Human rights law
Introduction to Human Rights
Human rights
Those liberties, immunities, and benefits, which all
human beings should be able to claim “as of right”
of the society in which they live.
The Preamble of the Universal Declaration
of Human Rights (UDHR) mentions the inherent
dignity and of the equal and inalienable rights
of all members of the human family. Human
rights are not granted by the State, nor stemmed
from citizenship in a country. Human rights are
rights which necessarily spring from being a
member of the human species.
Human rights law
Human rights law is a broad field, and includes not
only the relationship between men and
government, or the civil and political rights of the
people, but extends as well to their economic,
social and cultural rights, to the right to
development and a peaceful and clean
environment where they could develop in all facets
as human beings.
It covers education, employment, health,
family, and marriage, among many others. More
importantly, it covers every individual and does not
operate to protect exclusively only a particular
group of people. Both private individuals and public
officers have the duty to respect each other’s rights.
Attributes of human rights
1. Universal – Human rights apply to all humans,
regardless of race, culture, age, sex, or creed.
2. Inherent – All human beings are born with
these rights; these are not conferred by any
authority.
3. Equal – Every human being has the same set
of rights as any other.
4. Inalienable – Human rights cannot be taken
from or given away by any human. While its
exercise may be regulated or restricted by law,
its substance cannot be taken away.
Three generations of human rights:
1. First generation – political and civil liberties
found in the International Covenant on Civil and
Political Rights (ICCPR).
2. Second generation – economic, social, and
cultural rights found in the International
Convention on Economic, Social, and Cultural
Rights (ICESCR).
3. Third generation – solidarity rights
International International human
humanitarian law (IHL) rights law (IHRL)
A set of rules which
seek, for humanitarian
reasons, to limit the
effects of armed conflict. The law which deals
with the protection of
It protects persons who individuals and groups
are not or are no longer against violations by
participating in the governments of their
hostilities and restrict internationally
the means and methods guaranteed rights, and
of warfare. with the promotion of
these rights.
It is also known as the
law of war or the law of
armed conflict.
State Responsibility
The State as guarantor of human rights
 The State has a duty to guarantee the
continued enjoyment by the people of their
rights.
 As guarantor of human rights, the State may be
held accountable when people are deprived of
their rights by its action or inaction.
 The State may regulate and limit certain
activities of its people, and Congress may pass
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 Human rights law
laws to uphold and promote human rights
through police power.
Rule of Law
 Under the Rule of Law, the law is preeminent
and can serve as a check against of power.
Rule by Law
 Under Rule by Law, the law serves as a mere
tool for a government that suppresses in a
legalistic fashion.
Violations by “State actors”
 States are abstract entities, they do not act on
their own.
 States act through their agents or “state actors.”
When a State actor violates the human rights of
an individual, it is deemed a violation by the
State itself.
 The Articles on State Responsibility provides
the basis for State accountability when a public
officer violates the rights of an individual.
Government officers immune from suit:
1. President – immune from suit only during his
tenure (Estrada v. Desierto).
2. Vice President
3. Supreme Court Justices
4. Members of the Constitutional
Commissions
a) Commission on Audit (3)
b) Civil Service Commission (3)
c) Commission on Elections (7)
5. Senate and House of Representatives
(limited; parliamentary immunity during privilege
speeches)
6. Diplomats, consuls, vice-consuls (diplomatic
immunity)
Violations by private individuals
 Individuals or groups can commit human rights
violations and can be held liable for such.
 Individual responsibility for human rights
violations committed by private persons are
treated and punished under the criminal law
system.
 Thus, a person who deprives another of his life,
liberty, or property may be charged under penal
laws for homicide, kidnapping, or robbery, for
instance. For that to happen, the act or
omission must be defined and penalized under
an existing domestic law.
 In order that human rights violations committed
by individuals who are not “State actors” can be
properly dealt with, it is necessary that:
1. The State, through its lawmaking body,
must enact the appropriate laws to
criminalize the human rights violations; and
2. The State, through its judiciary, must
provide adequate judicial remedies.
 States become liable for HRV committed by
private individuals when they fail to pass laws to
protect its people from HRV and to provide for
adequate judicial remedy.
State liability for human rights violations
committed by non-State actors
 State liability may attach for human rights
violations committed by “non-State actors” if the
State failed to pass laws to protect its people
from these violations, and to provide for
adequate judicial remedy.
 The State’s role as guarantor of human rights
enjoyment and protection carries with it the
obligation to ensure that State actors and non-
State actors do not violate them.
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Velasquez Rodriguez v. Honduras – a human
rights violation committed by a private individual is
imputable to the State (principle of complicity).
International State Responsibility
 The traditional principle in international law is
that individuals are not directly bound by it, for
individuals are not subjects of international law.
 By ratifying a treaty, the State agrees to be
bound by international law and thereupon
incurs responsibility.
International State responsibility for
internationally wrongful acts
 Art. 1, Articles on Responsibility of States
for Internationally Wrongful Acts: “Every
internationally wrongful act of a State entails the
international responsibility of that State.”
 Art. 2: Elements of an internationally wrongful
act of the State:
a) The act or omission is attributable to the
State under international law;
b) The conduct constitutes a breach of an
international obligation of the State.
 The State responsibility extends to acts
committed by instrumentalities of the State.
Persons and entities which have the status and
organs in the internal law of the State are
included in the term “State organs.”
 Art. 4: “The conduct of any State organ shall be
considered an act of that State under
international law, whether the organ exercises
legislative, executive, judicial or any other
functions, whatever position it holds in the
organization of the State, and whatever its
character of the central organ of the
government or of a territorial unit of the State.”
 States also incur liability if they fail to prevent
private individuals or groups from violating the
human rights of others.
Derivative State Responsibility
 Under International Law, a State may be held
liable for a human rights violation even if it did
not directly commit the act constituting the
violating, provided that it assisted in the
commission of the act or allowed it to happen,
similar to a conspirator, accomplice, or
accessory in our criminal law.
 Arts. 16 and 17: Derivative responsibility is
present where:
a) The State aids and assists in the
commission by another of the
internationally wrongful act, and;
b) The State exercises direction and
control over the commission of the act.
 The Principle of State Responsibility states
that, “Complicity in the commission of a crime
against humanity as set forth in Principle VI is a
crime under international law.”
 Nicaragua v. United States of America: The
USA was held liable for violation of customary
international law on non-interference in the
affairs of another State for “training, arming,
equipping, financing and supplying the contra
forces or otherwise encouraging, supporting,
and aiding military and paramilitary activities in
and against Nicaragua.
 People v. Andre Marti: “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 restrain against arbitrary and
unreasonable exercise of power is imposed.
 Walker v. State held that the search and
seizure clauses are restraints upon the
government and its agents, not upon private
individuals. X x x For one thing, the
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Constitution, in laying down the principles of the
government and fundamental liberties of the
people, does not govern relationships between
individuals. X x x Similarly, the admissibility of
the evidence procured by an individual effected
through private seizure equally applies, in pari
passu, to alleged violation, non-governmental.
 Oposa v. Factoran: the SC recognized the
human right of the children-petitioners to a
balanced and healthful ecology and of the
State’s duty to protect that right, not only for the
petitioners, but also for generations yet unborn,
thereby laying down the principle that the
solidarity right to a healthy environment is a
justiciable issue that can be properly raised
before the courts of law in our jurisdiction.
 Doctrine of Intergenerational Responsibility
means that the present generation holds the
natural resource treasures of the earth in trust
for the benefit, enjoyment, and use of the
generations of humankind yet to come, and that
State has the responsibility to protect and see
to it that this be realized.
Principle of legal capacity to sue
 Capacity of a person to commence or institute a
case in court.
 Those who cannot sue/incompetent persons:
1. Persons suffering the penalty of civil
interdiction
2. Hospitalized lepers
3. Prodigals
4. Deaf and dumb who are unable to read
and write
5. Those who are of unsound mind, even
though they have lucid intervals
6. Persons not being of unsound mind, but
by reason of age, disease, weak mind,
and other similar causes (Rule 92, Sec.
2).
Writ of Kalikasan
 A remedy available to any person or entity
whose constitutional right to a balanced and
healthful ecology is violated or threatened
with violation by an unlawful act or omission of
another person or entity, involving
environmental damage of such magnitude as to
prejudice the life, health, or property of
inhabitants in two or more cities or provinces.
Writ of Continuing Mandamus
 A writ issued by a court in an environmental
case directing any agency or instrumentality of
the government or officer thereof to perform an
act or series of acts decreed by final judgment
which shall remain effective until judgment is
fully satisfied.
Writ of Habeas Corpus
 Shall extend to all cases of illegal
confinement or detention by which any
person is deprived of his liberty, or which the
rightful custody of any person is withheld from
the person entitled thereto.
 The writ was devised and exists as a speedy
and effectual remedy to relieve persons from
unlawful restraint, and as the best and only
sufficient defense of personal freedom.
 The remedy of habeas corpus is extraordinary
and summary in nature, consistent with the
law’s zealous regard for personal liberty.
Writ of Amparo
 It is a remedy available to any person whose
right to life, liberty, and security is violated
or threatened with violation by an unlawful act
or omission of a public official or employee, or
of a private individual or entity.
 It aims to address concerns such as, among
others, extrajudicial killings and enforced
disappearance.
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Writ of Habeas Data
 It is a remedy available to any person whose
right to privacy is violated or threatened by
an unlawful act or omission of a public official or
employee or of a private individual or entity
engaged in the gathering, collecting, or storing
of data or information regarding the person,
family, home and corresponding of the
aggrieved party.
 It is an independent and summary remedy
designed to protect the image, privacy, honor,
information, and freedom of information of an
individual, and to provide a forum to enforce
one’s right to the truth and to informational
privacy.
 In order for the privilege of the writ to be
granted, there must exist a nexus between the
right to privacy on the one hand, and the other
right to life, liberty, or security.
 It requires:
1. The existence of a person’s right to
informational privacy; and
2. A showing at least by substantial evidence
of an actual or threatened violation of the
right to privacy in life, liberty, or security of
the victim are indispensable before the
privilege of the writ may be extended.
Command Responsibility (Yamashita Standard
and Medina Standard)
 The failure of a superior officer to stop human
rights violations committed by his subordinates,
though absent a showing that he directly
ordered the commission of these acts makes
the superior officer also liable.
 The doctrine of command responsibility extends
to civilian superiors only to the extent that they
exercise a degree of control over their
subordinates which is similar to that of military
commanders.
 Manalo v. Secretary of Defense – extent of
command responsibility.
Yamashita Standard
 The ruling in the case of In Re Yamashita.
 Under International Law on the law of war,
violations of war have to be avoided through the
control of the operations of war by commanders
who to some extend are responsible for their
subordinates.
 Commanders have an affirmative duty to take
measures within their power and appropriate in
the circumstances to protect prisoners of war
and the civilian population.
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.
Sources of Human Rights Law
Sources of Human Rights Law:
1. International conventions
2. International customs
3. General principles of law recognized by the
community of nations
4. Judicial decisions and the teachings of the most
highly qualified publicists
Treaties
 Also known as international agreements,
conventions, or covenants.
 They are legally binding written agreements
concluded between States.
 Art. 2, par. 1(a), VCLT – A treaty is an
international agreement concluded between
states in written form and governed by
international law whether embodied in a single
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instrument or in two or more related instruments
whatever its particular designation.
Protocol
 Subsequent agreement relative to an existing
treaty.
State is bound to a treaty
 A State’s consent to be bound by a treaty is
expressed through ratification, approval, or
acceptance.
 The act of merely signing a treaty is not enough
to bind the State. Once a treaty is ratified, the
State is bound to faithfully comply with its treaty
obligations under the doctrine of “pacta sunt
servanda”.
 Pacta sunt servanda – International
agreements must be performed in good faith. A
treaty engagement is not a mere moral
obligation but creates a legally binding
obligation on the parties. A state which has
contracted a valid international agreement is
bound to make in its legislation such
modification as may be necessary to ensure
fulfillment of the obligation undertaken.
Core international human rights treaties:
1. International Convention on Civil and Political
Rights
2. International Convention on Economic, Social,
and Cultural Rights
3. Convention Against Torture and Other Cruel,
Inhuman and Degrading Treatment or
Punishment
4. International Convention on the Elimination of
All Forms of Racial Discrimination
5. Convention on the Rights of the Child
6. Convention on the Elimination of All Forms of
Discrimination Against Women
7. International Convention on the Protection of
the Rights of All Migrant Workers and Members
of their Families
8. International Convention for the Protection of All
Persons from Enforced Disappearances
9. International Convention on the Protection and
Promotion of the Rights and Dignity of Persons
with Disabilities
International Customary Law:
 This consists of rules of law derived from the
consistent conduct of States acting out of the
belief that the law required them to act that way.
 To be considered a customary law, it must be:
1. The objective element of acts amounting
to settled practices of States; and
2. The subjective element consisting of a
belief that this practice is rendered
obligatory by the existence of a rule of law
requiring it.
 ICLs will have a binding effect on the States
only when the abovementioned elements are
present.
Jus Cogens
 Literally means “compelling law”. It is a norm
accepted and recognized by the
international community of States as a
whole from which no derogation is
permitted and which can be modified only
by a subsequent norm of general
international law having the same character
(Vienna Convention on the Law of Treaties).
 A unique class of customary laws that occupy
the highest echelon in Human Rights Law
hierarchy.
 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.
 Elements of jus cogens:
1. It is a peremptory norm of general
international law;
2. It is accepted and recognized by the
international community;
3. There can be no derogation therefrom;
4. It can be modified only by a subsequent
norm of general international law having
the same character.
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 The concept of jus cogens became their bilateral agreement regarding trade, that
controversial because of the difficulty in infringement is a private matter between the
determining what is the norm, considering that contracting States.
different States may have different cultural
 Where human rights laws which are of
influences and different standards to gauge
paramount importance for the international
what is peremptory norm.
community are violated, all states have a legal
 Norms considered as jus cogens in interest in their protection for they are
character: obligations erga omnes.
1. Laws on genocide
2. Acts of aggression
3. Principle of self-determination
4. Principle of racial non-discrimination
5. Crimes against humanity
6. Prohibition against slavery and slave trade
7. Piracy Differences between erga omnes and jus
8. Torture cogens

Erga omnes Jus cogens

Obligatio erga omnes Only some rules
All jus cogens rules
creating erga omnes
create erga omnes
 These are international obligations that are obligations are rules of
obligations.
owed by States to all, regardless of the jus cogens.
presence or absence of their assent to be It is on their recognition
They embody moral
bound thereby. by the international
values which are of
community “as a
 These obligations are intertwined with the universal validity.
whole”.
concept of jus cogens and usually arise from All States to which the
jus cogens rights. obligation is owed are
Consequences deriving
entitled to claim from
 Examples: from a breach of erga
the responsible State
omnes obligations
1. Outlawing of acts of aggression; in particular: cessation
along with further
of the internationally
2. Outlawing of genocide; consequences specific
wrongful act and
3. Basic human rights; in Art. 53 of the Vienna
performance of the
4. Protection from slavery and racial Convention Law on
obligation of reparation
discrimination; Treaties (a treaty is
in the interest of the
5. Obligations relating to self-determination; void if, at the time of
State, entity or
6. Obligations relating to the environment of its conclusion, it
individual which is
conflicts with a
common space specifically affected by
peremptory norm of
the breach. Restitution
 Barcelona Traction Light and Power general international
should be effected
Company (Belgium v. Spain) – the law).
unless materially
International Court of Justice made a distinction impossible.
between the State’s obligation to the
international community and its obligations to
another State in the field of diplomatic Universal jurisdiction of jus cogens and erga
protection. omnes obligations

 If a State violates a treaty with another State  The principles of jus cogens and erga omnes
and the treaty only pertains, for instance, to transcend boundaries.

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 A State may prosecute a crime committed
elsewhere if such crime is a jus cogens crime.
 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.
 Complaints actio popularis do not necessarily
arise from erga omnes obligations: the term
erga omnes refers to obligations of States to
the international community, while actio
popularis is a rule of procedure in bringing a
suit on another’s behalf.
 A mechanism in international law that allows
the prosecution of jus cogens crimes.
General Principles of Law
 These are unwritten, and uncodified concepts
from which laws are based. A principle of law
may evolve from local or municipal jurisprudence
of a State which is adopted by other States, from
teachings and publications, and from works of
experts.
 Examples:
1. Pacta sunt servanda
2. Rebus sic stantibus
3. Par in parem non habet imperium (State
immunity from suit)
4. Right of states to self-defense
5. Right to self-determination of people
Yogyakarta Principle
 It comprises mostly of human rights principles
already embodied in other treaties and are
considered fundamental human rights of every
individual regardless of sex.
 These rights become controversial where it
refers to LGBT, simply because of traditional
gender stereotyping.
Incorporation Clause
 The Philippine Constitution adopts the generally
accepted principles of international law as part
of the law of the land. Hence, Congress cannot
repeal, amend, or abrogate principles of
international law.
 This means that the Philippines has the
obligation to observe generally accepted
principles of international law not only as a
customary law but because of the express
provision of the incorporation clause in the
Philippine Constitution.
 Kuroda v. Jalandoni – the Philippine SC ruled
that the Military Commission created by the PH
President which tried General Kuroda of the
Japanese Imperial Army for the war crimes
committed in the Philippine territory during the
World War II was valid and constitutional by
virtue of the incorporation clause,
notwithstanding the fact that the Philippines
was not a signatory of The Hague and Geneva
Conventions at that time.
Judicial decisions and teachings:
 International case law – is recognized in Art.
38 of the Vienna Convention on the Law on
Treaties as a subsidiary means for the
determination of rules of law.
 International case law may consist of judgments
of international tribunals, the regional courts,
and even domestic courts, although
international tribunals rarely look to decisions of
domestic courts in ruling an international
dispute.
 The teachings of most highly qualified publicist
may also be consulted in ruling an international
dispute.
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International and regional tribunals: b) International Criminal Tribunal for

Rwanda (ICTR)
1. International Court of Justice (ICJ) – The
c) Nuremberg Tribunal (prosecution of
principal organ of the United Nations
major war criminals of the Nazi empire)
Organization. It was established by the Charter
d) Tokyo Tribunal (for atrocities committed
of the United Nations in June 1945.
during World War II by the Japanese
At the ICJ, only member States may lodge Imperial Army)
complaints. Individuals are not recognized as
4. Regional Courts:
parties in that court. It exercises jurisdiction in 2
kinds of cases: a) European Court of Human Rights
b) Inter-American Court of Human Rights
a) Contentious cases – cases submitted
c) African Court of Human and People’s
by State members of the UN, or other
Rights
States which are parties to the Statute
of the Court or which have accepted its 5. Hybrid or internationalized courts – these
jurisdiction; and are courts which are a mix of domestic and
international, both in the judges and staff as
b) Advisory proceedings – requests for
well as the laws applied, BUT they either are
advisory proceedings on legal matters
integrated in the domestic judicial system or
submitted by UN organs and
appended to it.
specialized agencies.
a) Sierra Leone – The Special court for
The Barcelona Traction case decided by the
Sierra Leone
ICJ laid down 2 important doctrines:
b) Cambodia – Known as the
a) A State can bring the case for the
Extraordinary Chambers in the Courts
benefit of a corporation; and
of Cambodia.
b) It made an obiter dictum recognizing
c) East Timor – Special Panels of Serious
and expanding the meaning of erga
Crimes
omnes obligations.
d) Kosovo – Known as “Regulation 64”
2. International Criminal Court (ICC) – a court
Panels in the Courts of Kosovo.
created by the Rome Statute of the
International Criminal Court on July 1998. It is
an independent permanent international
Contentious jurisdiction
criminal court, and known as the court of last
resort, and will only try cases after the  In the exercise of its jurisdiction in contentious
exhaustion of remedies before domestic courts, cases, the International Court of Justice has to
and only for the gravest offenses. decide, in accordance with international law,
disputes of a legal nature that are submitted to
The cases which may be tried at the ICC
it by States.
are:
 An international legal dispute can be defined as
a) Crimes against humanity
a disagreement on a question of law or fact, a
b) War crimes
conflict, a clash of legal views or of interests.
c) Genocide
d) Crimes of aggression
3. Ad hoc criminal tribunals: Advisory jurisdiction
a) International Criminal Tribunal of the  Since States alone have the capacity to appear
former Yugoslavia (ICTY) before the Court, public international
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organizations cannot as such be parties to any
case before it.
 A special procedure—the advisory procedure—
is available to such organizations and to them
alone.
 The Court’s advisory opinions have no binding
effect. The requesting organ, agency, or
organization remains free to decide, by any
means open to it, what effect to give to these
opinions.
Martens Clause (1989 Hague Convention):
“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.”
International Bill of Rights
International Bill of Rights – consists of Universal
Declaration of Human Rights, the International
Convention on Civil and Political Rights (its two
protocols), and the International Convention on
Economic, Social, and Cultural Rights.
Universal Declaration of Human Rights (UDHR)
 Enacted by the UN General Assembly (UNGA)
as a resolution, thus legally it has the force and
effect only of a recommendation, which is
considered soft law, and which traditionally
would have lacked binding effect upon States.
 It has been observed by States as if it were a
treaty and has since evolved into general
principles of international law.
 It contains a Preamble and 30 articles. Among
the notable declarations found in the Preamble
are:
1) Human rights are inalienable rights of
all members of the human family;
2) The recognition of human rights is the
foundation of freedom, justice, and
peace in the world;
3) The freedoms of speech and belief as
well as the freedom from fear and want
are the highest aspiration of the
common people;
4) Rebellion against tyranny and
oppression is recognized as a last
resort where human rights are not
protected.
International Convention on Civil and Political
Rights (ICCPR)
 Has two additional protocols:
a) First Optional Protocol – 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.
b) Second Optional Protocol – aimed at
the abolition of death penalty.
 The ICCPR has a compliance and monitoring
mechanism which is the Human Rights
Committee.
International Convention on Economic, Social,
and Cultural Rights (ICESCR)
 The ICESCR has a reporting mechanism called
the Committee on Economic, Social, and
Cultural Rights (CESCR).
 It has one optional protocol which provides for
the jurisdiction of the Committee on Economic,
Social, and Cultural Rights to receive and
consider communications from individuals and
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groups claiming to be victims of violations of
any of the rights set forth in the ICESCR.
Rights and freedoms under the International Bill
of Rights:
1. Equality in dignity and rights
2. Right to life, liberty, and security
3. Right against slavery
4. Right against torture
5. Right to equal protection
6. Right to effective judicial remedy
7. Right to be presumed innocent
8. Right against ex post facto law and bill of
attainder
9. Right to privacy
10. Freedom of movement
11. Right to seek asylum
12. Right to a nationality
13. Right to marry and found a family
14. Right to property
15. Freedom of thought, conscience, and
religion
16. Freedom to practice or manifest religious
beliefs
17. Freedom of expression
18. Freedom of assembly and association
19. Right to take part in government
20. Right to social security
21. Right to work
22. Right to rest and leisure
23. Right to adequate standard of living
24. Right to education
25. Right to enjoy economic, social, and cultural
life
26. Right to self-determination
27. Right to health
Application, Enforcement, and Limitations
Theories on the domestic application of
international human rights law:
1) Monist theory – International law and
domestic law comprise one legal system. In
absolute monism, international law
automatically becomes domestic law,
without need to enact a separate national
law. Domestic laws, including the
Constitution, that contravene international
law, may be declared invalid.
2) Dualist theory – International law and
domestic law are different legal systems.
International law does not become
obligatory to its citizens until the State
passes a corresponding domestic law
containing its provisions. Local laws are
considered more binding and superior by
judges and legal practitioners.
 Lex posterior – whichever is the
latter law, prevails; it is a principle
often resorted to in dualist systems.
International application of International Human
Rights Law
The consent of a State to be bound by a
treaty may be expressed by signature, exchange
of instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any
other means, if so agreed.
Signature
 Signature to a treaty does not automatically
mean consent of a State to be bound by said
treaty, if under the national law, it is the act of
ratification which operates to bind that State.
 Notwithstanding the signature, there still must
be the process of ratification, acceptance or
approval to be done by the State. Without
ratification, the signature may only operate as a
means of authentication and to show the
openness of the signatory State for further
discussions on the treaty-making process.
 Signature ad referendum means that the
signature becomes definitive only once the
signature is confirmed by the State.
 Definitive signature operates as the consent
of a State to be bound by a treaty when that
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treaty is not subject to ratification, acceptance

or approval.
Interpretative declaration
 An interpretative declaration is an instrument
Exchange of letters or notes that is annexed to a treaty with the goal of
interpreting or explaining the provisions of the
 There will necessarily be two letters if the treaty
latter.
is bilateral, with at least one from each party.

Modification
Act of formal confirmation
 Modification is the variation of certain treaty
 Where it is an international organization that
provisions only as between particular parties of
intends to be bound by a treaty, instead of
a treaty, while in their relation to the other
ratification the term to used is usually “act of
parties the original treaty provisions remain
formal confirmation.”
applicable.
 State parties may be allowed to limit, restrict, or
 If the treaty is silent on modifications, they are
modify the application of a treaty by:
allowed only if the modifications do not affect
1) Reservation the rights or obligations of the other parties to
2) Interpretative declaration the treaty and do not contravene the object and
3) Modification the purpose of the treaty.
4) Denunciation
 A State may not invoke the provisions of its
Denunciation
internal law as justification for its failure to
perform a treaty.  Denunciation means the withdrawal by a State
Party from a treaty.
 Treaties such as CRC, ICERD, and CAT allow
Reservation
denunciation.
 Reservation means a unilateral statement made
 ICCPR, ICESCR, and CEDAW do not allow
by a State when signing, ratifying, accepting,
denunciation.
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
Enforcement against individuals:
application to that State.
 Reservations are not allowed when:  Domestic enforcement – the enactment of
national laws to enforce international human
1) It is prohibited by the treaty; rights commitments.
2) It is not included in the reservations - It translates a soft law into a hard law,
specified by the treaty; making individual violators directly
accountable.
3) It is incompatible with the object and
purpose of the treaty.  International enforcement – Individuals may
be brought to justice before hybrid courts, ad
 A signatory or contracting state may object to a
hoc international courts, or before the ICC.
reservation if it believes that it is incompatible
with the object and purpose of the treaty.

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 Human rights law
- In the ICC, only crimes of genocide, crimes
against humanity, war crimes and crimes of
aggression may be brought.
Enforcement against States
1. Court action
 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, 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).
 At the European Court of Human Rights,
individuals are allowed to directly bring a
case against a State.
2. Diplomatic means
 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 or stoppage of oil imports.
 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.
5. Military intervention
 It is the use of armed force.
 The military intervention in Libya in 2011
was by virtue of a United Nations
Resolution.
 The use of force in Iraq did not have such
authority.
Restrictions and limitations
 While the substance of human rights cannot be
taken away from human beings, its exercise
may, however, be regulated.
 States do not have the absolute discretion and
prerogative to restrict the exercise of human
rights. Their actions must be bounded by
certain parameters and they must take into
consideration the following:
1) There must be a clear legal provision of
law;
2) The restriction must be a specific
legitimate purpose;
3) The proportionality test must be applied;
4) The least intrusive measure should be
applied; and
5) The law must be strictly interpreted
against restriction.
Derogation
 Art. 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;
4. The measures taken are not inconsistent
with the State’s other obligations under
international law;
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 Human rights law

5. The measures taken do not involve

discrimination solely on the ground of
race, color, sex, language, religion, or
social origin.

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