5/28/2020

Types of law:
1. Natural Law
2. Positive Law

Kinds of Rights:
1. Natural Rights
-nature
-god
-reason
2. Legal Rights
-Man-made
-social agreement
-controls our natural disposition

Types of Rights:
1. Negative rights
-requires inaction ex. Freedom of speech

2. Positive rights
-requires action ex. Right to education

Human Rights
-Rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other
status. Human rights include the right to liberty, freedom from slavery and torture, freedom of opinion and
expression, the right to work and education.
-Inalienable fundamental rights to which a person is inherently entitled simply for being human

Attributes:
Inalienable
Inherent
Universal
Indivisible
Fundamental

Brief historical background:

Feudalism
Magna Carta
1200-1600
Freedom started to detach from status
Age of Enlightenment/Age of Reason
English Bill of Rights
John Lock (Natural Rights)

John Locke
Three natural rights:
1. Right to life - everyone is entitled to live
2. Right to liberty - everyone is entitled to do anything they want to so long as it doesnt conflict with the first right
3. Right to estate - entitled to own all they creat or gain through gift or trade as long as not contrary to other rights

17th Century - 1900

American Revolution 1775-1783
French Revolution 1789-1799
American Civil War 1861-1865

1789 Human Rights was first used

End of 19th Century - Early 20th Century

Social and Collective Rights
Education
Employment
Welfare
Public Health

INTERNATIONALIZATION OF THE RIGHTS

UNIVERSAL DECLARATION OF HUMAN RIGHTS
Not a binding force, but a strong suggestion that the state must comply.

National level
-constitution
-laws
-ordinances
-governmental institutions

Regional level
-Courts

International Level
-UN
Peace, development, rights and harmonization

1948 International Bill of Human Rights

2 types:
1. Declarations UDHR
2. Conventions/Treaty/Covenant ICESC, ICCP

3 Dimensions:
1. Civil and Political Rights
-vote
-ownership
-speech
-religion
2. Economic, Social and Cultural Rights
-education
-housing
-employment
-healthcare
-social security
3. Collective Rights
-green rights
-clean and healthy environment
-right to natural resources
-participation in cultural heritage
-self determination

Civil Rights
-free thought
-expression
-religion
-freedom of movement
Individual to individual

Political Rights
-to petition
-justice
-association
-assemble
Individual to State
CITIZENSHIP
The said rights are considered as a part of your citizenship

6/2/2020
3 dimensions of human rights:
1. Civil and Political Rights
-judicial rules (positive)
-restraint from the state (negative)
2. Economic, social and cultural rights
3. Collective rights

Economic, social and cultural rights

-Positive rights (people/State have to make it happen)
-people to be secured in their job, health, family relation, participation in any cultural practice
-can be demanded from the State that they should take action for this right

*State is the duty holder.

*Can it be demanded from other agencies? Yes.

1. Economic:
-workers rights
-unionize
-safety participation in economic life
-housing

2.Social:
-right to education
-literacy
-marriage
-good health
-housing

3.Cultural:
-participate in culture
-wear traditional clothing
-copyrights/intellectual
-benefitting from scientific research
-housing

Who are the people responsible?

State

Collective Rights (form of restraint or a form of positive and passive right)

1. Environment:
Right to resources
To protect environment

2. Development:
Right to resources
Self determination

3. Peace:
Self determination
To be let alone

*Ken Saro Wiwa case from Nigeria

All rights are indivisible, interrelated with each other. These rights go together if you exercise the particular rights.

*Read Rosa Parks case

*Rights can be limited if there is a Legitimate state interest related to a national concern.

3 stages of Human Rights

1. Idealization - started in the realm of ideas that reflect a consciousness against oppression, dehumanization or
inadequate performance by the state
2. Positivizaton - support for the ideas became strong and the stage is set to incorporate into a legal framework
3. Realization - whereas these rights are enjoyed by the citizens of the State by the transformation of the social,
economic and political order

Obligations of State Parties (ICCPR)

1. To respect - state must refrain from restricting the exercise of these rights where such is not expressly allowed.
2. To ensure - state must be proactive to enable individuals to enjoy these rights, to adopt executive, judicial, and
legislative measures and provide remedies for the victims.
3. To protect - requires positive act from the State

4 components of a human right:

1. Subject/right holder
-an individual, a group or persons or non governmental organization
2. Duty-holder
-entity normally a state (RP) obliged to respect, ensure the subjects rights and demands.
3. Object - the content of any given right and duty of the holder of right and the holder of obligation. This right and
this duty are the human values and needs which are found in human rights rules and norms.
4. Implementation - a set of measures, approaches and initiatives designed to realize the right concerned. Includes
laws, administrative measures, legal writs and mechanisms adopted by the three branches of the government.

6/8/2020
2nd dimension - Art 12, 13
3rd dimension -

6/11/2020
REMEDIES
1. domestic
2. International

Human Rights Violations

Acts committed by at the instigation of or with consent of a public official contrary to human rights law, causing
bodily or mental pain or suffering or death. They occur when State actors abuse or deny basic human rights.

RA 10368 Human Rights Reparation Act - any act or omission committed during the period from Sept 21, 1972
to Feb 25, 1986 by persons acting in an official capacity and/or agents of the State and includes any illegal search,
arrest or involuntary disappearance, force or intimidation causing the involuntary exile of the person from the
philippines.

Non-state actor
E.g. rebel, insurgents, non-governmental entities
Traditionally, they are called crimes. Today, they are also considered as human rights violations. It degrades the
human person.

Violations committed by the rebels are also called HUMAN RIGHTS VIOLATIONS.
(Comprehensive agreement on respect for human rights and respect for international humanitarian law - signed by
the govt peace panel and CPP/NPA/NDF Peace panel on MArch 16, 1998)

Rights and remedies are inseparable

Remedies must be in place and readily available for rights to be fully enjoyed and for rights to be amply protected
from harm, injury, and assault originating from State and non-state actors
Types of remedies:
1. Civil remedies (civil code, Art 32)
-any public officer or private individual are liable
Liberties that are defeated, can apply civil remedies:
-freedom of religion
-freedom of speech
-freedom to write for the press or to maintain a periodical publication
-freedom from arbitrary or illegal detention
-freedom of suffrage
-right against deprivation of property w/o due process of law
-right to a just compensation when property is taken for public use
-right to equal protection of laws
-right to be secure in one’s person, house, papers and effects against unreasonable searches and seizures
-liberty of abode
-privacy of communication and correspondence
-right to become a member of a society
-right to be part of an asssembly
-right to be free from involuntary servitude
-the right of the accused against excessive bail
-right to be heard by himself and counsel
-freedom from excessive fines
-freedom of access to the courts
NOTE: Need a preponderance of evidence to prove that you have suffered moral damages

2. Criminal remedies
*Crimes violating the right to be secure in their persons, houses, papers and effects against unreasonable searches
and seizures
Art 124. Arbitrary detention
Art. 296. Unlawful arrest
Art. 125. Delay in the delivery of detained persons
Art. 128 violation of domicile
Art. 129 act of maliciously obtaining search warrants and abuse in the service of warrants
Art. 130. Searching a domicile without a witness
Art.131 interruption of peaceful meetings
Art. 153 disturbances of public
*Crimes violating the right to life
*crimes violating the prohibition against torture
*crimes violating the rights to liberty of abode

3. Administrative remedies
The heads of bureaus or office has the authority to discipline his employees
Sec 30 and 36 Chap 6 Book IV of the revised admin code

6/18/2020
INTERNATIONAL REMEDIES
1. Based on treaties mechanisms:
-reporting requirement to ensure state compliance with treaty obligations
-investigation of communications to determine breaches of treaty obligations
-trial of human rights violators under the rome statute of international criminal court

Reporting requirement:
State parties are generally required by the treaties to submit to the Secretary General of the UN or to the Monitoring
body created by the treaty

Contents of the report:

1. Comprehensive account of the measures adapted by the state parties in applying the provisions of the UN
2. Elaboration on the progress that the State parties have achieved to fulfill their obligations
3. Factors and difficulties that retards their progress
The reporting cycle under the human rights treaties *INSERT PHOTO

1.State party submits its report

2. Treaty body presents state party with list of issues and questions based on concerns raised by the report
3. State party may submit written replies to list of issues and questions
-communication from both UN/monitoring body and State body to improve
4. Constructive dialogue within the committee and state party delegation during session
-opportunity for input from UN and NGOs
5. Treaty body issues its concluding observations on the report, recommendations
-output
6. Procedures to follow up on implementation of treaty body recommendations

Basis of the reporting requirement to the committee:

Treaties:
CESCR
CCPR
CERD
CAT committee on anti torture
CEDAW
CRC

2. Investigation of communications/complaints
-quasi judicial in nature
- Individuals have increasingly acquired the means to vindicate their rights at the international level; Concerning
violations of their rights contained in the nine so-called "core" human right.

Nine "core" human rights treaties

1. Civil and political rights
2. Torture and cruel, inhuman, or degrading punishment
3. Racial discrimination
4. Gender discrimination
5. Rights of persons with disabilities
6. Protection from enforced disappearance
7. Rights of migrants workers and members of their families
8. Economic, social and cultural rights
9. Rights of the child

The complaint mechanism are designed to be accessible to the lay person.

treaty bodies are composed of indepedent experts elected by State parties to the relevant treaty. Theya re tasked with
monitoring implementation in State parties of the rights set forth in the treaties with deciding on complaints brought
against those States.

9 treaty bodies may consider individual complaints or communications from individuals.

Against whom can a complain under a treaty be brought?

2 conditions:
1. It must be a party (through ratification)
2. State myst recognize the competence of the committee monitoring the relevant treaty to receive and consider
complaints from individuals

Who?
Anyone can lodge a complaint
One may also bring a complaint on behalf of another person on the condition that his written consent is obtained.
The author must explain such consent cannot be obtained

When?
As soon as possible after the exhaustion
Procedure:
The State is requested to submit its observation within a set time.

Admissibility stage - refers to the formal requirements that a complaint must satisfy before the relevant committee
can consider its substance

Special circumstances of urgency or sensitivity

Interim measures in order to prevent any irreparable harm to the author or alleged victim.

Once a committee decides a case..

As a rule, the decisions are final.
1. No violation, it will be dismissed

Effect of the decision

Represents of authority and interpretation of the treaty
Contain recommendation for the State Party
And follow up if the state has followed the recommendations

3. Trial of human rights violation under the Rome statute of international criminal court. (Cont...)

6/19/2020
(Cont...) ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
Entered into force July 1, 2002, also known as rome statute
The statute establishes the courts’:
1. Functions
2. Jurisdiction
3. Structure

Three bodies:
the ICC
Assembly of state parties
Trust fund for victims

Court only deals with 4 core international crimes

1. Genocide
2. Crimes against humanity
3. War crimes
4. Crime of aggression

Complementary jurisdiction *barq

The icc can only ivestigate anbd procesute the 4 core international crimes in situaations where states are unable or
unwilling to do so themselves; the jursidcrtion of the court is complementary to jurisdiction of domestic courts.

Complementarity principle
The ICC is complementary to national criminal jurisdictions, which means that states have the juriscition and the
primary obligation to investigate, punish and prevent genocide etc.

For that reason, the ICC will only step when national judicial systems fall and it can be demonstrated that the state is
either unwilling or unable to bring perpetrators to justice.

JURISDICTION:
The court has jurisdiction over crimes only if they are committed in the territory of a state party or committed by a
national of a state party. Exception: may have jurisdiction over if its jurisdiction is authorized by the UN security
council.

(4 core international crimes)

1. Genocide
Intentional action to destroy a people - defined as an ethnic, national, racial or religious group
UN Genocide convention definition:
Acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group as such,
including killing of its members, causing serious bodily and mental harm to members of the group., deliberately
imposing living conditions that "seek to bring about its physical destruction" in whole or in part. Preventing births,
or forcibly transferring children out of the group to another group.

Examples:
Holocaust
Armenian genocide
Rwandan genocide
Anfal genocide

2. Crimes against humanity

Certain acts that are purposely committed as part of a widespread or systemic attack directed against any civilian or
an identifiable part

Characteristics:
1. Can be committed during peace time
2. Can even be a party of governmental policy
3. Widespread or systematic practice

Examples:
Rape, slavery, state terrorism, torture, sexual violence, forced disappearances

3. war crimes
Act that constitute serious violations in the laws of war

Law of war
Refers to the component of international law that regulates the conditions for war and the conduct of warring parties

Examples:
Intentionally killing civilians or prisoners
Torturing
Destroying civilian property
Taking hostages’
Performing a perfidy
Raping
Using child soldiers
Pillaging

4. Crime of aggression
Where a person plans, initiates, or executes an act of aggression using state military force that violates the charter of
the united nations.

Examples:
Invasion
Military occupation
Annexation by the use of force
Bombardment
Military

Such acts committed are subject to the jurisdiction of the international criminal court.
If it is not a state party, its is not under the jurisdiction of the ICC.
Crime is recommended to the ICC, then to the Prosecutor moto proprio by himself investigate.

6/26/2020
Non-treaty based remedies:
1.Confidential 1503 Procedure(Private)
-it enables two UN bodies, the sub-commission on the promotion and protection on human rights and the
commission on human rights to investigate specific types of complaints-those which appear to show consistent or
widespread patterns of gross and reliably attested human rights abuse.
-applies broadly to any country in the world, not only to UN members.

NOTE: commission on human rights is not the same body as the human rights committee

2. The 1235 procedure (Public)

-create an ad hoc working group of its own members for public study of gross violation of human rights
-individuals cannot use this, although NGOs can access

Judicial remedies
1.Writ of Habeas Corpus
-granted to test the right under with a person is detained and to relieve a person if such restrain is illegal
-extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which
the rightful custody of any person is withheld from the person entitled.
-can only by suspended in cases of rebellion or invasion and hen public interest requires (Art. 3, Sec 15).

Purpose:
1. Obtain relief from illegal confinement
2. Liberate those who may be imprisoned without sufficient cause
3. To deliver them from unlawful custody

*prime specification of the application for a writ of habeas corpus is restraint of liberty (Moncupa v. Enrile)

Who may issue?

1. SC, CA, and RTC have concurrent jurisdiction to issue (Sec. 2 Rule 102)
2. Family courts have jurisdiction to hear petitions for custody of minors and the issuance of the WHC in relation to
custody of minors

Nature:
Not a suit between parties, but an inquisition by the government

Contents who may apply:

1. Party for those whose relief is intended
2. By some person on his behalf. Any who has legally justified interest in the freedom of the person whosE liberty is
restrained or who shows some authorization to make the application (Velasco vs. CA)

Requisites:
1. Person is restrained of his liberty
2. Officer or name of the person by whom he is so imprisoned
3. Place imprisoned or restrained
4. Copy of the commitment or cause of detention of such person
WRIT OF AMPARO
-means to protect
-amparo libertad - for protection of personal freedom
-amparo contra leyes - for judicial review of the constitutionality of statutes
-amparo casacion - judicial review of constitutionality and legality of judicial decisions
-amparo agrario - for protection of peasants’ rights
-SC can promulgate rules concerning the protection and enforcement of constitutional rights
-interpreted as the additional power to promulgate rules to protect and enforce rights guaranteed by the fundamental
law of the land

Coverage:
When life, liberty and security is violated or threatended with violation
1. Extralegal killings (killings without due process of law) and;
2. Enforced disappearance

Elements of enforced disappearance

1. An arrest, detention or abduction of a person by a govt official
2. Refusal of the state to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the
deprivation fo liberty which places such persons outside the protection of law

-It applies only to right to life, liberty and security of persons and not the property.
-“Right to security” as a guarantee of protection by the government, is violated by the apparent threat to the life,
liberty and security of the person.

Where to file:
RTC
Sandiganbayan
CA
SC
Temporary protection order - upon motu proprio, may order that the petitioner or the aggrieved party or any
member of the immediate family be protected
Inspection order - may order any person in possession or control of a designated land or property to permit entry
for the purpose of inspecting any relevant
Production order - to produce and permit their inspection designated papers etc

Parties shall establish their claims by Substantial evidence (Administrative cases) in writ of amparo cases.
Preponderance of evidence (civil cases)
In criminal cases, its proof beyond reasonable doubt.