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    Chapter I GENERAL NATURE AND DEFINITION OF HUMAN RIGHTS “ALL PERSONS ARE BORN FREE AND EQUAL IN DIGNITY AND RIGHTS WITH- OUT ANY DISTINCTION AS TO RACE, COLOR, SEX, RELIGION, ORIGIN, AND SO- CIAL STATUS.” INTRODUCTORY All human beings upon birth automatically be- long to a society. They are born free, equal and with human dignity and rights. The first society he belongs to is his family, then at higher levels, to his neighbor- hood, his municipality, his country and the interna- tional community. The rights he is entitled to are en- joyed without any distinction as to race, color, sex, language, religion, origin and social status. History has shown that as man started to live ina society, his inherent rights began to be violated by his own fel- lowmen. The state authorities who are supposed to protect his rights are even his persecutors. The ancient 1 Scanned with CamScanner HUMAN RIGHTS sed to have 0 re SUPPOPT . ans who wel iA civilization le Greeks and Ron opment of Weste ‘hen men and level ry, . started the aeritution of slavery id be disposed attels and cov galized e held as chi f their masters. ver ; women W at the will 0 of in any manner iy became more developed, eas oes deprived of ian va mt gaye men, and suffered in i the portunity to live “oetrines of major religions ad le In spite of the d equal and free indi- ate at all men are cre ; une have suffered from oppression a : cient Confucianism to the Bahai’s proclaimed the brotherhood of men. Judaism believes: eee : hrateful to you, do not do to your fellowman. That is the entire Law.” Buddhism teaches: “Hurt not others in ways that you yourself would find it hurtful.” Confucianism ad- monishes: “If there is one principle which ought to be acted upon throughout one’s life, surely it is that of loving kindness. Do not do unto others what you would not have them done unto you.” Islam advocates: “No one of you is i; ae untite desires for his brother that which he de- to others just fr fpaches: “inevery thing, do you want them to do for you.” — ‘A Passage Ml assage from Tobit 4 15a, 16a, 18a, 19; Do to no one what You yourself dislike. G; ve to the hungry some of your bread, fi e of your clothing. Seek counsel from more men a Scanned with CamScanner GENERAL NATURE AND DEFINITION OF HUMAN Ricuts ; HUMAN RIGHTS DEFINED United Nations’ Definition Human rights are generally defined as those tights, which are inherent in our nature, and without which, we cannot live as human beings. Human rights and fundamental freedoms allow us to develop and use our human qualities, intelli- gence, talents and conscience, and to satisfy our spiritual and other needs. The dignity of man and human life is inviolable. From the dignity of man is derived the right of every person to free development of his personality. The denial of human rights and fundamental free- doms not only is an individual and personal tragedy, but also creates social and political unrest, sowing the seeds of violence and conflict within and between societies and nations. As the first sentence of the Universal Declaration of Human Rights states, “re- spect for human rights and human dignity is the foun- dation of freedom, justice and peace in the world. Scanned with CamScanner Human. RIGHTS ission on Human Rights’ Definition niss: reme, inherent and inalien. and self-development. It ig t kes man human, Philippine Comm Human rights aa papain orthese rights that ma Man's Responsibility in Human Society While freedom gives man the right ° eae decisions, he is responsible for Ae cae answer to his own conscience. TI cn ean i Id ii ividual is realized and uphe' his sther people in the form given to social life. Freedom in responsibility includes rights and oe freedom of the individual is demarcate : ny ee. dom of others and by a sense of responsibility. Basic Characteristics of Human Rights Human rights are generally characterized as in- herent, fundamental, inalienable, imprescriptible, indivis)- ble, universal and interdependent. Human rights are inherent because they are not granted by any person or authority. They do not need any event for their existence. They are distinguished from constitutional or legal tights, which are provided in state constitutions or legislative bodies. Some ex- amples of these rights are the right to life and the ight to dignity as human being. th Human tights are fundamental because without em the life and the dignity of man will be meaning- Scanned with CamScanner GENERAL NATURE AND DEFINITION OF HUMAN RicHts ome examples of e right to indivi person or freedom of ¢ less. less, ; human rights as fundamental dual liberty and security of a hought or religion. Human Tights are inalienable ightfull: Human Tights are imprescriptible because they cannot be lost even by a | Ong passage of time. Man does not lose his Tights even if he fails to use or assert them. Soi me examples are freedom of thought, con- science and religion. Man’s right to liberty is not lost even if he had been arbitrarily detained by the authorities. He does not lose his right to liberty even if he fails to claim it, On the other hand, a legal right granted by the state to file a case for violation of an agreement for an unrea- sonable time may be lost. Human rights are indivisible because they are not capable of being divided. They cannot be denied even when other rights have already been enjoyed. Examples of rights which are indivisible are the freedom of expression of belief or opinion. They in- clude the right to freedom of religion and worship Ordinary legal rights can be exercised independently from the exercise of other rights. Scanned with CamScanner HuMAN RIGHTS all human beings jr a 1 pl Tr prigin, status OF condi ion or plac tl e 1 sian are n, 1 human rights of an A he a " an rights of a European, 0 huma f i re universal to Human rights are unive respective of thei where they oe i fr the different from eee ! poor man from a rich ee rights are universal u ssentially the same. are essentially ‘ause said rights can be enforced without n ational becai igt forced without 1c aid bi border. nH Human rights are interdependent heath he is not be fillment or exercise of one cani ' realization of the other. The respect of ee eats necessarily includes the realization of man’s digni ty. An example is the right to life and existence asa Person. In addition, these cannot be realized without the right to work in order to Maintain a good standard of living. Ordinary legal tights can be exercised independ- ently from another, The exercise of the right to enter into contract can be exercised independently from the Tight to exercise Profession, d fr = @ human being But as he live: in coupe i Smet 7 Ha Say by the authorities of his bhasis 5 as gitimate SOciet is S ie i oienity id the right of u niet assure th : . itimat State g| i age ot a exist to 'vernmental Scanned with CamScanner functions, the dignit human being is duly GENERAL NATURE AND DEFINITION q OF HUMAN RIGHTS y that is the birthright of every safeguarded. Classification of Rights ing: 1, Rights can be classified according to the follow- According to source: * natural rights * constitutional rights * statutory rights According to recipient; * individual rights * collective rights According to aspect of life: * civil rights * political rights * economic rights * social rights * cultural rights According to struggle for recognition: * first generation rights * second generation rights * third generation rights Scanned with CamScanner HumAN RIGHTS gability: ble rights d rights According to dero » absolute or non-deroga’ + derogable or can-be-limite According to source: Natural Rights are God-given nights ono edged by everybody to be morally 800 rs mete unwritten but they prevail as norms of the ete Examples are the rights to life, dignity and se f- development. Constitutional rights are those rights which are conferred and protected by the Constitution and which cannot be modified or taken away by the law- making body. Statutory rights are those rights which are pro- vided by law promulgated by the law-makin, bod y Pp 8 ig ly and, consequently, may be abolished by the same body. [Constitutional rights and statutory rights are sometimes referred to as legal rights.] According to recipient: Individual right: i i india ‘ights are those rights being accorded to sso etive rights also called “people's rights” or poli peli are rights of the society, thes that yoyed only in company with others Exam- Scanned with CamScanner GENERAL NATURE AND DEFINITION OF HUMAN RIGHTS ples are right to peaceably assemble, right to peace, right to development, right to self-determination, and right to environment. According to aspect of life: Civil rights are those Tights which the law will en- force at the instance of private individuals for the purpose of securing to them the enjoyment of their means of happiness. They include the rights against involuntary servitude and imprisonment for non- payment of debt or a poll tax; the constitutional rights of the accused; the social and economic rights; liberty of abode and of changing the same. Freedom of speech, of expression, or of the press, the right to as- semble and petition, and the right to form associations are likewise civil rights. However, they partake of the nature of political rights when they are utilized as a means to participate in the government. Political rights are those rights which enable us to participate in running the affairs of the government either directly or indirectly. Examples are the right to vote, right to information on matters of public con- cern, and the right to initiative and referendum. Economic and social rights are those which the law confers upon the people to enable them to achieve social and economic development, thereby ensuring them their well-being, happiness and financial secu- rity. Examples are the right to property, education, and promotion of social justice. Scanned with CamScanner aches Nn Ric! HAN me at ensure rights that ensure the oe those 7 foster the presery,, ral rights iivielual and sca or nations a of the ine i dynamic evolu i diversity i - enrichinienl ho pri iple of eer expression? ve based Sal and intellectua ate of free ¢ Aeconding Co SCURETE and recognition. i rugel gn ne ja i hts istorical development, human rigl [ ie fa ae of a | Gen. phages and Third Generation an aici The FIRST GENERATION ae shcives ents covers civil and political ee theories, ily — sine 7 = which are associated with the English, American and French revolutions, It conceives of human rights more in negative ( free. doms from") than Positive (“rights to”) terms; it fy. The SECOND GENERATION OF HUMAN RICHTS covers €conomic, social and cultural Tights Which find thei origin Primarily in the Socialist tradi Hon and have been Various] i Y Promoted by revolu- Uonary Struggles and welf: oe uman ri an Movements, It con- “Hi a re in Ositi i Tight to. | oe POSitive terms, ie. equality, 'Y are fundamental Claims to social Scanned with CamScanner GENERAL NATURE AND DEFINITION OF HUMAN RIGHTS i ae eee OF HUMAN RIGHTS ive rights, ile dra i inking sa . s. While drawing upon, inter- Plualizing y ? e ‘alue demands associ- ated with the first and second si : : : Benerations of rights, it is best understood as a product, albeit one still in formation, of both the ri According to its derogability: Non-derogable or absolute rights are those that can- not be suspended nor taken away nor restricted/ limited even in extreme emergency and even if the government invokes national security. Among them are the right to be deprived of life arbitrarily, the right of freedom from torture, the right to be recognized as a person, and the right to freedom of thought or con- science. Hand in hand with human rights which indi- viduals must enjoy is the right of the state to national security. Thus, some individual rights are not absolute or are derogable. Derogable or relative rights may be suspended or restricted or limited depending on the circumstances which call for the preservation of social life. Example, the right to freely move may be limited through = imposition of curfews. However, the imposition : restrictions on certain individual rights must satisly Scanned with CamScanner HuMAN RIGHTS 12 lid, namely: (1) it ig require! de known to every three require whic : rovided for by law f emergency which neces. oe (2) there is a state of Bene public good citizen, rgent preservation 0 3) sere : sitates the a public moral; and 7 ae a ae nat strictly necessary to achie Pur. exceet pose. Categories of Human Rights Human rights have been categorized in several] ways, namely: as Fundamental Freedom in Political Rights The Bill of Rights in the Philippine Constitution contains these fundamental freedoms of the individ- ual, such as the freedom of conscience and religion: freedom of thought, belief, opinion and expression; freedom of the press and communication; freedom of eration, on of peaceful assembly. They also privacy, reputation, and human dignity. (Art. IIL, Philippine Constitution: ivi ae wishin) p nstitution; Art. 19, Civil as Democratic Rights Scanned with CamScanner GENERAL NATURE AND DEFINITION 13 OF HUMAN RIGHTS Ill, Philippine Constitution; A: ; Arts. 3 Political Rights.) rts. 2, 4 and 5, Civil and as Mobility Rights The third category is the so-called mobility right that is the right to travel and to return to one’s coun- try, and the freedom of movement within the country. These rights are national as well as international in character. (Art. 2, Civil and Political Rights; Art I, Sec. 6, Philippine Constitution.) as Right to Life, Liberty and Security of the Person The fourth category is the right to life, liberty and security of a person. These rights represent the core of fundamental rights which relate to the right to physi- cal and personal integrity, consistent with human dignity. They include the right to protection against political and other extrajudicial killings, the disap- pearances of persons, and torture and other cruel, inhuman or degrading treatment or punishment. (Art. Ill, Sec. 1, Philippine Constitution; Art. 6, Civil and Political Rights.) as Legal Rights Human rights are also categorized as legal rights. Legal rights include the freedom from arbitrary arrest and detention and the protection against unreason- able search and seizure, right to counsel, right to fair and public trial, presumption of innocence, and 5 right against self-incrimination. These rights const- Scanned with CamScanner HUMAN RIGHTS i d by persons ac. s that can be inven Political Rights; 9, and nae Rule 113. Rules of ‘1 ; tute due ae used. (Arts. 8 Art Ill, Philippine Consti Court, R.A. 8493.) Rights of Equality re e right of equality or the Everyone is equal before rotection or the equal The sixth category is th right against discrimination. the law and is entitled to equal p tion against dis. benefit of law. It includes the protect! nN crimination on the grounds of sex, ae ae moet ' nic origin, age, marital status and poll rca Stn al condition. (Art. III, Sec. 1, Philippine on itution; Art. 32, Civil Code; Arts. 2 and 4, Convention on Ra- cial Discrimination.) as Economic, Social and Cultural Rights Human rights are categorized also as economic, so- cial and cultural rights. They are considered more of standards to be observed by the state. These rights include the right to social security, social insurance, protection and assistance to the family, the right to an adequate standard of living, adequate food clothing, and housing, and the ri ht i health. They also include right os a en the right to be part of the ne Tight to education and the country. (Coy MTT. (Covenant : tural Rights, Art, XII Ph foment, Social and Cub 1161 and R.A, 8282) hilippine Constitution; RA. Scanned with CamScanner GENERAL NATURE AND DEFINITION 15 OF HUMAN RIGHTS as Workers’ Rights The eighth cate 20r chops’ ri : include the He ‘gory are the workers rights, which | 9 association, the ri; i unions, to bargain collectively, the nee forced labor, the prohibition of employment of chil- dren, and the guarantee of minimum wages and other support. (Art. XIII, Sec, 3, Philippine Constitution, Labor Code of the Philippines, Convention on Eco- nomic, Social and Cultural Rights.) as Aboriginal Rights The ninth category is the so-called aboriginal rights. These rights are associated with the rights of indigenous cultural tribes or communities. (Art. XIV, Sec. 17, Philippine Constitution, R.A. Nos. 8731, 8971.) as Reproductive Rights The tenth category is the reproductive rights. These rights include the right to found a family and bear children, to gender sensitivity and the biomedical technology, and to family planning: while Article XV, Section 3 of the Philippine Constitution guarantees the right to found a family, it prohibits the right to abortion in view of Art. II, Sec. 12 which guarantees the protection of the life of the unborn. as Protective Rights of Persons in Armed Conflicts The eleventh category is the protective rights of a person in an armed conflict. These rights are provided in Scanned with CamScanner HUMAN RIGHTS international humanitarian law for the Protectig, ec women and cond Protecel ae in. ternal armed conflicts. (Second rotoco : ; Monat ty the Geneva Convention of 1949. Rel ‘ations to the Pro, secution of victims of non-international armed con, flicts; Convention on the Rights of the Child; Ra 6731.) as Right of Self-determination The twelfth category is the right of Self- deter. mination. This tight was asserted by colonial Peoples in their struggle for independence. This Means the tight of people to be free from colonial rule and de. cide their own destiny. (Art, Il, Sec. 7, Philippine Con. Stitution; Art, I, Economic, Social and Cultural Rights) as Minority Croup Rights The thirteenth category is the minority &toup Tights. These Tights include the Protection of ethnic, linguistic and religious minorities, While the Univer. enslavement or Scanned with CamScanner GENERAL NATURE AND DEFINITION 17 OF HUMAN RIGHTS servitude, protection from imprisonment for debt, freedom from retroactive penal laws, the right to recognition as a person before the law, and freedom of thought, conscience and religion. The Second, Third and Fourth Generation Rights The last category is the so-called second, third and fourth generation rights. The second generation rights are the Economic, Social and Cultural Rights. The third and fourth generation rights were developed through the peace-keeping efforts and through soli- darity of the international community. They include the control of manufacture and use of weapons of mass destruction like atomic bombs, chemical or bio- logical warfare, the protection of the environment and the right to development. They are better known as collective rather than individual rights. The Supreme Court of the Philippines sustained the cease and desist order of the Laguna Lake Devel- opment Authority prohibiting Caloocan City from dumping its daily garbage in a place that will cause pollution and harmful effects on the Laguna Lake, a source of food and water of the people in the area. The Supreme Court cited the Universal Declaration of Human Rights and the Alma Conference Declaration of 1978 which recognize health as a fundamental hu- man rights. (Laguna Lake Development Authority vs. Court of Appeals, 231 SCRA 292 [1994].) Scanned with CamScanner TS Human RIGH pIscUSSION QuEsTIONS FO ders What do you 4 a . rc ; What are the sow! be) human rights? itled to entitled na jon of huma ights Orig, tand by human rights human rights? 1 iz 3, Whoare 4, How did the violat nate? Who were the first violators of human righty , i : 7 Human rights are characterized as inheren, . Hu | Why? Give examples. 7. Human rights are fundamental. Why? Cig examples. 8. Human rights are inalienable. Why? Give ' amples. 9. Human rights are imprescriptible. Why? Give examples. 10. Human rights are indivisible. Why? Give amples, . 11. Human rights are uni f 4 ig universal. Why? Give ex. 12. Human righ ; t i Give examples, Bis are interdependent, Why? 13, What do : You mea of human rights? Give exa a the second generation 8. i. Wh human nica. ut ae the thi ‘an rights? Give example ae fourth generation of €ach, Scanned with CamScanner Chapter IT HISTORY, THEORIES OF SOURCES AND DEVELOPMENT OF HUMAN RIGHTS “HUMAN RIGHTS ARE AS OLD AS HUMAN SOCIETY. THEY ARE RIGHTS MEN ASSERTED AT THE BEGINNING AGAINST INJUSTICES OF TYRANNICAL RULERS OF ANCIENT NATIONS AND THE ROYAL AUTOCRATIC KINGS AND PRINCES OF THE MEDIEVAL ERA—THE NINE THEO- RIES OF SOURCES OF HUMAN RIGHTS.” Human rights are as old as human society itself. Originally known as “Rights of Man,” they are as- serted by the citizens against tyrannical governments. They arose from the struggle of man against injustices of despotic rulers. From the tyrannical rulers of the ancient Greece to the royal autocracy of kings and princes of the Middle Ages men began to resist injus- tices they have long suffered. Men revolted against the concept of the “Divine Right of Kings.” Socrates, considered the father of philosophy, was a victim of 19 Scanned with CamScanner HuMAN RIGHTS 20 A is honest and energe,, human rights ee brought him to digg stand upon political ate and was accused of oo vor with the state erie by teaching things no, in rupting the youth of ular mythology. He was con, paar “0 drink the deadly hemlock jn the lemne year 399 B.C. ; ; Aristotle the foremost Greek philosopher in Nat favor slave ownership but history ion. The ay thay slavery became a legalized institutio ; bes cin Romans who were known as law-givers, mu ateg excellent legal codes, but legalized the —— of slaves in the Roman Law. It was only in the ear ly 20th century when slavery was internationally prohibited, In the Middle Ages, the great English document, Magna Carta, was delivered by King John on June 9, 1215. Regarded as the first English Constitution, the document guaranteed personal liberties and civil rights. The revolutionaries of England determined to Prevent arbitrary royal rule laid down the Bill of Rights of 1689 such as freedom from cruel and un- usual punishment and excessive fines. The Americans revolting against the English King declared their own Bill of Rights which they adopted in 1776, asserting that all men are by nature fully free sah independent, and have certain inherent rights oS enjoyment of life and liberty, of acquiring and Possessing See of properties, and obtaining Scanned with CamScanner ai DF HUMAN RicHts happiness, They asserted fr press, to speedy and public tri and the freedom to exercise re! Likewise, the French revolutionaries in 1789, re- vo ting against their tyrannical king, proclaimed the Declaration of the Rights of Man” previously denied them by the rulers, They declared that all men are born free and equal and affirmed the inalienable rights of man. ‘eedom of speech and ial by an impartial jury, ligion. Eventually, most democratic countries adopted in their respective Constitutions, laws and statutes, the principles of the constitutional guarantees in the Bill of Rights. THEORIES OF SOURCES OF RIGHTS Several theories of the source or origin of human rights have been advanced, namely: (1) religious or the theological approach, (2) the natural law theory, (3) the positivist theory, (4) the theory of Marxism, (5) the socio- logical approach, (6) the utilitarian theory, (7) theories of justice, and (8) the theory based on equality and respect of human dignity. Religious or Theological Approach Central to the doctrines of all religions is the con- cept of the dignity of man as a consequence of human rights. This is the doctrine of a Supreme Being, the creator, the Father of all humanity. If we accept the story of the Old Testament, Adam, the first man was ~ Scanned with CamScanner HuMAN RIGHTS 22 : is means thal the in the image of God, this bien alee; pale a ives human beings 4 ° 1 creatic ee a universal common creation a en's worth. The belief of : asequently Univer. ee rights, Since Highs a an : Divine source, they are ee ee be denied by mortal beings (man). d of men and approach means also. ee ealeey, ifercfore) its ity in the eyes of God. fe oa nite ahs theory stemming eG law higher than the state and whose source is a preme Being. They are not concessions granted by human institutions or states, or any international or- ganization as they are God-given rights. The criticism of the theological approach is that some religions impose so many restrictions on indj- vidual freedom. Some religions even tolerate slavery, discrimination against women and imposition of death penalty. The theological approach is valid as long as men believe that God created them. ity and cor It is the interpretation of man loving his neighbor. The concept of brotherhood of men means respecting the rights of man, This also illustrat . law th ‘ a. Stoies ang elaborated by” which originated from the "ek philosophers Plato Scanned with CamScanner History, T HEORIES OF SOURCES AND Dt ) 23 VELOPMENT OF HUMAN. RIGHTS and Aristotle and later by ancient Roman law jurists perceives that the conduct of men must always con- form to the law of nature, Philosophers, in their search for the truth, must be in accordance with na- ture which is eternal, Natural law embodies those elementary Principles of justice which were right rea- son, Le. in accordance with nature, unalterable and eternal. Thomas Aquinas, foremost among medieval phi- losophers, considered natural law as law of right rea- son in accordance with the law of God, commonly known as the scholastic natural law, (Aquinas, Summa Theologica Part II, Rommen, Natural Law, 1948.) Natu- ral law conferred rights upon individuals viewed as part of the law of God. The modern theory of natural law stressed by Hugo Grotius, considered the father of International Law, detached natural law from re- ligion but laid the basis of several forms of natural rights. These natural characteristics of human beings are the social impulse to live peacefully and in har- mony with others whatever conformed to the nature of men as natural human beings was right and just. Whatever is disturbing to social harmony is wrong and unjust (Grotius, De Jure Belli Ac Pacis, Lubri Tres, Kalseng Trans [1925]). Thus, the idea of human rights appeals to everyone whatever culture or religion one belongs to. John Locke envisioned human beings in a state of nature. In that state, they enjoyed life, liberty and property which are deemed natural rights. Scanned with CamScanner Human RIGHTS a ame the basis of the jaw be Lee rulers. The of natura t ainst oppressive The theory oa ' al er found its way in the fist human rights ‘document known as the Pee eon ne fand in 1215, the English Bill of Rights eM A American Declaration of Independence i : ‘. Natu. ral law theory has served as the norms ors andards of state-enacted positive law. When the Nazi army gen. Nuremberg Tribunal for erals were prosecuted in the 7 : various offenses such as mass killing of children, V women and non-combatants and genocide, they put up a defense of nullum crimen sine lege that is, “there js no crime unless there is a pre-existing law condemning the act as crime,” the judges of the tribunal resorted to natural law. The crimes committed were offenses against humanity and there is no need of a law pe- nalizing the acts. The main characteristic of natural law is th, natural law leaves vague what is Part of the |. sf nations and, therefore, is inalienable, aw of nature Historical Theo, ry Scanned with CamScanner History, THEORIES OF SOURCES AND 25 DEVELOPMENT OF HUMAN RIGHTS gradual, spontaneous and evolution; out any arbitrary will of any author: are customs and tradition: of our Life, Legislation [1831].) ary process with- ity. The examples Ss. (Savigny, On the Vocation and Jurisprudence, Harvard The Functional or Sociological Approach Under the functional or sociological theory, hu- man rights exist as a means of social control. Also nown as the sociological approach, human rights exist to serve the social interests of society. The socio- ogical approach lays emphasis of obtaining a just equilibrium of multifarious interests among prevail- ing moral sentiments and the social and economic conditions of the time and place. It is the pragmatic principle, William James advocated that the essence of aw is simply to satisfy the needs of the people. This approach was developed in the early twentieth cen- tury when there were demands for a variety of wants occasioned by the development of a society as help for the unemployed, the handicapped, the underprivi- leged, minorities and other disadvantaged groups. The approach is now to focus on rights in terms of people’s wants and concern. (R. Pound, Jurisprudence 1959].) The Positivist Theory The positivist theory or what is known as legal positivism states that all rights and authority come Scanned with CamScanner 26 “cials have promulgate, ig what it is co,” : nly law } OM, ~ this theory, the © ce of human rj Under ie the sovereign The sour aia hts mandec d only in the enactmen! : Wit is to be foun law and natural rights can I ons attached. Natura od only if they can be enforced by a state. A right is enjoyed only if it is recognized and protecteg ig by legislation promulgated by the state. The ae of rights can be found only in the promulgate law ang enforced by the state. It is the will of the sovereign Jeremy Bentham and John Austin, foremost POSitivists who had been advocates of law reform, stressed the state's legal processes to bear upon the protection of human rights. from the state and The promotion and protection of human rights becomes easier and more effective by resolving Cific concrete violations of tights. A positivist ed em offers flexibility to meet changi i i under human control, ssucareeneeeeed t may by ved no i Matt : anti- T obeyed Pp ee C laws of oe immoral Internati I ive ositiy; e Nazis were Ww Vis Premacy of the iy ao fi gtip can undermine Nal sovere; asis of ereignt Of the su- 'y. Scanned with CamScanner HISTORY, THEORIES OF SOURCES AND 27 DEVELOPMENT OF HUMAN RIGHTS. The Marxist Theory This theory emphasizes the interest of society over an individual man’s interest. Individual freedom is recognized only after the interest of society is ser- ved. It is concerned with economic and social rights over civil or political rights of community. In a capi- talistic society where few men control the means of production, an individual's needs and rights are never satisfied. The economic and social rights in many international instruments of human rights are claimed to be due to the Marxist theory of equitable distribution of wealth and economic resources. Marx regarded the natural law approach as very idealistic. He saw nothing natural or inalienable about human rights. Such concepts of law, justice, morality, democ- racy, freedoms as historical categories whose content is determined by the natural conditions of the life of the people. The inclusion of economic and social rights among the international instruments are attrib- uted to the theory of communist states. (Berlin, Two Concepts of Liberty [1958].) The Communist system of rights has been re- ferred to as “parental” with the political body pro- viding the guidance in value choice. But the true choice is the government set by the state. Theory Based on Equality and Respect Equality with respect to basic liberty means the recognition of individual rights in the enjoyment of Scanned with CamScanner HumaN RIGHTS 28 such as freedom of speech, rej, fair trial and access to courts. Gove 8 Il their citizens equally. For a ent must intervene in order Is to the basic freedoms ion, assembly, ments must treat a purpose the governm advance general welfare. Another type of equality involves opportunjt; in the availment of public services and equal t nites Eat. ment before the law. Certain specific liberties such as freed 0 Rape ‘reeclom of worship, right to join a 2 against a ee require special protectin called prefer: a im terference. They are th ea aie Te liberties, where usually the a —— eon ctions. (R. Dworkin, Taki ete , [1972], p. 22.) » *aking Rights The Theory Based on Justice Cial inte ject to politi. tests, Rawls © Political p, ini : Theory of Justi argaining ort ce, p. 28 O SO- Scanned 7 CamScanner History, THe ‘ORIES OF SOURCES AND DEVELopMe} 29 NTOF HUMAN RicHts Each person hi ‘aS equal rights to the of liberties. There : whole system Is no justice in social primary goods such as op) portunity, income and wealth and self-respect are to b e distributed equally. Theory Based on Dignity of Man Professors McDougal and Laswell follow the so- led value-oriented approach based on protection of man dignity. This theory proceeds on the premise that human rights means sharing values of all identi- fied policies upon which human tights depend on (McDougal, Laswell and Chess, Human Rights and World Public Order [1980]). The most important values are respect, power, knowledge, health and security. There is a great disparity between the common de- mands of the people for human dignity values and their achievement. The ultimate goal of this theory is a world community where there is democratic sharing and distribution of values. All available resources are utilized to the maximum and the protection of human dignity is recognized. This theory, in fact, is better referred to as policy science approach. Scanned with CamScanner HuMAN RIGHTS 30 Theory ainly based on the ,) . jan theory, ™ nai seoke “ch jurist Jeremy lish jun ms of tendencigg ,° 0 The Utilitaria? The utilitar Eng! : i ights in ter! tion of rig! common good. Re fied ends such as ae hat every human decision was Mot [culation of pleasure and pain, The goal is to promote the greatest happiness ot ihe Brea. est number. Governments are to be judg’ : bY ref. erence to individual rights first in terms ©} their ten, dencies to promote the greatest happiness to the greatest number. Under this doctrine, everyone is counted equally. It does not mean, however, that eye, ryone is treated equally. Utilitarianism is the Principle that requires governments to maximize the total Net sum of citizens. This is in contrast to the natural tight theory which is an individualizing principle that as. Signs specific basic interests of each individual Person 0. Bentham, Theory of Legislation, p. 52 [1931]). : Another type of Utilitarian Theory was advocated by Rudolf Ikering, which emphasizes that an individ. losophy of define the net promote speci tham believes 1 vated by some ca takes j . An : akes into Consideration co " 800d only when it interests of th ; € society Scanned with CamScanner History, THEORIES OF SOURCES AND 31 DEVELOPMENT OF HUMAN RIGHTS and tends to augment the hapr piness of the entire community. Human Rights as an International Concern The struggle for the respect of human rights was originally a domestic or national issue. The citizens of the state asserted their unending rights against their tyrannical rulers. The atrocities committed on masses of people during World War II have convinced inter- national jurists that the protection of human rights should be an international concern. It was for this rea- son that one of the objectives of the United Nations was “the reaffirmation in fundamental human person and dignity and worth of the human person.” On De- cember 10, 1948, the basic norms and standards of the human rights were proclaimed through the Universal Declaration of Human Rights. As a mere declaration, its provisions were not legally binding on States, hence, in 1966 the International Covenant on Civil and Political Rights, amplifying the human rights princi- ples in the Universal Declaration was adopted. The human rights concept was further broadened with the adoption of the International Covenant on Economic, Social and Cultural Rights in the same year. The hu- man rights provisions of the United Nations Charter, the Universal Declaration of Human Rights and these two Covenants are now known as the International Bill of Human Rights. The two Covenants are legally binding on the States that signed and ratified them. Scanned with CamScanner HUMAN RIGHTS ernational concey, spnational Law (Luard, “Tp ver Human Rights”; The ¢ Human Rights: Human Rights and Political Issues ed. by T ss, 1989). Respect fo, individuals withou nship. Violation of 32 sits became an int ject of Inte Human Rig pnal Concern 0 and is now @ sub) in of Internatie J Protection 0! af Law. Legal Meron, Oxford University Pre human rights mainly concert nationality or citize nses without borders. Orig! International in Internation: distinction as to human rights are offe Origin of Human Rights in the Philippines Jose Rizal, the national hero of the Philippi | ippin was the first and foremost victim of human Tighe ; violation in the country. For his written works d ° : rouncing the abuses of the Spanish authorities and ‘jars committed on the Filipin . fo Os, Bicarily arrested and tried by his own eas ae was executed at Bagumbaya: eben oe (aan ivan on December 30. Since 1896 , the educat ili aa ed Filipi Fit - 7 a basic constitutional gus were already le Americ; ee Malolos Consti ‘an and English Bi ae onstituti lish Bill of Ri ution adopted on June 2 ets: The , 1899, estab- 14 and 1 5) t 2 pon 4 he Philippines “sumption, af » President McKinl Sovereignty over ®Y direct ed the Scanned with CamScanner History, THEORIES oF Sources AND 33 Devi = ELOPMENT OF HUMAN RIGHTS application of the American Bill of Rights through his Instruction to the Phili Said principles were reit 1902, the Philippine A known as the Jones L, pendence Act of 19 McDuffee Law. The adopted in 1935, and re Constitution cont rights are now ppine Commission in 1901. erated in the Philippine Bill of utonomy Act 1916, otherwise aw, and the Philippine Inde- 34, known as the Tydings- first Philippine Constitution iterated in the 1973 Philippine ained the Bill of Rights. The said known as civil and political rights. The Filipinos were temporarily deprived of the enjoyment of the civil and political rights during the military rule of Japan from 1942 to 1944 but were res- tored immediately in 1945. The Filipinos were again subjected to violation of human rights during the authoritarian rule of Presi- dent Ferdinand E. Marcos. His administration was terminated during the February 1986 revolution. A new constitution was adopted in 1986 and took effect in 1987. This new constitution categorically states that the State values the dignity of every human person and guarantees full respect for human rights (Art. III (11). A signatory of 26 International Human Rights In- struments, the Philippines has the biggest number of ratification of human rights instruments among the Asian states. Signed and ratified or acceded to by the Philippines are the International Covenant of Eco- nomic, Social and Cultural Rights (7 June 1974), Inter- Scanned with CamScanner HuMAN RIGHTS 34 ae Political Rights (23 Civil and ional C | Internationa! OVe, Optional Protoco August 19 ch ane Pla Rights, 22 Av "9 nel Convention aes September 1979 : iscriminati + , Forms of Racial Discrit the Suppression ap, ‘ tion on . International en of Apartheid (27 July 1987) Punishment o! Apartheid (27 July International Convention against ace ¥ 1987), International Convention on iscrimination Against Women (5 Ay. F of Discrimination iM ; ast 981) Convention on the Political Rights op Convention on the Rights of he Child C1 August 1900), Slavery Con vention of 1926 (12 July 1955), Protocol Amending the Slavery Convention (17 November 1964), Supple. mentary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices (17 No- vember 1965), Convention on the Suppression of the Trafficking of Persons and the Exploitation of Others (19 September 1952), convention on Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (18 June 1986), the Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriage (21 January 1965), Interna- “onal Convention on the Protection of All Migrant national Covenant on Refugees 22 July 1981) no Relating to the Status of uly 1981), Convention on the Prevention Scanned with CamScanner IES OF SOURCES AND HUMAN RicHts DEVELOPMENT of and the Punishment of the Crime of Genocide 7 July 950), Convention on Non-applicability of Statutory Limitation on War Crimes and Crimes Against Hu- manity (15 May 1973), Protocol Additional to the Ge- neva Convention of 12 August 1949, Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol Il) (11 July 1987). The latest human trument is the establishment of Court to try violations on war crimes and crimes against humanity, Although it was Opened for signature since 1966, the International Covenant on Civil and Political Rights was acceded to by the Philippines only in 1986, when democracy was restored after the 1986 “Edsa Revolution.” The analysis and implementation of these inter- national human rights instruments will be discussed in the following chapters. Narrow Concept of Human Rights in the Philippines Human rights has been originally understood as civil and political rights which men asserted against their tyrannical rulers. The Magna Carta of 1215, the Bill of Rights of the American revolutionists referred to the guarantees of the enjoyment of individual lib- erties such as freedom from arbitrary arrest and de- tention, freedom of speech and of the press, and free- dom of religion. As society has developed and pro- gressed, and with the increase of multifarious activi- Scanned with CamScanner HUMAN RIGHTS ic developm, : f economic ent, ly in the field oO Shave been broadener human activi; the concept OF © 1 aspects of ie and covers P! ally a as free and fully developeg Quite unfortunate, however, the 1985 1 has mentioned only civil an, ; _ XIII, Sec. 18 (1) of the Con, political Dees = Human Rights is i itution, the Con ‘ : sowered to aig “all forms of human rights viola. i involving civil and political rights. ’ Apparently the delegates who drafted the 1986 Constitution were Not fully aware of the broad concepts of human rights ag envisioned in the International Bill of Rights consist. ing of the International Covenant of Civil and Politica] Rights and International Covenant in Economic, So. cial and Cultural Rights and the various internationa| instruments on human rights adopted by the United Nations and other international organizations, The delegates during the debate emphasized that at the moment the Constitution is limited only to civil and Political rights (Records of the Constitutional Commis. sion, Vol. 2, pp. 722-723, 738-739) The Philippine Supre me + the opinion that the funct Court was i ings. human beings.

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