. Jalandoni, 42 O.G. 4282
John Locke’s Second Treatise of Government
Amos 5:24, Isaiah 61:1-3 (Old Testament); Matthew 26:35, Luke 1:46 (New
Testament)
Koran 5:2, Koran 2:84
Chapter 3
CIVIL AND POLITICAL RIGHTS
(FIRST GENERATION OF RIGHTS)
13
. |J
H mrnmmmm m
14 HUMAN RIGHTS LAW, HUMAN RIGHTS CULTURE
International Covenant on
Civil and Political Rights
This Covenant was adopted unanimously by 106 States and entered into
force in 1976. It is divided into a Preamble and six parts. Parts I to III (Articles 1
to 27) contain all substantive rights and some general provisions like prohibition
of discrimination and misuse, gender equality, a derogations and a savings
clause. Parts IV to VI (Articles 28 to 53)^ contain the international monitoring
provisions, some principles of .interpretation and final clauses CNowak, 1999,
pp. 84-85).
The individual rights enumerated in Part III include right to life (Article
6), the prohibition of torture and inhuman prison conditions (Articles 7 and 10),
the prohibition of slavery (Article 8), the right to personal liberty and security,
including prohibition of detention for debt (Articles 9 and 11), freedom of
movement and protection of aliens against arbitrary expulsion (Articles 12 and
13), procedural guarantees in civil and criminal trials including prohibition of
retroactive criminal laws (Articles 14 and .15), recognition, of legal personality
(Article 16), etc. (p. 85).
The first Optional Protocol to the Covenant which provides for the
possibility of individual complaints was adopted by 66 to 2 votes, with 38
abstentions. On December 15, 1989, a second Optional
16 HUMAN RIGHTS LAW, HUMAN RIGHTS CULTURE
Readings:
Orquiola v. Tandang Sora Development Corporation, 386 SCRA301
(2002)
Stonehill v. Diokno, 20 SCRA 383 (1967)
Government of Hongkong v. Olalia, G.R. No. 153875, April 19, 2007
Time, Inc. v. Hill, 385 U.S. 374 (1967)
Hudgen v. National Labor Relations Board, 424 U.S. 507 (1976)
Ru&i v. Provincial Board of Mindoro, 39 Phil. 660 U.S. v. Bustos, 37
Phil.731
Disini v. Secretary of Justice, G.R. No. 203335, February 18, 2014
Araullo v. Aquino III, G.R. No. 209287, July 1, 2014
Diocese of Bacolod v. COMELEC, G.R. No. 205728, January 21,
2015
Chapter 4
17
18 HUMAN RIGHTS LAW, HUMAN RIGHTS CULTURE
19
ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
(SECOND GENERATION OF RIGHTS)
to economic, social and cultural rights in the African Charter on Human and
People’s Rights and in the European Social Charter (ESC) (p. 104).
Readings:
JMM Promotions and Management/Inc. v. Court of Appeals, 260 SCRA
319 (1996)
Bernardo v. NLRC, G.R. No. 122917, July 12,1999 Calalang v.
Williams, 70 Phil. 726 (1940)
Phil. Merchant Marine School, Inc. v. Court of Appeals, 244 SCRA 770
(1995)
MMDA v. Concerned Residents of Manila Bay, G.R. Nos. 171947-48,
December 18, 2008
Tablarin v. Gutierrez, 154 SCRA 730
Miriam College Foundation v. Court of Appeals, G.R. No. 127930,
November 15, 2000
SSS Employees v. Court of Appeals, 175 SCRA 638 (2012)
Rene V. Sarmiento, feSocial Justice: Roots and Wings,” San Beda Law
Journal, Vol. Ill (May 2016)
Chapter 5
20
CHAPTER 5 21
SOLID ARITY/COLLECTIVE RIGHTS
(THIRD GENERATION OF RIGHTS)
process of expanding the freedoms that people enjoy and requires the removal of
major sources of unfreedom like poverty, tyranny, poor economic opportunities,
systematic social deprivation, neglect of public facilities, intolerance or
overactivity of repressive states (Barua-Yap, 2003, p. 277). Poverty embraces
the spectrum of conditions where freedoms are diminished and denied (p. 278).
The right to development was proclaimed in the UN Declaration on the
Right to Development (1986). It is also recognized in the African Charter on
Human Rights and People's Rights and the Arab Charter on Human Rights. It is
re-affirmed in instruments like the 1992 Rio Declaration on Environment and
Development, the 1993 Vienna Declaration and Programme of Action, the
Millennium Declaration, the 2002 Monterey Consensus, the 2005 World
Summit Outcome Document and the 2007 Declaration on the Rights of
Indigenous Peoples (The Right to Development at a glance, http://
www.un.org/en/events[Accessed on October 5, 2013 — Ed.]).
The right to environment is seen today as an important right because of
global warming, climate change, the damaging effects of environmental
pollution on human beings and the degradation of the world’s environment
that includes land, water, and air. But the global recognition that human
rights and environmental protection are connected and that man has a
fundamental right to an environment that permits a life of dignity and well-
being became explicit only in 1972 at the Stockholm Conference. This
conference is considered an important starting point in developing
environmental law at the global and national levels. Principle 1 of the
Stockholm Declaration linked environmental protection and human rights by
stating that “[M]an has the fundamental right to freedom, equality and
adequate conditions of life, in an environment of a quality that permits a life
of dignity and well-being, and he bears a solemn responsibility to protect and
improve the environment for present and future generations.” Today, the
right to environment is directly mentioned in the International Covenant on
Economic, Social and Cultural Rights in Article 12(2) which states that
“[T]he steps to be taken by the States Parties to the present Covenant to
achieve the full realization of this right shall include those necessary for ...
(b) The improvement of all aspects of environmental and industrial hygiene”
(The Right to A Healthy Environment, http://wwwl.umn. edu/humanrts
[Accessed on October 4, 2013 — Ed.]).
Some treaties that contain environmental obligations for States include the 1972 World
Heritage Convention, the 1985
22 HUMAN RIGHTS LAW, HUMAN RIGHTS CULTURE
Children
Although they are the world’s future, children across the globe are denied
their rights. They are exploited, abused, maltreated, de-
CHAPTER 5 23
SOLIDARITY/COLLECTIVE RIGHTS
(THIRD GENERATION OF RIGHTS)
Indigenous Peoples
Indigenous peoples are those that have historically belonged to a
particular region or country before its colonization or transformation into a
nation, state and may have different — often unique -- cultural, linguistic,
traditional, and other characteristics to those of the dominant culture of that
region or state (United Nations Permanent Forum on Indigenous Issues,
http://www.globalissues. org/article [Accessed on October 4,2013 — EdJ), In
2010, there were approximately 370 million indigenous people spanning 70
countries worldwide.
In the Philippines, indigenous peoples are estimated to comprise 10% of
the population of about 100 million. They generally live in geographically
isolated areas with poor access to basic social services and limited opportunities
for mainstream economic activities. They lack education and have inadequate
political representation. But minerals, forests and rivers can be found where they
are and make
CHAPTER 5 26
S0LIDARITY7C0LLECT1VE RIGHTS
(THIRD GENERATION OF RIGHTS)
Remedies
Rights and remedies are inseparable. For rights to be fully enjoyed and for
rights to be amply protected from harm, injury, and
27
iiM HUMAN HIUH'IV, I AW, HUMAN HlOffW CUIJfVHM
Domestic Remedies
Domestic remedies may take the form of civil remedies, criminal remedies
and administrative remedies,
A human rights victim can file a civil action for damages in the appropriate
trial courts under Article 32 of the Civil Code, This may be proved only by a
preponderance of evidence. Moral damages, exemplary damages, costs of suit and
attorney's fees maybe awarded by the court as indemnity.
The civil liability under Article 32 of the Civil Code is separate and
independent from the civil liability that springs from criminal liability under Article
100 of the Revised Penal Code.
Civil sanctions as an offshoot of a civil remedy availed of by a human rights
victim is acknowledged and affirmed by Section 12f4), Article III (Bill of Rights) of
The 1987 Constitution, by Section 21 of the Supreme Court’s A.M. No. 07-9-12-SC
(The Rule on the Writ ofAmparo), Section 20 of the Supreme Court’s AM. No. 08-1-
16-SC (The Rule on the Writ of Habeas Data) and Section 1, Rule 10 of Supreme
Court’s A.M. No. 09-6-8-SC (The Rules of Procedure for Environmental Cases).
Like civil sanctions, penal sanctions are acknowledged and affirmed by
Section 12(4), Article III (Bill of Rights) of The 1987 Constitution, by Section 21 of
the Supreme Court’s AM. No. 07-9- 12-SC (The Rule on the Writ ofAmparo),
Section 20 of the Supreme Court’s A.M. No. 08-1-16-SC (The Rule on the Writ of
Habeas Data) and Sections 1-3, Rule 9 of the Supreme Court’s AM. No. 09-6-8-SC
(The Rule of Procedure for Environmental Cases).
The human rights victim may opt to file a complaint with the Commission on
Human Rights whose task is solely fact-finding investigation. After investigation,
prosecution will be handled by the Department of Justice until case is resolved by
the court. The complaint can be filed for specific crimes relating to categories of
human rights violations like crimes violating the right of the people
CHAPTER 6 29
REMEDIES AND PROCEDURES FOR RESPONDING TO HUMAN RIGHTS
VIOLATIONS AND HUMAN RIGHTS ABUSES
Administrative Remedies
Administrative remedies for human rights violations are acknowledged and
affirmed in Section 12(4), Article III, Bill of Rights, The 1987 Constitution, The
Revised Administrative Code of 1987, Section 21 of the Supreme Court’s A.M.
No. 07-9-12-SC (The Rule on the Writ ofAmparo) and Section 20 of Supreme
Court’s A.M. No. 08-1-16-SC (The Rule on the Writ of Habeas Data).
Under the Revised Administrative Code of 1987, the heads of the bureaus
or office has the authority to discipline his employees in line with Sections 30
and 36 of Chapter 6, Book IV, Revised Administrative Code of 1987.
International Remedies
The international remedies (hr human right a viola! i human
rights abuses are based on treaties and mm4ruttiu ^ dures. ■
PHJBI
Based on treaties, the mechanisms for the enthrreinet t human
rights are the reporting requirement to ensure Stale on * \\ ance with
treaty obligations, the investigation of Onmimiidoun to determine
breaches of treaty obligat ions and t he inveel itfalP ** prosecution,
and trial of human rights violators under t he Rm ' Statute of the
International Criminal Court.,
Based on non-treaty procedures are the Public 1 33fi Procedure the 1503
Procedure established by Resolution 133ft and Resolution 1503 of the Economic
and Social Council (RGOHOC) In IPfiy and 1970, respectively.
Investigation of Communications/Complalnts
This procedure under the quasi-judicial practice of the Hum®" Rights
Committee is the most effective human rights complain^* systems at the universal
level, As of January 1000, Oft of Ilia ' State Parties to the International Covenant on
Civil and Politic® Rights, including most of the former Communist States of
Europe ®
CHAPTER 6 31
REMEDIES AND PROCEDURES FOR RESPONDING TO HUMAN RIGHTS
VIOLATIONS AND HUMAN RIGHTS ABUSES
well as an increasing member of Latin American and African States were parties
to the First Optional Protocol and submit themselves to the jurisdiction of the
Human Rights Committee in cases of alleged individual human rights violations.
A total of 844 individual communications/complaints relating to 59 States have
so far been dealt with by the Committee. Communications numbering 248 were
declared inadmissible and 308 were decided on their merits. In 236 cases, a
violation of one or more Covenant rights by the States Parties concerned, above
all by Uruguay and Jamaica, has been established (Nowak, 1997, p. 95).
Under this procedure, only individuals and not groups, NGOs or other
legal entities, may submit a communication to the Committee under Articles 1
and 2 of the Optional Protocol. The Committee’s decisions on the merits of the
case are structured like court judgments. Individual members may add their
dissenting or concurring opinions to the decisions. The lack of legally binding
effects and of any sanctions against non-cooperative governments remain the
most serious shortcoming of this procedure (pp. 96-97).
'—. . .....1
32 HUMAN RIGHTS LAW, HUMAN RIGHTS CULTURE
and aggression (Colmenares, Primer on the International Criminal Court, pp. 3-4).
There are three ways by which an investigation by the ICC may be initiated.
These are: (1) a State Party may refer as “situation* to the Prosecutor, where it
appears that one or more crimes within the jurisdiction of the Court was committed;
(2) the Security Council may refer a “situation” to the Prosecutor; and (3) the
Prosecutor may initiate investigation motu proprio or on her own, on the basis of
information received from any reliable source as to the commission of crimes.
Prosecutor then applies for a warrant of arrest with the Court’s Pre-Trial Chamber
for the arrest and surrender of the suspect. If approved, a warrant of arrest shall issue
(pp. 16-17).
these annual reports survey the information received by the special thematic
rapporteurs, the replies by governments and their lack, the actions taken by the
special rapporteur and any general comments or recommendations the special
rapporteur may wish to submit (pp. 147-148).
Readings:
R.A. No. 10368 (The Human Rights Reparation and Recognition Act of
2013)
R.A. No. 9851 (An Act on Crimes Against International Humanitarian
Law)
Republic v. Sandoval, 220 SCRA 124 (1993)
Aberca v. Ver, 160 SCRA 590 (1988)
Secretary of National Defense v. Manalo, G.R. No. 180906, October 7,
2008
Chitat Ng v. Canada, Communication No. 469/1991, Human Rights
Committee; Views of Committee, November 5, 1993, UN Doc.
A/49/40 (1844), Vol. II, at 189
Villar v. All Tech Contractors, Inc., et al. (April 2012)
Concerned Citizens of Obando v. Ecoshield Development Corp., et al.
(October 2011)
ICC decision on Thomas Lubanga Dyilo of Democratic Republic of the
Congo, July 10, 2012
Aung San Suu Kyi’s “Freedom from Fear”
I
Chapter 7
PREVENTIVE MECHANISMS IN THE FIELD
OF HUMAN RIGHTS
Readings:
Carino v. CHR, 204 SCRA 483 (1991)
EPZA v. CHR, 208 SCRA 125 (1992)
Civil Liberties Union of the Philippines v. Executive Secretary, 194
SCRA 317 (1991)
National Association for the Advancement of Colored People
(NAACP) v. Alabama, 357 U.S. 449
Kilosbayan Foundation and Bantay Katarungan Foundation v.
Janolo, et al., G.R. No. 180543, August 18, 2010
Social Justice Society v. Drilon, et al., G.R. No. 208493, November 19, 2013
South Africa’s Truth and Reconciliation Commission (1996)
Colombia Final Peace Agreement (2016) on “Comprehensive
System of Truth. Justice, Reparation and Non-Repetition0
Chapter 8
THE JUDICIARY, THE ACADEME, AND THE
FAMILY ON BUILDING A HUMAN RIGHTS
CULTURE
The Judiciary
The Judiciary in the Philippines is a key player in the development of a
human rights culture. Through its duty to settle actual
39
ftWW'WlAWv HUMAN ftiiiHfS CULTURE
“Upon the other hand, the Supreme Court now exercise the power of
administrative supervision over all courts and the personnel thereof. ... As a
consequence, the Supreme Court is now called upon to blaze new trails, and the
Philippine Bench, as well as the Bar and the people in general, are looking
forward to administrative decisions and precedent setting decisions tending to
bolster up the independence of justice and otherwise foster the people’s faith in
our courts of justice as instrumentalities of their welfare” (Sarmiento, pp. 93-
94).
The Academe
The Academe is another key player in the building of a human rights
culture in the Philippines. The 1987 Constitution of the Philippines recognizes this
important role of the Academe when, in its Article XIV (Education, Science and
Technology, Arts, Culture and Sports), it provides:
“Section 3.
1. All educational institutions shall include the study , of the
Constitution as part of the curricula.
abroad have summer human rights externships programs where law students are given
the opportunity to spend the summer working with human rights organizations, human
rights attorneys or UN bodies. The program provides invaluable practical human rights |
insights and hands-on-training for the students and assistance to [ host offices and
organizations.
Schools, centers, and institutes can be a rich resource of human rights creativity.
They can undertake human rights field trips (visit ' to prisons, correctional centers, urban
poor communities, ethnic villages); human rights boot camps (visit to museums and
pantheons combined with lectures); human rights exchange programs for students,
domestically and internationally; human rights cultural I shows and art exhibition
(showcasing songs and dances of ethnic B groups, art works of indigenous artists);
human rights dialogue between government, UN officials and students, human rights I
debate/moot court competition, etc.
This upsurge of interest on human rights education, research, and externships is a
healthy sign for the development of a human rights culture and should be sustained by
vigorous support from school administrators, teachers, students, and governments.
The Family
Last but not the least contributor in the building of a human rights culture is the
family. The 1987 Constitution of the Philippines acknowledges the importance of the
family by the inclusion of Article XV entitled “The Family.” Section 1 is about the
State’s recognition of the Filipino family as the foundation of the nation. Section 2 is
about marriage as an inviolable social institution and the foundation of the family.
Section 3 is about the State’s obligation to honor and H defend right that pertain to
spouses, children, family or family associations and the elderly.
The aphorism “values are caught not taught” carry a lot of insight and
poses a moral challenge to spouses vis-a-vis their children. In school, children
learn by instruction. At home, they learn by transmission. Proverbs 22:6 gives
this reminder: “Train up a child in the way he should go and when he is old, he
will not depart from it.”
First and hands-on lessons related to right to education, right to food,
right to culture, right to health and nutrition, right to water, freedom of
expression, equality, due process, justice, right to
CHAPTER 8 43
THE JUDICIARY, THE ACADEME, AND THE FAMILY
ON BUILDING A HUMAN RIGHTS CULTURE
worship, good governance, accountability, integrity and love, can be caught at home.
As parents are, so children will they be.
George Benson teaches: “Great ideas and fine principles do not live from
generation to generation just because they are good, nor because they have been
carefully legislated. Ideals and principles continue from generation to generation
only when they are built into the hearts of children as they grow up” (Dosick, 1995,
p. 191).
Readings:
UN Basic Principles on the Independence of the Judiciary (1985)
UN Secretary-General’s Report on the Role of Law and Transitional Justice
in Conflict and Post-Conflict Societies (August 23, 2004)
UNESCO’s Declaration and Integrated Framework of Action on Education
for Peace, Human Rights and Democracy (1999)
United Nation’s Declaration on Human Rights Education and Training
(2011)
The Family, Article XV, The 1987 Constitution
Imbong v. Ochoa, G.R. No. 204819, April 8, 2014
Poe-Llamanzares v. COMELEC, G.R. No. 221697 and G.R. Nos. 221698-
700, March 28, 2016
Chapter 9
THE ROAD AHEAD
The road ahead for human rights will not be easy. Problems and difficulties
will be there and they can come from sources like abuses of authoritarian leaders,
inequalities of political and economic powers, practices of multinational
corporations and policies of global financial institutions. These, despite advances
in the field of human rights and the moral power and influence of human rights.
In short, the battle for human rights and for human dignity is not yet fully
won. A big boost to winning the battle for human rights will be the active
promotion of human rights education towards developing a human rights culture
and a human rights way of life. This is in addition to the giant strides in “standard
set ting” (both international and domestic laws) and “institutional building”
(human rights national commission, mechanism, and International Criminal
Court).
Human rights culture and human rights way of life mean a robust
awareness of human rights and human responsibilities and actively living these
rights and responsibilities in everyday life.
More than ever, the integration of the study of human rights law in law
schools of the Philippines is a wise step in the right national and international
direction.
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%
CHAPTER I
INTRODUCTION
A. Rationale ................................................................................................ 1
B. Scope as a subject .................................................................................. 2
C. Philippine contribution to International Human
Rights Law ......................................................................................... 3
Philippine Contribution to UDHR........................................................ 3
Philippine participation on core human rights treaties............. 3
On women’s rights: “mother” of CEDAW is a
Filipina................................................................................................. 4
Membership to the International Criminal Court ..... 5
D. Human Rights laws of the Philippines................................................... 5
E. Construction of human rights instruments.............................................. 9
CHAPTER II
HUMAN RIGHTS, ITS ATTRIBUTES, ORIGIN AND THE
THREE “GENERATIONS”
STATE RESPONSIBILITY
CHAPTER IV
SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW
A. International Agreements .................................................................. 28
B. International Customary Law ................................................................ 29
Jus cogens...............................................................................;...... 30
Obligatio Erga omnes........................................................................... 31
viii
Universal Jurisdiction............................................................................... 32
Actio Popularis........................................................................................ 33
c. General Principles of Law1........................................................................ 33
The Incorporation Clause......................................................................... 34
D. Judicial Decisions and Teachings ............................................................. 34
CHAPTER V
THE INTERNATIONAL BILL OF RIGHTS
CHAPTER VI
80
APPLICATION, ENFORCEMENT AND LIMITATIONS
I j Whilin'.
CHAPTER VII
MONITORING SYSTEMS
A. Charter-based Mechanisms.......................................>..... . .................... 88
1. Complaints Procedure: The 1503 Procedure ... 88
2. State Reports.................................................................................. 89
I 3. Special Procedures ..................................................................... 89
oq
0:7 4
Special Rapporteurs..........................................................
xi
5. Universal Periodic Review.....................................90
B. Treaty-based Mechanisms..............................................................9X
Human Rights Committee.............................................................* 93
CHAPTER Vin
CHAPTER X
PHILIPPINE LAWS PROMOTING THE RIGHTS
OF THE CHILD
A, Rights of the child .......................................................................J 103
Philippine laws and regulations
concerning children................................................................... 105
A. 1. RA 9344 - The Juvenile Justice and Welfare Act 105
Minors exempt from criminal j|j
liability........................................................................... 105
The age of conditional criminal
liability...................................................................................... 106
Restorative justice.................................................................... 106
Challenges in the implementation
ofRA 9344................................................................................. 107
A. 2. RA 7610 - The Anti-Child Abuse Law...................................... 108
A. 3. RA 9321 — Elimination of the Worst Forms
of Child Labor........................................................................... 109
A. 4. RA 9975 - Anti-Child Pornography..................................... Ill
A. 5. RA 1064 - Expanded Anti-Trafficking in Persons,
Especially Women and Children ....................................... 112
CHAPTER XI
THE PROTECTION OF THE RIGHTS OF WOMEN
A. The Rights of Women ........................................................... 114
Convention on the Elimination of Discrimination Against Women
(CEDAW).............................................................................. 114
A. 1. RA 9262 - Anti-Violence Against Women and
Their Children Act of 2004....................................................... 115
The Magna Carta of Women.................................................... 116
A. 2. RA 8972 - The “Solo Parents
Welfare Act of 2000” ........................ 117
LGBT (Lesbian, Gay, Bisexual and Transgender) Rights...............
.......................... 119
CHAPTER XII
THE RIGHTS OF MIGRANT WORKERS
A. International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families......................................
120
CHAPTER XIII
CHAPTER XIV
THE RIGHT AGAINST TORTURE
A. Convention Against Torture and Other
Cruel, Inhuman and Degrading Treatment £
CHAPTER XV
THE RIGHT AGAINST ENFORCED DISAPPEARANCES
A. International Convention for the Protection of /
All Persons from Enforced Disappearance................................ 181
CHAPTER XVI
THE INTERNATIONAL CRIMINAL COURT
A. The International Criminal Court (ICC) .........................1..:.......... 135
Organs of the ICC............................................................................... 136
Responsibility of commanders and other .... 137
Application of the “Command Responsibility”
__<foctrineto civilians ........................................................................ 138
CHAPTER XVII
INTERNATIONAL HUMANITARIAN LAW (IHL)
A. Definition 139
B. Two (2) components of IHL ................................................................ 139
C. Application of IHL ............................................................................ 139
D. Origin of IHL........................................................................................ 140
E................................................................................................. Geneva Conventions
............................................................................................................. 140
F. The Hague Conventions ....................................................................... 141
G. Fundamental Rules of IHL ................................................................... 142
H. IHL versus IHRL.................................................................................. 142
Ji
Definition of “protected persons39...................................................... 143
I. International Committee of the Red Cross
(ICRC) and the Red Crescent Society...........................................A^r
J. Current Issues .......................................................................... 145
Environmental degradation and climate change............................. 146
International migration...................................................................... 146
Urban Violence .............................................1. 146
Emergent and recurrent diseases....................................................... 147
International disaster relief and
recovery assistance ...\.;i....................................*...................... 147
>
3
7
19
XV
APPENDICES
APPENDIX
A — Universal Declaration
of Human Rights....................................
APPENDIX
B — International Covenant on
Civil and Political Rights.......................
APPENDIX
C — International Convention on Economic,
Social and Cultural Rights.....................
..... 175 ’
APPENDIX
D — Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW)
.... 185
E — Convention on the Rights of the Child
APPENDIX ... 198
(CRC) .........................................
APPENDIX
F — Convention Against Torture . v and Other
Cruel, Inhuman and Degrading
Treatment ’ or Punishment
(CAT)......;....................................................... 220 j
APPENDIX
— International Convention on the Protection of the
Rights of All Migrant Workers and Members
ofgfleir Families...................................
.. 234 j
APPENDIX
International Convention for the Protection of All
Persons from Enforced Disappearance...........
. 272 j
BffiLIOGRAPHY$lKt»3p!S........................................................... 378
XVI
CHAPTER I
INTRODUCTION
I. A. RATIONALE
The United Nations General Assembly (UNGA) proclaimed the
commencement of the World Programme for Human Rights Education on January
1, 2005, following the UN Decade for Human Rights Education in 1995-2004.
Pursuant to that, the Commission on Human Rights (CHR) of the
Philippines issued Resolution Nos. A2007-028 and A2007- 029 urging the
Commission on Higher Education and law schools in the Philippines to offer
Human Rights in the Philippine Law curriculum.
Subsequently, on December 19, 2011, the United Nations General
Assembly (UNGA) adopted the United Nations Declaration on Human Rights
Education and Training. Article 3 of the declaration states that Human Rights
education and training “concerns all ages99 and uall levelsn including pre- school,
primary, secondary and higher education.
More than sixty (60) years since the adoption of the Universal Declaration
of Human Rights and the ratification of several human rights treaties by the
Philippines, as well as the consequent enactment of domestic human rights
legislations along the way, the appropriate and formal education and training on
human rights laws in the country are still slacking. There are still law schools that
do not offer Human Rights Law as a separate subject, and majority of university
courses do not include the subject in their curricula. As a result, we have
professionals who are only semiliterate in human rights. Many do not have an
inkling of what the Universal Declaration of Human Rights is all about. Millions
of Filipinos are not aware of the international human rights conventions that were
ratified by the Philippines by virtue of which obligations arise. Whenever we get
some international attention for human rights abuses, people tend to think that it is
just those “bully superpowers" interfering in our affairs again. Many people in the
government do not quite comprehend the concept of “State Responsibility."
Whenever these government people are taken to
1
2
INTKKNATIONAh ANU mill 1IMMNW HUMAN ItlUHTH UWfl
task for failure to protect human rights, they tend to think that it’s just those
loudmouthed protesters and "communists" complaining again. This lack of or
insufficient education anti training of human rights laws has spawned a lot of
unnecessary hatred and even violence in the country* and it is about time that
the United Nations declaration be faithfully heeded,
It is interesting to note* though that the Philippines is usually among the
first countries to ratify important human rights treaties, and was even one of
the members of the first. United Nations Human Rights Commission
responsible in the drailing of the Universal Declaration of Human Rights, So,
while the country's international participation has always been active, a large
part of the population at home still needs to be educated in order for them to
know, understand and respect, human rights,
Without a doubt, the most effective tool against, human rights abuse is
education: it makes a person less likely to commit human rights violations,
and less likely to become a victim either, As stated in Article 2 of the UN
Declaration on Human Rights Education and Training, “Human rights
education and twining comprises all educational, training, information,
awarenessand learning activities aimed at promoting universal respect for and
observance of all human rights and fundamental freedoms and thus
contributing to, inter alia, the prevention of human rights violations and
abuses by providing persons with knowledge* skills and understanding and
developing their attitudes and behaviours, to empower them to contribute to
the building and promotion of a universal culture of human rights *
The aim of this book is to introduce readers to the general principles of
human rights laws, the important human rights documents, the core human
rights treaties, and the strategies and mechanisms for the protection of human
rights, Both international and Philippine sources of human rights law are
treatised in this book,
I. B. SCOPE AS A SUBJECT
In the Philippine legal education curriculum, International
HumanRights Law is part of Political Law, The Bar Examinations on Political
Law in the recent past asked quite a number of questions on this particular
field of law
CHAPTER I
INTRODUCTION
The thrust of the United Nations now is to make available at all levels the
proper education and training on human rights law based on the principles of the
Universal Declaration on Human Rights and other human rights documents. The
UN Declaration on Human Rights Education and Training aims to raise
“awareness, understanding and acceptance of universal human rights standards
and principles, as well as guarantees at the international, regional and national
levels for the protection of human rights and fundamental freedoms”
a former diplomat and senator. She is a genuine trailblazer for womeas rights
and she almost singlehandedly placed the Philippines in the International map
on women rights crusade.
Shahani is credited for the preparation and submission of the complete draft of
the Convention on the Elimination of Discrimination Against Women even
without the clearance from the Philippine governments. This author would like
to refer to her as the mother of CEDAW. Another women's rights instrument
that she pushed for was The Forward Lo oking Strategies for the Advancement
of Women (FLS). As the Secretary-General for the Nairobi Conforence in 1985,
she successfully engineered the
adoption of the FLS despite the initial controversy it generated.
\
CHAPTER I
INTRODUCTION
human rights. History tells us that members of the royalty also suffered when they
fell from the ruler’s grace.
Although some of the religions started off as refuge from dictatorial regimes,
some of them evolved into dictatorships themselves. When some religions became
very powerful, some of them became selfish, controlling, manipulative and even
brutal. In the medieval period, religion was sometimes used as an instrument of
imperialism, to conquer not only lands but also the minds of the people into
submission. Several bloody crusades were fought in the name of religion. In Europe
and Asia, there were religious officials who wielded so much power not only in their
church, but also in government and in business.
Back then, the members of the working class were chattels who were not
entitled to anything that their sovereign did not want to give them. Human Rights
protection for the peasantry was unheard of, freedom of expression was taken as
heresy, and the monarchs and religious leaders were the absolute authority.
In the late 1800’s and the beginning of 1900’s, science and education
empowered more people and made them more critical. The working class started to
assert itself, and the elite began to treat workers better. The transition was a
difficult time for both classes, and a lot of blood was shed to drive home the point.
Consequently, more liberal rulers emerged, and more democratic governments
developed. The monarchies became more people- oriented, and commoners began
occupying important positions in government. The world started becoming more
liberal in its outlook and respectful of the individual’s freedom to think and
believe. Religions, on the other hand, started accepting schools of thought which
otherwise would have been regarded as heresy and outrageous. In fact, many
religious educational institutions could be credited for some of the early stages of
human rights education.
As the necessity for trading and mutual assistance among countries became
inevitable, organized governments and economies started forging diplomatic
relations. The League of Nations was born in the 1920’s, and the concepts of
sovereignty, independence, and interdependence were formalized among the
members of this
CHAPTER II 13
HUMAN RIGHTS, ITS ATTRIBUTES, ORIGIN AND THE THREE “GENERATIONS”
family of nations. Yet, at that time, human rights principles were not put in
writing, except for the outlawing of slavery and giving assistance to the sick and
the wounded in times of war.
It was after the two (2) world wars when the issue of human rights took
center stage. The destructive effects of the wars impelled leaders from different
countries to come together and forge an alliance to maintain world order
through the protection of human rights. On June 26, 1945, the Charter of the
United Nations was adopted. On December 10, 1948, the United Nations
General Assembly (UNGA) adopted the Universal Declaration of Human
Rights. December 10 has since been observed as International Human Rights
Day. Other treaties and protocols were thenceforth entered into by states. To
this day, there are ten (10) core human rights treaties.
15
16 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAW8
not mean, however, that private persons are exempt from liability for human rights
violations. They still are, although not directly within the sphere of our existing “human
rights mechanisms,” but under criminal law. Nonetheless, the Philippine ratification of
the Rome Statute in November 2011 may subject Filipino individuals to international
criminal liability for certain offenses. Human rights scholars also opine that
corporations could be liable for human rights violations.
For the meaningful enjoyment of human rights by everyone while maintaining
the delicate balance of ensuring a peaceful and orderly society under a regime of the
rule of law, the State may regulate and limit certain activities of its people. By virtue of
the Police Power, Congress may pass laws to uphold and promote human rights as well
as set parameters within which they can be enjoyed. Executive officials may implement
programs to enhance the conditions of the people and enforce laws for the observance
of those parameters, and the Supreme Court may issue orders and writs to protect
human rights. In short, that “delicate balance” can only be achieved if the State
promotes the respect for human rights, and members of society acknowledge that the
enjoyment of certain rights is subject to the State's prudent and reasonable exercise of
Police Power. Thus, the wisdom and application of the legal maxim in property law,
“Sic utere tuo ut alienum non laedas” (“So use your own as not to injure another's
property").
2
Tamanaha, Bryan, On The Rule of Law: History, Politics, Theory, Cambridge University Press (2004), citing
Chinese law professor Li Shuguang.
3
lbid.
CHAPTER III 17
STATE RESPONSIBILITY
6
Art1cle 4, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Interna tional Law
Commission, adopted at the 53rd Session in 2001.
7
Velasquez-Rodriguez vs. Honduras, Inter-American Court of Human Rights, July 29,1988, Series C, No. 4 (1988).
CHKTTVK in 21
ST\T* RKSf\)NStlULlTY
Nicaragua vs. United States of America, International Court of Justice, June 27,1986.
9
G.R. NO. 81561, January 18,1991.
CHAPTER III 23
STATE RESPONSIBILITY
contained marijuana. The Supreme Court ruled that the illegal articles could be
admitted as evidence even if these were products of a search conducted without a
warrant, because the person who conducted the search was a civilian, not a
government agent. It ratiocinated thus:
“The constitutional proscription against unlawful searches and seizures
therefore applies as a restraint directed only against the government and its
agencies tasked with the enforcement of the law. Thus, it could only be invoked
against the State to whom the restraint against arbitrary and unreasonable exercise
of power is imposed.”
“And again in the 1969 case of Walker v. State (429 S.W.2d | 121), it
was held that the search and seizure clauses are restraints
upon the government and its agents, not upon private individuals (<citing People
v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo.,
391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).”
“For one thing, the constitution, in laying down the principles of the
government and fundamental liberties of the people, does not govern relationships
between individuals.”
“Similarly, the admissibility of the evidence procured by an individual
effected through private seizure equally applies, in pari passu, to the alleged
violation, non-governmental as it is, of appellant’s constitutional rights to privacy
and communication.”
,0
G.R. No. 101063, July 30,1993.
24 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
12
//j Re Yamashita, 327 U.S. 1 (1946).
CHAPTER III %'J
STATE RESPONSIBILITY
A similar standard, known as the “Medina Standard," was adopted based on the
prosecution of US Army Captain Ernest Medina in connection with the My Lai
Massacre during the Vietnam War. In that case however, Medina was acquitted.
Under the Rome Statute, a “military commander or person effectively acting as
a military commander shall be criminally responsible for crimes committed by forces
under his or her effective command and control, or effective authority and control as a
result of his or her failure to exercise control properly over such forces,"*^ This will be
discussed more extensively under Chapter XVI. 13
13
Article 28. Rome Statute of the International Criminal Court.
CHAPTER IV
SOURCES OF INTERNATIONAL
HUMAN RIGHTS LAW
28
CHAPTER IV 29
SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW
Jus cogens
There is a unique class of customary laws that occupy the | highest echelon in
Human Rights Law hierarchy, known as jus cogens l (“compelling law”). This group of
fundamental norms is superior to other sources of international law and need not be
agreed upon by }■ States in a treaty in order to form part of their jurisprudence. They ■
are deemed to be inderogable as well.
The definition, elements, and effect of peremptory norms or Ujus cogens”
over treaties are contained in the Vienna Convention on the Law on Treaties, which
states that:
“Article 53. Treaties conflicting with a peremptory norm of i general
international law (jus cogens*). — A treaty is void if, at | the time of its
conclusion, it conflicts with a peremptory norm of general international law.
For the purposes of the present i Convention, a peremptory norm of general
international law is a ■.» norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general
international law having the same character.” ^
From this article, we can derive the following elements of jus • cogens,
namely:
1. It is a peremptory norm of general international law;
2. It is accepted and recognized by the international
community;
14
West Germany vs. Denmark, and West Germany vs. Netherlands, International Court of Justice, February
20,1969.
r £ DO .1) I? "f
CHAPTER IV 31
SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW
|
1E
are intertwined with the concept ofjus cogens and usually arise from jus
cogens rights.
These obligations were first recognized in the obiter dictum in the case
t of Barcelona Traction Light and Power Company(Belgium vs. Spain) which
is was decided by the International Court of Justice. In the Barcelona Traction
case, the ICJ made a distinction between the State’s obligation to the
international community and its obligations to another State in the field of
diplomatic protection. If a State violates a treaty with another State and the
fl treaty
15
Nicaragua vs. United States of America, International Court of Justice, June 27,1986.
32 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
only pertains, for instance, to their bilateral agreement regarding * trade, that
infringement is a private matter between the contracting States.
However, where human rights laws which are of paramount ; importance for
the international community are violated, all states have a legal interest in their
protection, for they are obligations owed by the State to the community of States.
They are obligations , erga omnes.
A respected human rights scholar, M. Cherif Bassiouni, whom this writer had
the privilege of listening to at a symposium on Human Trafficking at Johns Hopkins
University in Washington,]
D. C. in November 2010, wrote about international crimes which are
considered “jus cogens crimes” and which give rise to erga omnes obligations of a
State to prevent and prosecute. According to Prof. Bassiouni, the statute of
limitations do not apply to jus cogens : crimes, and universal jurisdiction may even
apply to these crimes. J
Universal jurisdiction
When discussing jus cogens rights and erga omnes obligations, \ reference is
usually made to the concept of universal jurisdiction.
This is because the principles of jus cogens and erga omnes f transcend
boundaries.
Under this principle, a State may prosecute a crime committed elsewhere if
such crime is a jus cogens crime. Belgium is responsible for the first widely-
implemented law on universal jurisdiction, which it passed in 1993. (In 2003, the law
was repealed and substituted with another one on extratemtorial jurisdiction.)
Perhaps one of the best known examples of the exercise of universal jurisdiction was
the issuance of a warrant of arrest by Spanish Judge Baltasar Garzon against former
Chilean dictator Augusto Pinochet for crimes committed in Chile against Spanish
citizens, which warrant was implemented in the United Kingdom. In Europe,
members of the European Union also adopt the European Arrest Warrant Scheme,
and in the United Kingdom, they have the Commonwealth Extradition Scheme.
The concept of universal jurisdiction has met a lot of criticisms from very
influential statesmen including Henry Kissinger because it is deemed an intervention
of a State’s sovereignty over its citizens.
CHAPTER IV 33
SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW
The initial fervor that welcomed the concept has waned over the years, although some
sectors are still vigorously pursuing its application by States on certain select crimes.
The creation of the International Criminal Court (ICC) and other international
criminal tribunals also reduced the need for the exercise by individual States of
universal jurisdiction. -— * •'
Actio popularis
Prosecution of jus cogens crimes may be initiated by another person or group
of persons for the benefit of another through a complaint actio popularis. Non-
government offices (NGOs) of good standing in the international community may be
allowed to sue for and on behalf of victims who do not have the means to do so.
Complaints actio popularis do not necessarily arise from omnes obligations: the
term erga omnes refers to obligations pf States to the international community,
while actio i,s a rule of procedure
in bringing a suit on another’s behalf. However, these are terms which are usually
used together in the course of the discussion on jus cogens rights and erga omnes
obligations,
In many instances, the United Nations is responsible for pushing for studies
and researches on issues of international concern, for providing an avenue for
international discussion, and for adopting principles relative to such issues.
was established by the Charter of the United Nations in June 1945 and
began work in April 1946. It is based in The Hague, The Netherlands
(which is known as the “Legal Capital of the World”), and is the only
UN organ located outside New York, USA, where the UN has its
headquarters.
At the ICJ, only member States may lodge complaints. Individuals are
not recognized as parties in that court. It exercises jurisdiction in two
(2) kinds of cases:
(а) Contentious cases - Cases submitted by State Members
TT
18
Belgium vs. Spain, International Court of Justice, July 24,1964.
36
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
19
Xiarong Li, "Asian Values and the Universality of Human Rights"(lnstitute for
Philosophy and Public Policy, 1996).
CHAPTER IV 39
SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW
to The 1899 Hague Convention on the Laws and Customs of War on Land,
became a guiding principle of sorts in determining how States should conduct
themselves during wartime when there are no specific rules enacted which apply
to the situation.
Known as the Martens Clause, it forms part of the Preamble of The 1899 Hague
Convention, the wordings of which are as follows:
“Until a more complete code of the laws of war is issued, the High
Contracting Parties think it right to declare that in cases not included in
the Regulations adopted by them, populations and belligerents remain
under the protection and empire of the principles of international law, as
they result from the usages established between civilized nations, from the
laws of humanity and the requirements of the public conscience ”20
“Marten's Clause, The Hague Convention on The Laws and Customs of War on Land, July 29,
1899,
CHAPTER V
THE INTERNATIONAL BILL OF RIGHTS
21
http://www.un.org/en/documents/udhr/history.shtml[accesed on July 17,2013.-Ed.].
22
http://www.ohchr.org/Documents/Publications/FactSheet2Rev.len.pdf[accesed on July 17, 2013.-Ed.].
40
CHAPTER V 41
THE INTERNATIONAL BILL OF RIGHTS
it was not until twenty (20) years later, on October 23, 1986, when it was ratified.
ICCPR has two (2) additional protocols:
a) The First Optional Protocol, which entered into force on March 23,
1976, provides for the jurisdiction of the Human Rights Committee to
receive and consider communications from individuals who claim to be
victims of human rights violations set forth in the ICCPR. This was
ratified by the Philippines on August 22,1989.
b) The Second Optional Protocol, which entered into force on July 11,
1991, is aimed at the abolition of death penalty. This was ratified by the
Philippines on November 20, 2007, after it passed Republic Act 9346
abolishing death penalty in June, 2006.
In both documents, UCCPR and ICESCR, the first article is on the right of
self-determination, by virtue of which peoples may “freely determine their political
status and freely pursue their economic, social and cultural development.”
ICCPR has a compliance and monitoring mechanism which is the Human
Rights Committee. (The Human Rights Committee should not be confused with the
Human Rights Council a UN Council under the UN General Assembly, or the
defunct Human Rights Commission under the ECOSOC, which the Committee
replaced.) The Committee shall be discussed more thoroughly in Chapter VII, where
relevant cases involving the Philippines will be presented.
[ optional protocol to the ICESCR, which opened for signature and [ ratification on
December 10, 2008. It has not yet entered into force I as it only has eight (8) ratifications
thus far, whereas it needs at least ten (10) member States to ratify the same. The
Philippines has not yet signed nor ratified the protocol as of this writing. The I optional
protocol provides for the jurisdiction of the Committee on Economic, Social and
Political Rights (CESCR) to receive and consider communications from individuals and
groups claiming to be victims of violations of any of the rights set forth in ICESCR.
there was really a marked difference between the two (2): in the case of Miss B,
she wanted medical treatment to be stopped (she had the right to refuse
medical treatment), while in the case of Mrs. Pretty, she wanted to be killed. 24
The right to liberty and security is further enunciated in Articles 9 and 10 of ICCPR.
Article 9 states that “Everyone has the right to liberty and security of person. No one shall
be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are established by
law ”
Clearly, the right to liberty and security is not absolute and may be
restricted on valid grounds, such as the imprisonment of a convict by way of
penalty for the commission of an offense, or the hospitalization of insanei
persons.25 In the case of persons detained during the pendency of a criminal
proceeding for'which no bail is recommended, or if one is recommended, the
same is not given, the restriction of liberty is done to assure that the accused
will not abscond and defeat the proceedings.
Article 10(1) of ICCPR states that, “All persons deprived of their liberty
shall be treated with humanity and with respect for the inherent dignity of the
human person”The aim of imprisonment shall be the reformation and
rehabilitation of the convicts. Juveniles shall be separated from adult
prisoners, and convicts shall be separated from pre-trial prisoners or those
whose cases are still being tried.
Article 10(2) of ICCPR provides for a separate treatment for convicts
from those still undergoing trial, also called pre-trial prisoners. The latter enjoys
the right to be presumed innocent until the contrary is proved. Pre-trial prisoners
are detained in centers run by local government units such as the Cebu
Provincial Detention and Rehabilitation Center (CPDRC) or the Bureau of Jail
Management and Penology under the Department of Interior and Local
Government (DILG); whereas convicted prisoners are usually transferred to
detention facilities or penal colonies operated by the Bureau of Corrections under
the Department of Justice (DOJ). The use of the word "Penology” for the DILG-
run facility is not accurate
25
Article 124, Revised Penal Code of the Philippines.
46 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
because, to repeat, the facility is mainly for pre-trial prisoners who are not yet
“penalized,” and the only convicts supposed to stay in those facilities are those
with minor sentences which may fall anyway under the Probation Law.
The temporary incarceration of pre-trial prisoners not being considered
penalty, and still possessing the right to be presumed innocent at this stage,
they may continue to exercise other political rights, such as the right to
suffrage. It is incorrect to deprive a pre-trial prisoner of personal belongings
that are necessary for his personal comfort if these do not compromise the
security and safety in the detention facility. He is not yet being punished,
unlike a convicted prisoner. Therefore, unless security is an issue, pre-trial
prisoners who can provide themselves with their own blankets and pillows or
such reasonable, no-frills basic personal necessities, should not be denied such
and be condemned to suffer the miserable, sometimes inhuman conditions of
prison just because their government cannot give them decent accommodation.
51 s
That is not to say that convicted prisoners are doomed to rot in decrepit
jails either. Article 10(1) which speaks of humane treatment and respect
applies to “all persons deprived of their liberty .” There may be a difference in the
treatment and rehabilitation program of these prisoners from pre-trial
prisoners because there is now a penal nature and punitive objective to the
incarceration.
Trafficking in persons
The applicable treaty on human trafficking is the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children,
also known as the Palermo Protocol. This treaty is one of three (3) "daughter”
treaties of the United Nations Convention on Transnational Organized Crime,
also known as the Palermo Convention.
As a form of slavery, human trafficking is a crime against humanity
when committed as part of a widespread or systemic attack. 26 The Rome Statute
of the International Criminal Court specifically includes trafficking in persons
in the enumeration of acts constituting crimes against humanity.
Many human rights scholars believe that crimes' against humanity
should be covered under the "universal jurisdiction” scheme in the same way
that Piracy on the high seas is so covered and pirates are treated as hostis
humani generis, regardless of the territorial jurisdiction of the forum State or
membership to
the International Criminal Court (ICC) of the pirates’ country. This makes a lot of
legal sense because human trafficking is a crime oftentimes committed across borders.
One of the essential elements of this crime is “exploitation,” an element which may
not be discoverable at the place of origin, and is consummated only at the place of
destination. Different places have different laws and different penalties and different
procedures, and prosecution in one State may be easier compared to another. If human
trafficking is a jus cogens crime, then all States shall have the erga omnes obligation
to prosecute or cooperate in the successful prosecution of this case, place of
commission and territorial jurisdiction notwithstanding.
In terms of domestic legislation, the Philippine law against human trafficking is
the first in Southeast Asia and is probably one of the best in the world. Republic Act
9208 (RA 9208) is thorough and treaty-compliant, and its implementing rules are well-
defined and widely participated in by multiple agencies and stakeholders. Many arrests
and successful prosecutions were accomplished under RA 9208, but it is believed that
this is just a tip of the iceberg.
While the network of anti-human trafficking forces has been successful
domestically, human trafficking involving Filipino overseas workers, has yet to be
sufficiently addressed. There had been incidents of trafficking of Filipinos in many
countries including Malaysia, the Middle East and the United States. In some cases,
arrests and prosecutions were made resulting in convictions; in others, legal action is
either wanting or less successful.
In one case in Florida, around 50 Filipinos under the Guest Worker Program
with H2B visas were exploited and were fortunately rescued by the Florida Coalition
Against Human Trafficking (FCAHT) and the Philippine Consulate in Florida, but the
prosecution was for visa fraud rather than for human trafficking. The victims claimed
that they did not receive much help from the Philippine government.
Unlike Republic Act 9775, the law against child pornography, RA 9208 does
not contain an express provision declaring human trafficking as a transnational crime.
It does not also provide for extraterritorial application, unlike Article 2 of the Revised
Penal Code. As modern-day “slavery” which is likely to evolve into a crime against
humanity, human trafficking could be a jus cogens crime.
CHAPTER V 49
THE INTERNATIONAL BILL OF RIGHTS
The perception of this author is that RA 9208 would afford more protection to its
citizens if it were to apply extraterritorially. The strongest argument in favor of this is
that roughly ten percent (10%) of Filipinos live and/or work abroad, and many
Overseas Filipino Workers (OFW5s) have been trafficked abroad.
In a case in Wan Chai, Hong Kong, 27 two (2) Filipinos were convicted for
human trafficking and penalized for a maximum jail term of three (3) years. Seven
(7) others who were arrested were deported back to the Philippines. Even if these
seven (7) others were less guilty than the two (2), there is a possibility that they
would serve a higher penalty than those who were convicted in the Hong Kong court
if they are charged under Philippine law.
One very controversial case28 which would have sprung a jurisdictional
impasse, the veracity of which had not been determined, is one involving Filipinos who
were allegedly deceived and kidnapped from Kuwait to the green zone in Iraq allegedly
by a government contractor who was working on a construction of an embassy building,
and which triggered a Congressional Hearing at the Capitol Hill where a certain Rory
Mayberry testified. Mayberry’s claims were, however, later disputed. Had this case
developed, this would have definitely been a diplomatic nightmare as the Philippines has
no diplomatic relations with Iraq and deployment of Filipino workers to that country is
prohibited. On the other hand, the embassy building in Iraq is within US jurisdiction. The
likelihood is that the victims would be deported back to the Philippines. In this event, an
extraterritorial RA 9208 would likely address the situation.
The Philippines was in Tier 2 Watch List for a couple of years before it
was elevated to the Tier 2 Status. It must be noted that this ranking is not a
United Nations ranking but rather is based on the Trafficking Victims
Protection Act (TVPA), a United States federal law. Under this law, states are
monitored and ranked based on their efforts at curbing human trafficking.
In line with its commitment to promote a world free from human
trafficking, the United States grants financial assistance
”http://www.abs-cbnnews.com/pinoy-migration/03/19/10/hk-court-sentence-2-pinoys-human-
trafficking [accesedon July 19,2013. -Ed.].
http://www.nytimes.com/2007/08/03/world/africa/03iht-phils.l.6973359.html? -r=l[accesed on July
2B
19,2013.-Ed.].
50
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
a
®2011 Trafficking In Persons Report-Colombia, available at http://www.unhcr.org/refworld/coun
try„USDOS„COL„4el2ee8a9,0.html [accesed on July 19, 2013.-Ed.).
*°lbld.
*1http://www.antiwar.com/news/?articleid=8560[accesed on July 19,2013. - Ed.).
CHAPTER V 51
THE INTERNATIONAL BILL OF RIGHTS
real differences;
(2) It must be germane to the purpose of the law;
52 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
j
b) “ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided
for by the legal system of the State”; and
c) “ensure that the competent authorities shall enforce such remedies
when granted”
Both articles do not just require States to have in place a “judicial remedy,”
but also emphasize that it must be “effective.” And a judicial remedy is not
necessarily effective just because the rules sound highfalutin or the remedy is
dispensed by authorities with impressive credentials. More importantly it must be
just, accessible, free from corruption and influence-brokering, and speedy but with
quality. Speed without quality is nothing but haste and shortcuts borne out of
laziness or insensitiveness.
32
People vs. Cayat, G.R. No. L-45987, May 5,1939.
CHAPTER V
THE INTERNATIONAL BILL OF RIGHTS
m
Access to justice
Section 11 of Article 3 of the Philippine Constitution provides I that, “ Free
access to the courts and adequate legal assistance f not be denied to any person by
reason of poverty.”
The term “access to justice” is commonly understood as the availability of
legal assistance to the poor. The programs closely associated with access to justice
are the legal aid programs and pro bono services rendered by lawyers, NGOs, law
firms and lawyer's associations.
In the Philippines, the creation of the Public Attorney's Office (PAO) and the
establishment of the Department of Justice Action Center (DOJAC) are sterling
examples of the government's effort to achieve a more accessible judicial system.
These institutions bn ye been widely successful for having reached out to the poor
litigants even in remote areas, providing legal services to the common masses with
their pool of talented, hardworking, oftentimes idealistic young lawyers.
In its broad sense, access to justice does not only refer to government-paid
legal assistance; it also includes availability of information on where and how to get
legal assistance, uncomplicated legal procedures and laws that promote the faith in
the judicial system. To be accessible, the process must be inexpensive, the
information, offices and courts must be within reach, and the procedure must be
simple. The trend now is to make the language in pleadings and motions simpler in
order that the litigants understand and be informed of their case. In many courts in
the National Capital Region, Tagalog is extensively used during hearings.
Access to justice is not always that easy in the real world, There are still laws
and rules that are out of touch with reality, or unmindful of geography that the
country is composed of more than seven thousand islands, not just a few cities. For
example, Article 125 of the Revised Penal Code requiring the filing of criminal
eases in court within a specified number of hours may be impossible in places where
there are no courts or prosecutors’ offices in the place of commission of the crime.
In islets where availability of transportation is dependent on the weather, it is either
the arresting policemen will run the risk of being sued by the prisoner for violation
of Article 125, or sued by the victim for not detaining the suspect.
54
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
Judicial writs
In the Philippines, there are remedies and writs that may be availed of by human
rights victims. Among them are:
1. Writ of Habeas Corpus — A writ issued by a judge directed to the person
detaining another, commanding
CHAPTERV 55
THE INTERNATIONAL BILL OF RIGHTS
’A.M. No.08-l-16-SC.
56 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
3)
CHAPTER V 57
THE INTERNATIONAL BILL OF RIGHTS
M
Rodolfo Beltran vs. Secretary of Health, G.R. Nos. 133640, 133661 and 139147, November 25,2005.
58
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAW*
<1) That holds a person liable for an act or omission that was not
punished at the time of commission;
(2) That imposes a penalty heavier than the one that was applicable at the
time of commission.
Section 22, Article III of the Philippine Constitution provides that,
u
No ex post facto law or bill of attainder shall be enacted”
i) Right to privacy
Article 12 of UDHR provides that, “No one shall be subjected j to arbitrary
interference with his privacy, family, home or J correspondence, nor to attacks
upon his honour^ and reputation. M Everyone has the right to the protection
of the law against such | interference or attacks ” This is almost identical with
Article 17 of 1 the International Convention on Civil and Political Rights (ICCPR). a
The Philippine Constitution provides in Article III that:
“Section 2. The right of the people to be secure in their persons, a houses, papers,
and effects against unreasonable searches a and seizures of whatever nature and
for any purpose shall be H inviolable, and no search warrant or warrant of arrest
shall j9 issue except upon probable cause to be determined personally 1 by the
judge after examination under oath or affirmation of 1 the complainant and the
witnesses he may produce Band I particularly describing the place to be searched
and the persons 1 or things to be seized.
Section 3. The privacy of communication and correspondence I shall be
inviolable except upon lawful order of the court, or 1 when public safety or order
requires otherwise, as prescribed I by law.
Any evidence obtained in violation of this or the preceding 1 section shall be
inadmissible for any purpose in any proceeding.” I
j) Freedom of movement
Article 13 of the Universal Declaration of Human Rights (UDHR) provides
for the “right to freedom of movement and residence within the borders of each
State. Everyone has the right to leave any country, including his own, and to return
to his country.” A similar provision is found in Article 12 of ICCPR.
The freedoms of movement, abode and travel are guaranteed under the
Philippine Bill of Rights, but this guarantee allows of exceptions: these freedoms
may be curtailed or restricted upon lawful order of the court, or in the interest of
national security, public safety or public health.
Section 6, Article III of the Philippine Constitution provides that, “ The
liberty of abode and of changing the same within the limits prescribed by law shall
not be impaired except upon lawful order of the court. Neither shall the right to
travel be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.”
In the case of Marcos,et al. vs.Manglapus, et .,36 which the/
Supreme Court called “unique” and “should not create a precedent, for the case
of a dictator forced out of office and into exile after causing twenty years of
political, economic and social havoc in
“RA10173.
“G.R. NO. 88211, September 15,1989 and October 27,1989.
62
INTERNATIONAL AND PHILIPPINE HUftLAN RIGHTS LAWS
the country and who within the short space of three years seeks to return, is a class by
itselfthe Supreme Court ruled that then President Corazon Aquino acted well within
her powers when she refused the petitioners’ return to the country.
37
Basic Training Manual on Investigating and Prosecuting the Smuggling of Migrants, UN0DC
(http://www.unodc.org/documents/human-trafficking/Basic-Training-Manual-ebook-E-Module'
9-1054402-June-2010.pdf) [accesed in July 10,2013.-Ed.].
CHAPTER V 63
THE INTERNATIONAL BILL OF RIGHTS
1) Right to a nationality;
Article 15 UDHR declares that, “Everyone has a right to a nationality ”
As much as possible, the status of statelessness must be avoided from
happening. Essentially, Article 15 would involve two (2) things: the acquisition and
the change of nationality.
Citizenship may be acquired through any of the following modes:
a) Jus sanguinis (by blood) — The child acquires the citizenship of his
parents, regardless of the place of birth (the mode of acquisition in the
Philippines);
b) Jus soli (by place) — The child is a citizen of the place where he was
born (mode of acquisition in the US);
c) Naturalization — A foreigner is granted citizenship by another country
through a legal act. In the Philippines, such legal act could be a decree
by a tribunal or quasijudicial tribunal. Under exceptional circumstances,
citizenship could be granted by law or by presidential proclamation.
A child of a Filipino citizen is considered a Filipino regardless of his place
of birth. Under Article 4, Section 1 of the Philippine Constitution, it is not
necessary that both parents be Filipinos; what
64
INTERNATIONAL AND PHILIPPINE HUMAN RIGHT# LAW#
institution, is the foundation of the family and shall be protected by the State."
Marriage is not an ordinary contract between parties. It is a social
institution which enjoys the protection of the State and whence legal rights and
obligations spring. Any doubt on the marriage should be resolved in favor of its
validity.38
The internationally accepted age of marriage is 18 years old. In the
Philippines, the Family Code requires that both parties be at least 18 years old to be
able to legally contract marriage. However, in places where the Shari’ah Law
applies, the age is lower.
While the right to found a family is guaranteed, there is still the
controversial issue as to the extent that married couples adopt methods to
effectively plan the size of their family. Some groups are espousing the belief that
human rights apply only to children already born, while the Holy See believes that
human rights apply even to the unborn: The 1987 Philippine Constitution provides
that the life of the unborn must also be protected.
There is also the issue of marriage between the same sexes, and of adoption
by same-sex couples. A few countries in Europe have legalized same-sex
marriages, such as Spain, Sweden, Belgium, Iceland, Netherlands, Norway,
Portugal, and Denmark. There are countries that do not have laws allowing such
marriage but which recognize property rights of couples in same-sex relationships.
A great majority of the States still refuses to bring this issue to the table.
n) Right to property
Article 17 of UDHR declares that, “Everyone has the right to own
property alone as well as in association with others. No one shall be arbitrarily
deprived of his property.” One of the features of a democratic society is the right
to ownership of property, including real property. This is not particularly true
under certain forms of government, where real property are owned by the State,
or owned by the ruling class.
38
Malcampo-Sin vs. Sin, G.R. No. 137590, March 26, 2001.
66 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
G
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
q) Freedom of expression
Article 19 of the Universal Declaration of Human Rights as well as Article 19
of the International Convention on Civil and Political Rights (ICCPR) guarantee the
freedom of opinion and expression. ICCPR states, however, that the right may be
subject to restrictions as shall be provided by law and are necessary for the respect of
the rights or reputations of others, or for the protection of national security or of
public order, public health, or morals.
Freedom of expression is a fundamental right in every democracy. However, it
is oftentimes abused. It is often lost to some people that the right, though
fundamental, is not absolute. It is subject to restrictions provided by law. The
restrictions may differ from State to State: different states have different degrees of
tolerance and may thus have different interpretations of how much freedom is within
legal limits. Usually, traditional and religious backgrounds and political climate are
factors that determine the degree of tolerance of a state.
Hence, libel laws may validly be passed to regulate this freedom. In the case of
Chaplinsky vs. State of New Hampshire,41 the Court said that certain categories of
speech fall outside the bounds of constitutional protection, such as the lewd and the
obscene, the profane, the libelous, and insulting or fighting words.
In the Philippines, Inciting to Rebellion and Inciting to Sedition are crimes
punished under the Revised Penal Code. In determining whether an utterance could
be considered criminal, the aDangerous Tendency Rule39 may be applied. The
application of this test can be tricky, and sometimes can be uweather-weather lang”41
42
That time was when the leadership was so paranoid with criticisms that even purely
legitimate and constructive comments were regarded as “subversive,” “communist”
and “criminal.”
The issue of morals is another tricky one. While considered sufficiently
educated compared to others in some parts of the world, we cannot be described as
very “liberated” as a people. In many aspects we are conservative, and this could be
due to the deep influence of religion, wherein morality is often equated with
41
315 U.S. 568 (1942).
42
A quote attributed to former President Joseph "Estrada" Ejercito.
CHAPTER V 71
THE INTERNATIONAL BILL OF RIGHTS
religiosity. In one incident, when an artist displayed an artwork featuring a religious icon
with a male genitalia, which according to him was an expression of his art, the piece was
assailed for being immoral and the controversy sparked so much outrage. The outrage
itself drew criticisms because allegedly, that same outrage was not displayed in other
scandals, such as the many instances of sexual abuses by religious people and violent
rituals committed as religious or cult practice. Critics deem these more immoral compared
to the image of a part of a person’s anatomy being placed where it should not be. It seems
that the society’s gauge of morality has something to do with religious tolerance or
intolerance/
Sometime in September 2010, a secularist dressed up in “Jose Rizal” costume
expressed his disgust at religious meddling with government affairs. There was nothing
libelous about his principal message per se except that he resorted to name-calling to
address his subjects. He claims “freedom of expression.” The Revised Penal Code,
however, contains provisions against the interruption of a religious ceremony and Article
133 penalizes acts that offend religious feelings. Aside from libel, there are also laws
penalizing oral defamation, inciting to rebellion and sedition, and the unlawful use of
media.
The recent passage of the Cybercrime law sent jitters to bloggers who fear that
the provision on e-libel might be used to stunt freedom of expression. While there is no
debate that freedom of expression is a fundamental right that is not absolute and may be
regulated, among the issues raised against the constitutionality of the Cybercrime Law
was the fact that a single act may be punished twice (under the Revised Penal Code on
Libel as well as under the Cybercrime Law), and that the Cybercrime law carries with it a
higher penalty than the provision in the Revised Penal Code.
However, we may draw some answers to these questions by looking at the
Firearms Law. It must be remembered that until the famous Ladjaalam and Agote rulings,
the single act of carrying an unlicensed firearm during election period was prosecuted
both under the Firearms Law and the COMELEC gun ban. The Supreme Court ruling in
People vs. Doriquez43 on what is and what is not Double
43
G.R. NO. L-24444-45, July 29,1968.
72 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
Jeopardy remains to this day a good ruling. Further, the difference in the
severity of the penalty for high caliber and low caliber firearm was never
declared unconstitutional.
4
*$ection 1, Article II, 1987 Philippine Constitution.
^G.R. No. 119976, September 18,1995.
••G.R. No. 120265, September 18,1995.
74 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
It was not until 1933 that the women in the Philippines were ] allowed to vote,
with the enactment of Act 4112, otherwise known as ) Women Suffrage Act. Since
then, the Philippines has had exemplary women in public service. It is one of the few
countries in the world that had two (2) lady presidents, a lady chief justice, a lady
international judge, and several lady senators who are definitely not push-overs in the
Senate.
Nations. The Senior Citizen’s Act granting discounts at restaurants, groceries and
drugstores to persons sixty years old or over is another scheme, specifically designed for
senior citizens.
u) Right to work
Article 23 of UDHR declares that, “Everyone has the right to work, to free
choice of employment, to just and favourable conditions of work and to
protection against unemployment. Everyone, without
any discrimination, has the right to equal pay for equal work_________"The
right to work and to the enjoyment of just and favorable conditions of work are also
recognized under Articles 6 and 7 of ICESCR.
Labor is a primary social economic force, and the State “shall afford full
protection to labor, local and overseas, organized and unorganized, and
promote full employment and equality of employment opportunities for
aZZ.”49
4
*Section 3, Article kill, 1987 Philippine Constitution; also Section 2, RA 8042, as amended.
76 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
and necessary social services. ..." Article 11 of ICESCR recognizes the right to
adequate standard of living and the right of everyone to be free from hunger. The
said article exhorts member States to take measures to improve food production
and distribution.
The rights to food, housing, and medical are the three (3) most basic rights
of human beings. The term "adequate” shall be understood to mean the minimum
requirement for subsistence. However, even the minimum requirement may not
be met in certain jurisdictions. Usually, compliance depends on the state’s
economic capability.
As "positive rights,” the responsibility of the State is to do something to
ensure that these rights are not denied to the citizens. This does not mean that the
State must give away houses and food indiscriminately, because that could
produce disastrous effects, aside from not being feasible or affordable. Rather, it
means that the State must establish programs and infrastructures to spur activities
and opportunities for its citizens. The principles of Social Justice have often been
applied to this right, wherein states are urged to provide ways and means that
ensure access to food, housing, health care, and clothing regardless of wealth or
status in life.
x) Right to education
Article 26 of the UDHR and Article 13 of the ICESCR recognize the right of
everyone to education. In these human rights instruments, it is stated that:
a) Elementary education shall be free and compulsory;
b) Secondary education in its different forms, including technical and
vocational, shall be made generally available and accessible;
c) Higher education shall likewise be accessible on the basis of
capacity.
One of the targets in the United Nations Millennium Development Goals
(MDG) is to "ensure that, by 2015, children everywhere, boys and girls alike, will
be able to complete a full course of primary schooling.”
CHAPTER V 77
THE INTERNATIONAL BILL OF RIGHTS
The Philippines has long complied with the MDG on free elementary
education. In most barangays in the country, there is also free secondary education.
On February 27, 2012, Republic Act 10157 was passed, providing for the
implementation of the free universal kindergarten program for all public schools.
z) Right of self-determination
In both the ICCPR and ICESCR, Article 1 states that, “All peoples have the
right of self-determination. By virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural development” As part of
international law, both covenants emphasize the political right of “peoples” to
determine their political status. This right is reiterated in Article 1(2) of the United
Nations Charter which states that one of the purposes
INTERNATIONAL AND PHILIPPINE HUMAN UMIITH LAW#
of the UN is: *Tb develop friendly relations among nations based on respect
for the principle of equal rights and self-determination of peoples, and to take
other apptvpiiate measures to strengthen universal peace*
The word “peoples” has not been officially defined, but has been taken to
mean a group of persons sharing the same political, social, racial, and cultural
backgrounds. Ethnic minorities, religious groups and tribes with a slightly
different form of art or dialect are not considered separate “peoples” under
International Law, but are part of the larger group with the common
background.
There used to be a number of “peoples” who did not have their own
sovereignty, owing mostly to invasions, colonizations and war. Philippines,
Indonesia, India and many others in South America, Africa and Europe were
under the control of governments other than their own. Filipinos shared a
common culture and were “one people” before the Spaniards came. They had a
form of government, were long engaged in economic relations with other
nations, had several forms of religion, and had its own unique literature and
alphabet before the Spanish conquest.
The right of self-determination gets problematic where the issue of
territory is concerned. The conflict between Israel and Palestine revolves
around this issue. They are definitely separate peoples but they lay claim on the
same territory. The issue of the Inuit in Greenland who are asking for self-
determination and independence from Denmark is another matter because they,
as a people, have their own territory. The issue of Taiwan and China is that
Taiwan is claiming sovereignty and is occupying a separate territory but they,
as a people, are historically Chinese. The issue of the Indian nations in the
United States is similar to the issue of the Aboriginals in Australia, who
historically owned the territories where they are now considered “minorities.”
In the United States however, the Indians are given “territories” in the form of
reservations, and exercise autonomy in the governance of their “nations.” In
the case of the Aboriginals in Australia, their native titles to their indigenous
lands have been very restricted by law and jurisprudence.
There is no rule or procedure under International Law for secession by a
group from an established State as a mode of exercising the right of self-
determination. Paragraph 6 of UN
CHAPTER V 79
THE INTERNATIONAL BILL OF RIGHTS
80
CHAPTER VI 81
APPLICATION, ENFORCEMENT AND LIMITATIONS
laws (e.g.y 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 Philippine 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.50
Generally accepted principles of international law comprise just one of the
four (4) sources of international law. In so far as the other source, z.e.,
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.
so
Section 2, Article II, Philippine Constitution.
“Article 11, Vienna Convention on The Law of Treaties, January
“Article
27,1980.
12, ibid.
S3
lbid.
INT1CUNATI0NAD AND WUUmNK HUMAN MJUHYW,Ufy
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 that State.57
Reservations are not allowed when:
1) It is prohibited by the treaty;
2) It is not included in the reservations specified by the treaty;
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.59
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.60
Denunciation:
Denunciation means the withdrawal by a State Party from a treaty. 61
Treaties such as the CRC, ICERD, and CAT allow denunciation; ICCPR,
ICESCR and CEDAW do not allow denunciation.
58
Article 19, ibid.
59
Treaty Reference Guide (http://untreaty.un.org/ola-internet/assistance/guide.htm) [accessed on July 19,
2013. - Ed.].
60
Ibid.
61
Article 42, Vienna Convention on The Law of Treaties.
84
Domestic enforcement:
In order to effectively protect individuals from 1 nfringornenU on their human rights,
enforcement at the national level i# necessary and desirable. The enactment of national laws to
enforce international human rights commitments has been a Philippine strategy. In so doing, it
translates a soft law into a giving
it more teeth, so to speak, and making individual violators directly accountable.
In the Philippines, we have the Revised Penal Code and other penal statutes which
criminalize human rights violations and punish individual violators. Title 2 thereof, on Crimes
Against the Fundamental Laws of the State, punishes violations of human rights similar to
those guaranteed under the ICCPR. The New 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 to justice before hybrid courts, ad hoc international
courts, or before the ICC. In the latter court, however, its jurisdiction is limited to the crimes
of genocide, crimes against humanity, war crimes and crimes of aggression.62 These are all
criminal courts.
“Article 5, Part 2, Rome Statute of the International Criminal Court, July 1, 2002.
CHAPTER VI 85
APPLICATION, ENFORCEMENT AND LIMITATIONS
1. Court action
Where the violator is a State, redress may be sought at the national,
regional, or international courts. In the 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
(ICJ), only States may bring a case against another State. At the International
Criminal Court (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). 63 At the European Court of
Human Rights, individuals are allowed to directly bring a case against a State.
2. Diplomatic means
Aside from bringing 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.
3. 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.
4. Countermeasures
Countermeasures are responses by a State to the wrongful conduct of
another, as a tool of self-redress.64
63
The Rome Statute of the International Criminal Court defines only three (3) of the four (4)
crimes enumerated therein.
64
Cannizzaro, Enzo: The Role of Proportionality in the Law of International Countermeasures
at http://ejil.oxfordjournals.Org/cgi/content/abstract/12/5/889[accessed on July 19,2013.-
Ed.].
- ... iat-,
vjmmM
IgP
86
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
5. Military Intervention
The use of armed force is still being resorted nowadays. The military
intervention in Libya in 2011 was by virtue of a United Nations Resolution. The
use of force in Iraq, however, did not have such authority.
Derogation:
Some human rights are non-derogable, and some may be suspended or restricted
by States.
Article 4 of ICCPR allows the derogation of rights, provided
that:
1) There is a public emergency which threatens the life of the nation;
2) The existence of public emergency is officially proclaimed;
3) The derogation is to the extent strictly required by the exigencies of the
situation;
CHAPTER VI 87
APPLICATION, ENFORCEMENT AND LIMITATIONS
4) The measures taken are not inconsistent with the State’s other
obligations under international law;
5) The measures taken do not involve discrimination solely on the
ground of race, color, sex, language, religion, or social origin.
CHAPTER VII
MONITORING SYSTEMS
The rule of pacta sunt servanda requires that States comply with their
obligations arising from international human rights laws and treaties. In
order to check on the compliance by States of these obligations, monitoring
mechanisms are set up. These monitoring mechanisms may be:
1. Charter-based — Those provided under the United Nations Charter
itself, or through UN organs, such as the Human Rights Council
(formerly Human Rights Commission) and the ECOSOC. Examples
are ECOSOC j Resolution No. 1503 (“1503 Procedures”) and No.
1235 (“1235 Procedures” on Special Rapporteurs). The J Universal
Periodic Review is another such mechanism.
2. Treaty-based — Those provided under the treaties 1 themselves.
The International Covenant on Civil and Political Rights 1
(ICCPR), the International Covenant on Economic, Social and
Cultural Rights (ICESCR) and the Convention | on the
Elimination of Discrimination Against Women | (CEDAW) have
express provisions on the monitoring I mechanisms to ensure
compliance of said conventions. I The Convention on The Rights
of the Child (CRC) also § contain such provision but its
implementation had been 1 put on hold for some time.
A. CHARTER-BASED MECHANISMS
1. Complaints Procedure: The 1503 Procedure
The 1503 Procedure originally passed under the ECOSOC E has been
carried over to the Human Rights Council complaints I procedure. This is a
procedure whereby individual complaints from i human rights victims or
groups representing them are accepted by I the UN body.
Among the main features of the complaint mechanism is R its
confidentiality provision and the need for prior exhaustion of | domestic
remedies.
88
CHAPTER VII 89
MONITORING SYSTEMS
2. State Reports
States are required to render a report on their human rights situation.
These annual reports are called Country Reports on Human Rights Practices or
the Human Rights Reports. They contain situationers on the civil, political, and
economic rights as set forth in the Universal Declaration of Human Rights and
other treaties.
The State Reports are usually comprehensive, but they may not
necessarily reflect the real sentiment of their citizenry, considering that States
understandably tend to downplay under-achievement and to sugarcoat minor
setbacks in order to avoid international embarrassment or condemnation. Some
States are not very prompt in submitting their reports.
3. Special Procedures
Special Rapporteurs
Aside from reports coming from the States themselves, United Nations
rapporteurs also provide the UN important information on the extent of
compliance by States in their international commitments. Rapporteurs may be
country-specific or thematic. Special rapporteurs, experts or envoys are
sometimes sent to member States in order that they make an investigation and
report to the UN on the human rights violations committed.
There are only a few countries where special rapporteurs have been
assigned to, and these are countries where reports of human rights violations
are rampant. Among these countries are North Korea, Somalia, Sudan, Iran,
Haiti, and Burundi.
10
90
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
that this procedure might not be able to depict the real human rights f situation in a
State, for two (2) reasons: first, because the State making the report might try to
sanitize it; and second, because the ■ States composing the troika, represented by
diplomats, are wont to | employ diplomacy instead of confronting the reporting State on
a j human rights violation.
Among those in the first batch in the first reporting round in 2008 that
rendered the report was the Philippines. The report j was presented by a team headed
by Secretary Eduardo R. Ermita, | Executive Secretary and Chairman of the
Presidential Human | Rights Committee, on April 11, 2008. It was adopted on April j
15, 2008. The States serving as troikafor the Philippines were j Germany, Malaysia,
and Mali.
The second UPR report of the Philippines was presented by I the team led
by the Secretary of the Department of Justice, Leila de | Lima in 2012.
B. TREATY-BASED MECHANISMS
Human rights treaties usually contain provisions to monitor compliance by
States of their obligations under the treaty. It must be clarified though that these
monitoring mechanisms are not the same as the courts of justice or human rights courts
where awards for monetary damages may be given. These treaty bodies render “views”
on complaints brought before it. Occasionally, they issue orders which are in the nature
of provisional remedies. In one case, the Human Rights Committee ventured to say that
provisional j remedies are mandatory.65
The monitoring bodies are the following:
1. Human Rights Committee — Composed of 18 members,
is the body charged with overseeing compliance of the • ; ICCPR. The
Committee reviews the reports of the 162 States who ratified the ICCPR,
as well as the individual petitions against the 114 States who ratified the
Optional Protocol to the ICCPR.
“Piandiong vs. The Philippines, Case No. 869-1999, Human Rights Committee.
92
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAW#
are submitted and reviewed once every five (5) years. Its
individual complaint mechanism has not yet been activated.
8. Committee on the Rights of Persons with Disabilities — Monitors the
Convention on the Rights of Persons With Disabilities. It is
composed of 12 members serving four (4)-year terms.
As previously stated, treaty bodies render views on
complaints lodged before them, and concluding observations
based, dh the State reports.
66
Piandiong vs. Philippines, Case No. 869-1999, Human Rights Committee.
94
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
“Id.
“Case No. 1045-2002, id.
“Case No. 1320-2004, id.
"Case No. 1560-2007, id.
’’Case No. 1466-2006, id.
"Case No. 1421-2005, Id.
CHAPTER VIII
THE UNITED NATIONS
95
INYRUNAI'lONAl* AND HUUPP1NK HUMAN MOUTH Utyg
out specific tasks, with the exception of the International Court of Justice and the
Trusteeship Council.
Among the subsidiary bodies in the UN General Assembly are the: 1)
Human Rights Council, 2) International Law Commission, and the 3)
Disarmament Commission.
,
Specialized agencies commissions and bodies
99
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
flexed muscles and committed USD 1 billion from its USD 77 billion-
reserves with the International Monetary Fund in 2012, for the monetary
benefits in terms of ROI ag well as a show of commitment to this goal.
The country joined the effort of the international community to rescue
financially-distressed countries to prevent a worldwide economic crisis.
It was hoped that the money could help some European countries that
were suffering from economic reverses, as this could in turn help
Overseas Filipino Workers (OFWs) working in those countries. As part of
the country’s reserves, the money could not be used for public spending
anyway. Therefore, it was deemed more financially-beneficial (direct
benefits in terms of interest) if loaned to the IMF. The commitment of
USD 1 billion for a global cause would also benefit the OFW’s working
in financially-distressed countries (indirect benefits in terms of
employment). An added bonus is that the Philippines would now pay
lesser interest for its current debts because it is not considered a high-risk
debtor anymore. Indeed, this is way better than some few corrupt leaders
stashing away government money in secret private accounts.
CHAPTER X
PHILIPPINE LAWS
PROMOTING THE RIGHTS OF THE CHILD
103
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
On September 20, 1990, the Convention of the Rights of the Child (CRC)
entered into force. It defines a childas a person under 18 years of age, unless he
attains majority earlier under a law applicable to him, 73 and declares that uthe
child, by reason of his physical and mental immaturity, needs special safeguards and
care, including the appropriate legal protection, before as well as after birth"
The Convention advocates the following principles:
a.) The best interest of the child shall be the primary consideration in actions
concerning children;
b) States Parties shall ensure the maximum extent possible for the survival
and development of the child, and recognizes the child's right to the
enjoyment of the highest attainable standard of health;
c) A child has the right to express his/her views freely in 1 all matters
affecting him/her and the views of the child shall be given due weight
in accordance with his/her age and maturity;
d) The child shall have the right to freedom of expression (subject to
certain restrictions);
e) States shall respect the rights of the child to freedom of thought,
conscience, and religion;
f) States Parties recognize the rights of the child to freedom of association
and the freedom to peaceful assembly;
g) No child shall be subjected to arbitrary or unlawful interference with
his/her privacy, family, home or correspondence, nor to unlawful
attacks on his/her honour and reputation; :f
h) The child has the right to education and standard of living adequate for
the his/her developmement;
i) The child has the right to rest and leisure and to be protected from
economic exploitation.
,t.1
' * *l '
I
73
Article 1, International Convention on the Rights of the Child.
CHAPTER X
105
PHILIPPINE LAWS PROMOTING THE RIGHTS OF THE CHILD
In drag lairs. police reports have it that minors are used as couriers and
peddlers. There are still a lot of gaps that havo to bo addressed in order for
this law to be successfully implemented, foremost of which are logistical in
nature. The law talks about facilities that are practically non-existent in many
municipalities. It talks about the perfect diversion and intervention programs
but without the necessary trained personnel to conduct the same.
Recently, there is a move to lower age of criminal liability from over 15
years of age to over 12 years of age. While there is a strong support for this
move, owing to the observed difficulty in implementing the provisions of RA
9344, but which difficulty is actually caused by logistical inadequacies rather
than mistakes in determining the age of responsibility, the move also faces
very strong opposition from children’s rights advocates. Instead of addressing
the logistical concerns and challenges, it seems that some lawmakers would
prefer the shortcut of sending the CICL’s to jails instead, and which would
still actually bring us to the same issue of logistics, as more children inmates
would still require the construction of more facilities, more supplies and more
personnel.
Iii the case of Sanchez vs. People,75 citing Araneta vs. People76 the
Supreme Court emphasized that there are four (4) kinds of .crimes falling-
underS^ti^lQ-,JRA 7610jto wit:'
‘The provision punishes also four distinct acts, i.e., (a)
child abuse. (b) child cruelty, (c) child |xpJmtaffqi| and (d) being
respgnsiblejfor^(m& child's development.
The Rules and Regulations of the questioned statute distinctly and
separately defined child abuse, cruelty and exploitation just to show
that these three acts are different from one another and from the act
prejudicial to the child’s development.”
74
$ection 3, RA 7610.
75
G.R. NO. 179090, June 5, 2009.
76
G. R. NO. 174205, June 27, 2008
110 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWg j
M
g) Is performed under particularly difficult conditions; or
“h) Exposes the child to biological agents such as bacteria,
fungi, viruses, protozoans, nematodes and other
parasites; or
a
i) Involves the manufacture or handling of explosives and
other pyrotechnic products.”77
The Philippines has one of the best records on womertt ! rights protection.
In the World Economic Forum's Global Gender Gap Report in j 2012, the
Philippines is No. 1 in Asia in both education and health of women, and is No. 8 in
the global index. Filipino women also did well in economic participation and
opportunity and political empowerment.
Despite the more open-minded culture of Filipinos towards women
empowerment, there are still bigots even in some supposedly { “educated”
sectors of society. For instance, in one forum on women's f rights, one male
public official publicly stated that he would never I “allow his wife to behave
in a manner not acceptable to him.” Also, | domestic violence still exists in
some homes.
.
re
Article 5, Convention on the Elimination of
Discrimination Against Women. “Section 3, RA 9262.
p
One of the new provisions of the law is the special justifying I circumstance
of Battered Women Syndrome (BW$) which could I exculpate a woman offender
from criminal liability. The courts shall I be assisted by psychiatrists or
psychologists in order to determine 1 BWS in a woman. But even if she has BWS,
she may still gain custody I and parental authority over her children. On the other
hand, the I person who perpetrated the abuse against the woman suffering from 1
BWS shall not have custody over the minor children.81
81
Article 28, RA 9262.
82
Section 4, Chapter II, RA
9710.
117
CHAPTER XI
THE PROTECTION OF WOMEN’S RIGHTS UNDER PHILIPPINE LAWS
I
I of which women are denied or restricted in the recognition and I protection of their
rights and in their access to and enjoyment of I opportunities, benefits, or privileges; or
women, more than men, are | shown to have suffered the greater adverse effects of those
measures | or practices; Provided, finally, That discrimination compounded by | or
intersecting with other grounds, status, or condition, such as | ethnicity, age, poverty, or
religion shall be considered discrimination against women under this Act.”83
“Gender Equity” refers to the ^61iciesy'nstruments,?programs,
! /“Services, and-Actions that address the disadvantaged position of women in society
by providing preferential treatmentrand affirmative- action. Such temporary special
measures aimed at accelerating de facto equality between men and women shall not
be considered discriminatory but shall in no way entail as a consequence the
maintenance of unequal or separate standards. These measures shall be discontinued
when the objectives of equality of opportunity and treatment have been achieved.84
RA 9710 further emphasizes the women’s rights to health, equal treatment
beforethe .law, equal access to education, ^scholarships and training,..andequal
rights in matters“relating to marriage and family relations. Furthermore, it grants
special leave benefits equivalent to two (2) months with full pay, to women
undergoing medical treatment for gynecological disorders, provided that she has
been employed with the same entity in the last six (6) months during thel2-
yearperiod.85
“Ibid.
“Ibid.
“Section 18, RA 9710.
INTKHNATIONAI# AND J'niIJI'J'iNK HUMAN Hid NTH LAW$
{\) A woman who gives birth HH a result of rape and other crimes
against chastity oven without a final conviction of the offender:
Provided, That the mother keeps and raise# the child;
(2) Parent left solo or alone with the responsibility of parenthood
due to death of spouse;
(3) Parent left solo or alone with the responsibility of parenthood
while the spouse is detained or is serving sentence for a criminal
conviction for at least one (1) year;
(4) Parent left solo or alone with the responsibility of parenthood
due to physical and/or mental incapacity of spouse as certified
by a public medical practitioner;
(5) Parent left solo or alone with the responsibility of parenthood
due to legal separation or de facto separation from spouse for at
least one (1) year, as long as he/she is entrusted with the custody
of the children;
(6) Parent left solo or alone with the responsibility of parenthood
due to declaration of nullity or annulment of marriage as decreed
by a court or by a church as long as he/she is entrusted with the
custody of the children;
(7) Parent left solo or alone with the responsibility of parenthood
due to abandonment of spouse for at least one (1) year;
(8) Unmarried mother/father who has preferred to keep and rear
her/his child/children instead of having others care for them or
give them up to a welfare institution;
(9) Any other person who solely provides parental care and support
to a child or children;
(10) Any family member who assumes the responsibility of head of
family as a result of the death, abandonment, disappearance or
prolonged absence of the parents or solo parent.”86
Section 3, RA 8972.
119
CHAPTER XI
THE PROTECTION OF WOMEN’S RIGHTS UNDER PHILIPPINE LAWS
T
OTriv tyl
It is estimated that one (1) out of ten (10) Filipinos resides or works
abroad. With the Filipino population officially placed at over 90 million as of
the latest census in 2012, this translates to more than nine (9) million Filipinos
working and/or living abroad. There is probably no country in the world where
there is no Filipino. Even in the small islands of the Caribbean, one can find
Filipino restaurants and money remittance centers. Truth to tell, the main
reason for the country's healthy dollar reserve is the remittances from the
Overseas Filipino Workers (OFWs). They are called the modern day heroes or
“bagong bayard ” Indeed, when one chooses to live in a strange land, outside
his comfort zone and away from his loved ones and contributes to the country's
economy, he deserves the country's gratitude.
In their situation, migrant workers are a class of people that need special
protection for their human rights. They are a class of people who are
temporarily and partially outside the mantle of coverage of their home
country's protection and have to rely on the protection of the country where
they are currently based. Even if they are not citizens of that country, they are
part of a labor force that runs and contributes to the economy of that country.
In many cases in the Middle East, Filipino workers are instrumental in the
building of cities and making homes comfortable. In countries such as the
United States, Filipino workers contribute to the health and well-being of the
nation. Thus, it is important that international laws be in place for this special
class of people.
120
CHAPTER XII 121
THE RIGHTS OF MIGRANT WORKERS
countries to ratify this covenant. It is sad to note though that most of the member
States are the sending countries of migrant workers. None of the big receiving
countries have ratified the treaty so far. The full implementation of the covenant is
thus hindered by the apparent one-sidedness of the parties.
Under the covenant, a “migrant worker” is a person who is to be engaged, is
engaged or has been engaged in a remunerated activity in a State of which he or she
is not a national.®8
There are different classes of migrant workers, to wit:
(a) The term “frontier worker” refers to a migrant worker who retains his
or her habitual residence in a neighbouring State to which he or she
normally returns everyday or at least once a week; ,
(b) The term “seasonal worker” refers to a migrant worker whose work
by its character is dependent on seasonal conditions and is performed
only during part of the year;
(c) The term “seafarer,” which includes a fisherman, refers to a migrant
worker employed on board a vessel registered in a State of which he
or she is not a national;
(d) The term “worker on an offshore installation” refers to a migrant
worker employed on an offshore installation that is under the
jurisdiction of a State of which he or she
H J| . is not a national; 4 ; i ; r
(e) The term “itinerant worker” refers to a migrant worker who, having
his or her habitual residence in one State, has to travel to another
State or States for short periods, owing to the nature of his or her
occupation;
;>
(f) The term “project-tied worker” refers to a migrant worker admitted to a
State of employment for a defined period to work solely on a specific
project being carried out in that State by his or her employer;
(g) The term “specified-employment worker” refers to a migrant worker: 88
88
Article 2, International Convention for the Protection of the Rights of Migrant Workers and
Members of their Families.
m
INTERNATIONAL AND l’llIUl'PINlC HUMAN MOUTH UW#
i\) Who hail boon aont by his or her employer for Q ivstricted and
defined period of lime to a State of employment to undertake u
specific uaaignmenUu:
duty;
lu) Who engages for a restricted and defined period of time in work that
requires professional, commercial, technical, or other highly
specialized skill; or
(iii) Who, upon the request of his or her employer in the State of
employment, engages for a restricted and defined period of time
in work whose nature is transitory or brief; and who is required to
depart from the State of employment either at the expiration of
his or her authorized period of stay, or earlier if he or she no
longer undertakes that specific assignment or duty or engages in
that work;
(h) The term “self-employed worker” refers to a migrant worker who is
engaged in a remunerated activity otherwise than under a contract of
employment and who earns his or her living through this activity
normally working alone or together with members of his or her family,
and to any other migrant worker recognized as self-employed by
applicable legislation of the State of employment or bilateral or
multilateral agreements.
The rights of migrant workers under ICPMW include: the right to life; right
against slavery and involuntary servitude; right against torture; freedom of thought,
conscience and religion; freedom of expression; right to information; right to
property; and right to privacy and security.
The Convention further provides that in the event that a migrant worker is
arrested, the representatives of his State must be informed without delay of such
fact, and he must be given the opportunity to communicate with them. Should his
incarceration pending trial be provided in the national laws of the country where he
committed the crime, he should be separated from convicts.
Failure to fulfilLa contractual obligation is not a valid ground
for imprisonment. Hence, failure to comply with the terms of the
CHAPTER XII 123
THE RIGHTS OF MIGRANT WORKERS
work contract may give rise to a civil obligation, but does not justify
imprisonment.
!
Travel documents, passports, and other documents authorizing the
stay of a migrant worker or his family in a State cannot be removed,
confiscated, or destroyed by his employer. Only public officials can do
so, when duly authorized under the law.
CHAPTER XIII
THE RIGHTS OF DISABLED PERSONS
124
CHAPTER XU1 125
THE RIGHTS OF DISABLED PERSONS
The*Philippines ratified this treaty on April 15, 2008, a couple of weeks before
it entered into force. The purpose of the Convention is, as stated in Article 1, “to
promote, protect and ensure the full and equal enjoyment of all human rights
and fundamental freedoms by all persons with disabilities, and to promote
respect for their inherent digrdty*
to education; .
f
and sports.
Under the covenant, States Parties are required to submit a
comprehensive report to the Committee on the Rights of Persons With
Disabilities through the Secretary-General of the United Nations on the
measures taken by the Party in order to comply with its obligations. The
Committee will consider the report and will make recommendations and
suggestions as may be appropriate under the circumstances to the State
Party. The Committee will also submit a report to the United Nations
General Assembly on its activities and the reports by and recommendations
to the States Parties.
The Optional Protocol to the Convention on the Rights of Persons
With Disabilities provides the procedure for communications from
individuals and groups who claim to be victims of violations by the
126
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LMtfj
State Party of its obligations under the convention. It entered into force on May
3, 2008. Under the Optional Protocol, a State Party may be investigated for such
violations, provided that domestic remedies be exhausted first. A State Party to
the main convention who has not ratified the Optional Protocol cannot be
brought under the jurisdiction of the Committee on the Convention on the
Rights of Persons With Disabilities.
The Philippines passed Republic Act 7277, otherwise known as the
Magna Carta of Disabled Persons, in compliance with its obligations under the
convention. This law was later amended by Republic Act 9442 and 10070.
Among the salient features of the law
90
Article. 2, No. 2, Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment and
Punishment.
9
'lbid.
92
Article 1, ibid.
128
CHAPTER XIV 129
THE RIGHT AGAINST TORTURE
or security concerns, but must be done in emergency situations for short durations
only.
When committed during an international armed conflict. torture can be
considered as a “grave breach,” which is prohibited under another international law,
the Geneva Convention of 1949. Even if a State has not ratified the CAT, it may still
be liable under the Geneva Convention under this circumstance.
If the torture is committed in a systematic or widespread manner, it could
amount to a “crime against humanity,” a crime punished under the Rome Statute
which created the International Criminal Court (ICC). Even if there is no armed
conflict, whether international or internal, this crime may be brought before the ICC.
Torture is also regarded as a jus cogens crime. States may proceed against
another State who commits torture, by invoking universal jurisdiction. In the case
of the Guantanamo prison torture, U.S. personalities like the former President
George Bush and the legal experts who wrote the "torture memos” have been
warned that they will be arrested and prosecuted when they enter certain
countries.
Article 3, ibid.
93
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
94
Article 4, ibid.
95
Section 15, RA 9745.
96
Section 22, ibid.
97
Section 16, ibid.
"Section 10, ibid.
"Section 13, ibid.
™lbid.
CHAPTER XV
THE RIGHT AGAINST ENFORCED
DISAPPEARANCES
During the Martial Law years, many persons who were opposing the
perceived excesses of the regime were reported to have been abducted and
killed. As an offshoot, the relatives of the victims filed a damages case
against former President Ferdinand Marcos in the United States, invoking the
Alien Tort Statute, and won hefty amounts as damages.
The Philippines was in the Top Ten list of countries where enforced
disappearances and extrajudicial killings are happening.
^Article 1, International Convention for the Protection of All Persons from Enforced Disappearance.
131
132 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
102
Article 5, International Convention for the Protection of All Persons from Enforced Disappearance.
103
Article 6, ibid.
104
/b/d.
105
Article 24, ibid.
1O6
(l5/l997/799/l002), May 25,1998, European Court of Human Rights.
CHAPTER XV 133
THE RIGHT AGAINST ENFORCED DISAPPEARANCES
1OT
Velasquez-Rodriguez vs. Honduras, July 27,1988, Inter-American Court of Human Rights.
134
INTERNATIONAL AND PHILIPPINE HITMAN RIGHTS LAWS
JLsJ
fi
d) Crimes of aggression.108
2. Ratione temporis — The crime must be committed AFTER the state
became a member of the ICC through ratification.109
3. Rations soli — The crime must be committed WITHIN the territory of
the member state.110
4. Rations personas — The crime must be committed by a citizen of the
member state.111
108
Article 5, Rome Statute of the International Criminal Court.
^Article 11, ibid.
^“Article 12, ibid.
m
lbid.
135
136
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
iii) The superior (ailed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to
submit the matter to the competent authorities for investigation and
prosecution.112
112
Article 28, Rome Statute of the International
Criminal
113 Court. January 27, 2000.
ICTR-96-l3-T,
CHAPTER XVII
INTERNATIONAL HUMANITARIAN LAW
XVII. A. DEFINITION
| International Humanitarian Law (IHL) is a collection of treaties and
acceptable practices which govern the conduct of war, the status, treatment, rights
and obligations of belligerent as well as. neutral and allied States, and of
institutions and individuals involved in the armed conflict, whether as military
personnel, health and relief providers, members of the media or as civilians.
I IHL is a set of rules “seeking to limit the suffering” 113 114 caused to humanity
by the conduct of war (jus in bello), and differ from the laws governing the
grounds for resorting to war, or jus ad bellum.
2. The laws for the protection of the victims of war, which were the
focus of the four (4) Geneva Conventions in 1949.
113
http://www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/jus-m-bello-jus-ad-bellum/
inqex.jsp [accessed on July 19,2013. - Ed.}.
139
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
1u
http://www.redcross.lv/en/conventions.htm[accessed on July 19, 2013.‘-Ed.].
CHAPTER XVII
INTERNATIONAL HUMANITARIAN LAW
f
3. Third Geneva Convention — Treatment of Prisoners War, or the
“Prisoners of War
4. Fourth Geneva Convention — Protection of Civilian Persons in Time of War
or the “Civilians Convention."
3 ) Opening of Hostilities;
4) Laws and Customs of War on Land; .
ft 5) Rights and Duties of Neutral Powers and Persons in
■ ^ Case of War on Land; ,
m 6) Status of Enemy Merchant Ships at the Outbreak of
■ I Hostilities; j
ft 7) Conversion of Merchant Ships into Warships;
ft 8) Laying of Automatic Submarine Contact Mines;
ft. 9) Bombardment by Naval Forces in Time of War;
142
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
ICRC carries out its missions during international armed conflicts, non-
intemational armed conflicts, and in violent situations not amounting to an armed
conflict. However, IHL only applies- when there is an armed conflict, whether it
be international or non- intemational. In violent situations not amounting to
armed conflict, IHL does not apply. Instead, it is Human Rights Law that apply.
An international armed conflict involves at least two (2) states. A non-
international armed conflict may involve the regular armed forces of a state
fighting against an armed group, or two or more armed groups fighting
against each other for a considerable period of time. Violent situations not
amounting to armed con flirt, are internal disturbances which disrupts public
order but are not in the nature of armed conflict, such as riots.
There are also conflicts arising from ethnic differences. This can be
problematic because any person belonging to an ethnic class may arm
himself and take part in the conflict on an off-and-on basis, thus the
distinction between a combatant and a civilian may be hard to determine. In
this type of conflict, IHL still apply.
116
lT-94-l, July 15,1999, International Criminal Tribunal of the Former 1
Yugoslavia.
117
IT-96-2l-A, February 20, 2001, id.
CHAPTER XVII 145
INTERNATIONAL HUMANITARIAN LAW
The International Committee of the Red Cross now uses three I (3) emblems:
the red cross, the red crescent, and the red crystal. 1 The first two (2) were in use for
decades. There also used to be the I red lion and sun aside from the red cross and red
crescent. Since I 1980 however, only the two (2) were used. The use of the red crystal
I came after the entry into force of the Third Additional Protocol to the I Geneva
Conventions in early 2007.
Originally, the emblem of the red cross on a white background I was adopted
as a neutral emblem. During the war between Russia I (Christian country) and
Turkey (Islamic country), the latter started I using ambulances with red crescent on a
white background. Iran I was using red lion and sun, so in 1929 both the red crescent
and red I lion and sun were adopted. Iran stopped using the red lion and sun I in
1980, and used the red crescent instead.
The red crystal was decided upon because the existing red cross I and red
crescent emblems have religious and other connotations I which some national
relief movements are not comfortable with, and I for some places these emblems
have no significance.
There are two (2) uses to the ICRC emblem:
1. Protective use — The emblem becomes a mantle of protection
conferred by the Geneva Convention upon persons, vehicles, and
property.
2. Indicative use — The emblem identifies the persons, vehicles, and
property related to ICRC.
International migration
International migration is a phenomenon that is happening across the
world, resulting in cultural and religious diversity which in turn sometimes
generate conflicts. Roughly ten percent (10%) of the Filipinos live and/or
work abroad, bringing in precious dollars that help boost the economic
health of the country.
OFWs work everywhere, including places where their safety are
compromised. They are in war-tom countries and even in war zones. For
this reason, they may be negatively affected and might need shelter, legal,
and medical assistance. In many instances, the Philippine government had
made diplomatic negotiations in behalf of Filipinos who are accused of
crimes and convicted abroad and had participated in the rescue of workers
trapped inside war-tom countries.
International migration may also involve a massive influx of
humanity arising from armed conflicts, especially involving States sharing
the same borders. The Council of the International Red Cross and Red
Crescent Movement recognize that issues affecting both the migrants and
the host State have to be addressed.
Urban violence
Violence is the world’s leading cause of preventable death. Factors such
as poverty coupled with greed, decline in or warped
CHAPTER XVII 147
INTERNATIONAL HUMANITARIAN LAW
rJ
j Emergent and recurrent diseases
Among the diseases considered to threaten humanity, most t arefHIVZAIDS,
tuberculosis, malaria, s and pandemic influenza., In, ■certain parts of the country,
dengue fever is also considered a threat. ; In view of this, there is a need to strengthen
the health systems of States, to share knowledge and best practices, and to provide
iaccessible medical assistance especially to vulnerable groups, such las orphaned
children and prisoners.
2011, and No. 8 in tho world, uccorcBig to Center for lUwoiivch on tho
Epidemiology oIBiMUHtora (CRKI)). It in OBtimated that P15 billion is
lost every year due to disasters, among which are earthquake#, floods,
storms, and landslides.
Resolution 4 of the Council of tho International Hod CTOHHand Red
Crescent Movemont provides the guidelines for the Domestie Facilitation and
Regulation of International Disaster Relief and Initial Recovery Assistance. The
guidelines are drawn from existing international instruments, including the
United Nations General Assembly resolutions 46/182 of 1991 and 57/150 of
2002, the Measures to Expedite International Relief of 1997 and the Hyogo
Framework for Action of 2005.
The Guidelines set forth the responsibilities of the affected State, those of
the assisting States, and those of all other States.
It is the primary responsibility of the affected State to ensure disaster risk
reduction, relief and assistance in the territory. It shall make a request for
international assistance when necessary, and may terminate one already extended.
It shall facilitate the visa requirements of foreign personnel involved in the relief
operations, and facilitate the entry of equipment without collecting customs
duties.
.The assisting States have the responsibility to provide competent and
adequately trained personnel, provide assistance in a manner that is sensitive to
cultural, social and religious customs and traditions, be responsive to the needs of
vulnerable groups in the affected State, and shall not use the relief operations as a
means to gather information of a political, economic or military nature that is
irrelevant to disaster relief or initial recovery assistance.118 119
All States should actively encourage members of the public interested in
contributing to international disaster relief or initial recovery assistance to make
financial donations or those types of relief goods requested by the affected
States.120
118
Core Responsibilities, Guidelines for the Domestic Facilitation and Regulation of International
Disaster Relief and Initial Recovery Assistance, International Federation of Red Cross and Red
Crescent Societies.
119
Additional Responsibilities of All States, ibid.