Taborada, Shaira Mae M.
Given the nature of the complaints, the Court, like the
EH 407
Assignment 2
Jus Commune of Human Rights
1. Bughartz v. Switzerland (1994 ECtHR case)
 
This case dealt with Swiss laws that granted women to use
their maiden surname before their family name (Middle name in
the Philippine Context), however does not afford the same right to
the husbands.
The petition stems from the application of the husband to be
registered under the name “Schnyder Bugartz,” which according to
him had a great impact in his career.
 
Facts:
The applicants, who are Swiss nationals, have both lived in
Basle since 1975. They were married in Germany in 1984 and Mrs
Burghartz has German citizenship also. 
In accordance with German law (Article 1355 of the Civil
Code), they chose the wife’s surname, "Burghartz", as their family
name; the husband availed himself of his right to put his own
surname in front of that and thus call himself "Schnyder
Burghartz.”
 
As the swiss registry recorded “Schynder” as their joint
surname, the couple applied to substitute it to “Burghartz” as the
family surname and “Schnyder Burghartz” as the husband’s
surname however, their application was turned down.
There is an absence of domestic laws that allows the husband
to add his surname in front of his family name. Under their laws,
only the wife is allowed to put her surname before the family
name.
In the instant case, the applicant’s retention of the surname by
which, according to him, he has become known in academic circles
may significantly affect his career. Article 8 (art. 8) therefore
applies.
As there was no redress under their domestic law, Mr and Mrs
Burghartz applied to the Commission on 26 January 1990, relying
on Articles 8 and 14 (art. 8, art. 14) of the Convention.
The Commission declared the application admissible on 19
February 1992. In its report of 21 October 1992 (made under
Article 31) (art. 31), it expressed the opinion by eighteen votes to
one that there had been a breach of Article 14 taken together with
Article 8 (art. 14+8), and by thirteen votes to six that there was no
need to examine the case under Article 8 (art. 8) taken alone.
 
Issue:
WON there was a violation of article 8 together with Article
14 of the convention? (gender-based discrimination)
 
Ruling:
The Court concluded that although not set out in Article 8,
one’s name, as a means of personal identification and of linking to
a family, none the less concerns one’s private and family life and
that allowing women but not men to keep their surnames when
they married was a violation of Article 8 together with Article 14
(discrimination based on sex).
Commission, deems it appropriate to examine the case directly
under Article 14 taken together with Article 8 (art. 14+8).
 
 Mr and Mrs Burghartz complained that the authorities had
withheld from Mr Burghartz the right to put his own surname
before their family name although Swiss law afforded that
possibility to married women who had chosen their husbands’
surname as their family name. They said that this resulted in
discrimination on the ground of sex, contrary to Articles 14 and 8
(art. 14+8) taken together.
The Commission shared this view in substance.
 In sum, the difference of treatment complained of lacks an
objective and reasonable justification and accordingly contravenes
Article 14 taken together with Article 8 (art. 14+8).
Having regard to this conclusion, the Court, like the
Commission, deems it unnecessary to determine whether there has
also been a breach of Article 8 (art. 8) taken alone.
2. Prettyv.United Kingdom(2002ECtHRcase)
Facts:
Pretty (applicant) is suffering from a neuron disease. She
wanted to die to be spared of suffering and indignity but could not
do it by herself. She wanted the employ of her husband to aid her
in her suicide.
But, it was a crime for another to assist one to commit suicide
under the British laws and her request to guarantee her husband
freedom from prosecution if he helped her was refused. It is not a
crime to commit suicide under English law, but the applicant was
prevented by her disease from taking such a step without
assistance. It is however a crime to assist another to commit suicide
The applicant claimed that the U.K. violated Article 3
(prohibition of inhuman or degrading treatment or punishment),
Article 2 (right to life), Article 8 (right to respect for private life),
Article 9 (freedom of conscience) and Article 14 (prohibition of
discrimination)
Issue:
Was there a violation of Article 2, 3, 8, 9 and 14 on the
European Convention of Human Rights?
Ruling:
In a unanimous judgment, the Court, composed of seven
judges, has found Pretty's application under articles 2, 3, 8, 9 and
14 of the European Convention on Human Rights admissible, but
found no violation of the Convention.
Significant conclusions include that no right to die, whether at
the hands of a third person or with the assistance of a public
authority, can be derived from Article 2 of the Convention. As
concerns Pretty's right to respect for private life under Article 8, the
Court considered that the interference in this case might be justified
as “necessary in a democratic society” for the protection of the
rights of others.[5]
Article 2 enjoined States to refrain from the unlawful taking of
life and to take appropriate steps to safeguard lives. Article 2 could
not be interpreted as conferring a right to die so there was no
violation of article 2. Moreover, as article 3 was construed in
conjunction with Article 2 there was no violation of article 3 either.
The article reflected the sanctity of life, and cannot be
interpreted as including a right to die. Some Convention rights
have been interpreted to confer rights not to do that which is the
antithesis of what there is an express right to do, but there was not
a right not to experience the opposite of what the articles guarantee
for articles 3, 4, 5 and 6. It was an impermissible step to proceed to
the assertion that the state has a duty to recognize a right to be
assisted to take one’s own life. The prohibition of assisted suicide
is inconsistent with the Convention. ‘[Article 3] may be described
in general terms as imposing a primary negative obligation on
States to refrain from inflicting serious harm upon persons within
their jurisdiction.’
‘As the court has had previous occasion to remark, the
concept of ‘private life’ is a broad term not susceptible to
exhaustive definition. It covers the physical and psychological
integrity of a person . . It can sometimes embrace aspects of an
individual’s physical and social identity . . Elements such as, for
example, gender identification, name and sexual orientation and
sexual life fall within the personal sphere protected by article 8.
Article 8 also protects a right to personal development, and the
right to establish and develop relationships with other human
beings and the outside world . . Though no previous case has
established as such any right to self-determination as being
contained in article 8 of the Convention, the court considers that
the notion of personal autonomy is an important principle
underlying the interpretation of its guarantees.’
3. Dante Piandiong, Jesus Morallos, and Archie
Bulan v. The Philippines (UN Doc
CCPR/C/70/D/869/1999
The Committee reiterates its conclusion that the State
committed a grave breach of its obligations under the Protocol by
putting the alleged victims to death before the Committee had
concluded its consideration of the communication
Piandiong, Morallos, and Bulan were convicted of robbery with
homicide and sentenced to death by the RTC of Caloocan City. SC
denied the appeal, and confirmed both conviction and sentence.
President granted them a 3 month reprieve.
No clemency was however granted and on 15 June 1999, counsel
presented a communication to the Human Rights Committee under
the Optional Protocol.
Piandiong and Morallos were arrested on suspicion of having
participated in the robbery of passengers of a jeepney in Caloocan
City, during which one of the passengers, a policeman, was killed.
When they were taken in custody, they were “hit in the stomach”
so that they would confess. When they were not positively
identified during the police line-up, officer allegedly curated for
them to be the ones to take the blame. All these happened in the
absence of a counsel.
According to the counsel of the accused, the judge erred in
appreciating the mitigating circumstance of voluntary surrender
and in contrast; gave weight to the aggravating circumstance of the
crime being committed by more than 3 persons when this was not
proven beyond reasonable doubt.
Death penalty is therefore unconstitutional and should only be
reserved to the most heinous crimes.
Issue:
WON the State violated its commitment to the Covenant when
it executed the death penalty despite the applicants’ communication
to the Human Rights Committee (including the petition for
clemency)?
Ruling:
Yes.
The alleged victims were therefore denied of their rights under
articles 6 and 14 of the Covenant. Having been notified of the
communication, the State party breaches its obligations under the
Protocol, if it proceeds to execute the alleged victims before the
Committee concludes its consideration and examination, and the
formulation and communication of its Views. It is particularly
inexcusable for the State to do so after the Committee has acted
under its rule 86 to request that the State party refrain from doing
so.
The Committee also cannot accept the State party's argument
that it was inappropriate for counsel to submit a communication to
the Human Rights Committee after they had applied for
Presidential clemency and this application had been rejected. There
is nothing in the Optional Protocol that restricts the right of an
alleged victim of a violation of his or her rights under the Covenant
from submitting a communication after a request for clemency or
pardon has been rejected. The State party may not unilaterally
impose such a condition that limits both the competence of the
Committee and the right of alleged victims to submit
communications.
A State party to the Covenant recognizes the competence of
the Human Rights Committee to receive and consider
communications from individuals claiming to be victims of
violations of any of the rights set forth in the Covenant.
4. Kosiek v. Germany (1986ECtHRcase)
Facts:
Mr. Rolf Kosiek, who is a German national born in 1934, lives
in Nürtingen.
After studying physics for several years, he sat his degree
examinations 1960 at the University of Heidelberg, where he took
a doctorate in physics three years later.
From 1 September 1962 to 31 October 1968, he worked in the
First Institute of Physics at the same University, first as an
employee (Angestellter) and then, from 1 April 1963, as a research
assistant with the status of temporary civil servant.
Shortly after takingup his duties, Mr. Kosiek signed a statement
certifying that he had been given notice of the Federal
Government’s decision of 19 December 1950 on anti-democratic
activities by civil servants and of the decree issued on 12
September 1955 by the Land Government of Baden-Württemberg.
Such a statement was required by the decree, whose first paragraph
read:
"It is taken for granted that candidates for civil-service posts
shall not belong to any organisation which sets out to abolish
the free democratic constitutional system (freiheitliche,
demokratische Grundordnung) or support such tendencies in
any other way, directly or indirectly. If necessary, appointment
or employment should be regarded as having been brought
about by wilful deceit (arglistige Täuschung)."
The third paragraph stated that it was for the authorities
concerned to take "the necessary action (disciplinary proceedings,
dismissal)" "against staff who fail in their duty of loyalty".
In 1970, he applied for a position as lecturer at the State
Engineering College.
In March, he passed a test there, and the college asked the Ministry
of Education and Culture of the Land of Rhineland-Palatinate to
appoint him with effect from 1 March 1971.
On 15 December 1970, the Ministry informed him that another
applicant had been given the post. A year later, having learned
through the press that his political activities in the NPD had been
the main reason for his failure to secure the appointment, Mr.
Kosiek went to court to compel the Land to employ him. His case
was dismissed.
 Mr. Kosiek’s application was lodged with the Commission on
20 February 1982. He claimed that his dismissal was contrary to
Article 10 (art. 10) of the Convention.
The Commission declared the application admissible on 16
December 1982.
Issue:
Won there was violation of Article 10 of the convention?
Ruling:
NO. Article 10 (art. 10) of the Convention, which provides:
"1. Everyone has the right to freedom of expression. This
right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall
not prevent States from requiring the licensing of
broadcasting, television or cinema enterprises.
2.  The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality
of the judiciary."
The Government contended that this provision was not material in
the circumstances; in their submission, the present case concerned
the right - not secured in the Convention - of access to a post in the
civil service.
The Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights provide, respectively, that
"everyone has the right of equal access to public service in his
country" (Article 21 para. 2) and that "every citizen shall have the
right and the opportunity ... to have access, on general terms of
equality, to public service in his country" (Article 25).
In contrast, neither the European Convention nor any of its
Protocols sets forth any such right. Moreover, as the Government
rightly pointed out, the signatory States deliberately did not include
such a right: the drafting history of Protocols Nos. 4 and 7 shows
this unequivocally. In particular, the initial versions of Protocol No.
7 (contained a provision similar to Article 21 para. 2 of the
Universal Declaration and Article 25 of the International Covenant;
this clause was subsequently deleted.
This is not therefore a chance omission from the European
instruments; as the Preamble to the Convention states, they are
designed to ensure the collective enforcement of "certain" of the
rights stated in the Universal Declaration.
The status of probationary civil servant that Mr. Kosiek had
acquired through his appointment as a lecturer accordingly did not
deprive him of the protection afforded by Article 10 (art. 10).
This provision is certainly a material one in the present case,
but in order to determine whether it was infringed it must first be
ascertained whether the disputed measure amounted to an
interference with the exercise of freedom of expression - in the
form, for example, of a "formality, condition, restriction or
penalty" - or whether the measure lay within the sphere of the right
of access to the civil service, a right that is not secured in the
Convention.
It follows from the foregoing that access to the civil service lies
at the heart of the issue submitted to the Court. In refusing Mr.
Kosiek such access - belated though the decision was -, the
responsible Ministry of the Land took account of his opinions and
activities merely in order to determine whether he had proved
himself during his probationary period and whether he possessed
one of the necessary personal qualifications for the post in
question.
That being so, there has been no interference with the exercise
of the right protected under paragraph 1 of Article 10.
5. Johnston v. Ireland ( 1986 ECtHR case)
Facts:
The applicants were an unmarried couple who could not
marry, and so legitimate their daughter, the third applicant, because
the Irish Constitution did not permit divorce. They relied on article
14 in conjunction with article 8, arguing that they had been
discriminated against on grounds of their limited financial means,
since (had they been better off) they could have obtained a divorce
by the expedient of a spell of residence outside the Republic.’
In Ireland, divorce is unconstitutional.
Since the enactment of the constitution in 1937, Irish law has
rejected any efforts to dissolve the unity of marriage. In Johnston v.
Ireland, Roy Johnston and his new family' challenged the Irish ban
on divorce in the European Court of Human Rights, claiming Irish
law violated their rights to found a family, enjoy their privacy,
practice their religion, and be free from discrimination.
The European Court of Human Rights rejected the Johnstons'
claim that the Irish legal system violated the European Convention
on Human rights. Nevertheless, the court granted their daughter
some relief. The court ordered Ireland to equalize the legal
treatment of all children under Irish law, regardless of the marital
status of the child's parents. This holding was a partial remedy for
the Johnstons' daughter Nessa,and did nothing to aid her parents.
The couple, along with their daughter, took a case to the
European Court of Human Rights, saying that their Article 8 & 12
rights had been violated.  Article 12 states that men and women
have the right to marry and have children, as long as they are both
of marriageable age and the marriage is according to the national
laws governing marriage.
Issue:
Whether or not the fact that they were unable to marry each
other was compatible with the right to marry or re-marry and with
the right to respect for family life, enshrined in Articles 12 and 8.
Ruling:
No violation under Article 12 and Article 8.
In the present case, it is clear that the applicants have lived
together for some 15 years and therefore constitute a “family” for
purposes of Art. 8.
 Thus, they are entitled to its protection, notwithstanding the
fact that their relationship exists outside marriage. The question
that arises, as regards this part of the case, is whether an effective
"respect" for the applicants’ family life imposes on Ireland a
positive obligation to introduce measures that would permit
divorce.

The Court states that the Convention must be read as a whole.

The Court does not consider that a right to divorce, which it has
found to be excluded from Article 12 can, with consistency, be
derived from Article 8, a provision of more general purpose and
scope.

The applicants failed to substantiate the alleged violation

under Article 12 and Article 8.
 Philippine Cases:
6.  Sec. of Defense et al. v. Raymund Manalo and
Reynaldo Manalo (2008)
Facts:
Brothers Raymond and Reynaldo Manalo were abducted by
military men belonging to the CAFGU on the suspicion that they
were members and supporters of the NPA.
After 18 months of detention and torture, the brothers escaped
on August 13, 2007.
Ten days after their escape, they filed a Petition for Prohibition,
Injunction, and Temporary Restraining Order to stop the military
officers and agents from depriving them of their right to liberty and
other basic rights. While the said case was pending, the Rule on the
Writ of Amparo took effect on October 24, 2007.
The Manalos subsequently filed a manifestation and omnibus
motion to treat their existing petition as amparo petition.
On December 26, 2007, the Court of Appeals granted the privilege
of the writ of amparo. The CA ordered the Secretary of National
Defense and the Chief of Staff of the AFP to furnish the Manalos
and the court with all official and unofficial investigation reports as
to the Manalos’ custody, confirm the present places of official
assignment of two military officials involved, and produce all
medical reports and records of the Manalo brothers while under
military custody.
The Secretary of National Defense and the Chief of Staff of
the AFP appealed to the SC seeking to reverse and set aside the
decision promulgated by the CA.
Issue:
WON there was a threat to their right to life and liberty, and
a violation of their right to security of the petitioners that would
warrant the granting of the writ of Amparo?
Ruling:
Yes. the Amparo Rule was intended to address the intractable
problem of "extralegal killings" and "enforced disappearances", its
coverage, in its present form, is confined to these two instances or
to threats thereof.
"Extralegal killings" are "killings committed without due
process of law, i.e., without legal safeguards or judicial
proceedings."  On the other hand, "enforced disappearances" are
"attended by the following characteristics: an arrest, detention or
abduction of a person by a government official or organized groups
or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose
the fate or whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such persons
outside the protection of law.
While the right to life under Article III, Section 1 guarantees
essentially the right to be alive — upon which the enjoyment of all
other rights is preconditioned — the right to security of person is a
guarantee of the secure quality of this life, viz.: "The life to which
each person has a right is not a life lived in fear that his person and
property may be unreasonably violated by a powerful ruler. Rather,
it is a life lived with the assurance that the government he
established and consented to, will protect the security of his person
and property.
In blatant violation of our hard-won guarantees to life, liberty
and security, these rights are snuffed out from victims of extralegal
killings and enforced disappearances. The writ of amparo is a tool
that gives voice to preys of silent guns and prisoners behind secret
walls.
7.  Ang Ladlad v. Comelec (2010)
Facts:
This is a petition filed by Ang Ladlad LGBT Party against the
Resolutions of the COMELEC as COMELEC refused to accredit
Ang Ladlad as a party-list organization under RA No. 7941,
otherwise known as the Party-List System Act.
Ang Ladlad is an organization composed of men and women
who identify themselves as lesbians, gays, bisexuals, or
transgendered individuals.
Ang Ladlad first applied for registration with the COMELEC
in 2006 but they were denied on the ground that they organization
had no substantial membership base.
And Ladlad filed for another registration but was still denied.
CHR filed a motion to intervene, saying that the petition
violated the standards and principles of the Consti, the UDHR, and
the ICCPR; Epifanio D. Salonga also filed a motion to intervene
Ang Ladlad Argument:
 Ang Ladlad argued that the denial of
accreditation by using religious dogma violated
the constitutional guarantees against the
establishment of religion
 Petitioner also claimed that the Assailed
Resolutions contravened its constitutional
rights to privacy, freedom of speech and
assembly, and equal protection of laws, as well
as constituted violations of the Philippines.
Comelec’s Contention:
Argument is grounded mainly on religious dogmas and Koran
passages, further posits that Ang Ladlad party list “exposing our
youth to an environment that does not conform to the teachings of
our faith” then quoting a bible teacher who said that homosexual as
a threat to the youth”.
Issue:
WON the denial of the registration of the Ang Ladlad party-
list was a violation of the non-discrimination clause in the ICCPR?
Ruling:
Yes.
Non-Discrimination and International Law
Our Decision today is fully in accord with our international
obligations to protect and promote human rights. In particular, we
explicitly recognize the principle of non-discrimination as it relates
to the right to electoral participation, enunciated in the UDHR and
the ICCPR. 
Citing Art. 26 ICCPR: In this context, the principle of non-
discrimination requires that laws of general application relating to
elections be applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically
enumerated as a status or ratio for discrimination in Article 26 of
the ICCPR, the ICCPR Human Rights Committee has opined that
the reference to "sex" in Article 26 should be construed to include
"sexual orientation. “Additionally, a variety of United Nations
bodies have declared discrimination on the basis of sexual
orientation to be prohibited under various international agreements
“ There is likewise no merit to the contention that R.A. 9262
We stress, however, that although this Court stands willing to
assume the responsibility of giving effect to the Philippines’
international law obligations, the blanket invocation of
international law is not the panacea for all social ills. We refer now
to the petitioner’s invocation of the Yogyakarta Principles (the
Application of International Human Rights Law In Relation to
Sexual Orientation and Gender Identity),which petitioner declares
to reflect binding principles of international law.
Using even the most liberal of lenses, these Yogyakarta
Principles, consisting of a declaration formulated by various
international law professors, are – at best – de lege ferenda – and
do not constitute binding obligations on the Philippines. Indeed, so
much of contemporary international law is characterized by the
"soft law" nomenclature, i.e., international law is full of principles
that promote international cooperation, harmony, and respect for
human rights, most of which amount to no more than well-meaning
desires, without the support of either State practice or opinio juris.  appropriations under the Priority Development Assistance Fund
At this time, we are not prepared to declare that these
Yogyakarta Principles contain norms that are obligatory on the
Philippines. There are declarations and obligations outlined in said
Principles which are not reflective of the current state of
international law, and do not find basis in any of the sources of
international law enumerated under Article 38(1) of the Statute of
the International Court of Justice.
8.  Garcia v. Drilon (2013)
Congress enacted RA No. 9262, entitled “An Act Defining
Violence Against Women and Their Children”. It defines and
criminalizes acts of violence against women and their children
(VAWC) perpetrated by women’s intimate partners, i.e, husband;
former husband; or any person who has or had a sexual or dating
relationship, or with whom the woman has a common child.
Facts:
Rosalie Jaype-Garcia filed, for herself and in behalf of her
minor children for a Temporary Protection Order against her
husband, Jesus C. Garcia pursuant to R.A. 9262.
She claimed to be a victim of physical abuse; emotional,
psychological, and economic violence as a result of marital
infidelity on the part of petitioner, with threats of deprivation of
custody of her children and of financial support.
The husband now, assails the constitutionality of RA 9262 as
being violative of the equal protection clause.
Issue:
Whether there is a violation of equal protection clause.
Ruling:
R.A. 9262 does not violate the guaranty of equal protection of
the laws.
Equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. R.A. 9262 is based on a
valid classification as shall hereinafter be discussed and, as such,
did not violate the equal protection clause by favoring women over
men as victims of violence and abuse to whom the State extends its
protection.
singles out the husband or father as the culprit. As defined above,
VAWC may likewise be committed “against a woman with whom
the person has or had a sexual or dating relationship.” Clearly, the
use of the gender- neutral word “person” who has or had a sexual
or dating relationship with the woman encompasses even lesbian
relationships.
9.  Enrile v. Sandiganbayan and People (2015)
FACTS:
The Office of the Ombudsman charged Enrile, 90 years of
age, and several others with plunder in the Sandiganbayan on the
basis of their purported involvement in the diversion and misuse of
(PDAF).
Enrile primarily filed an omnibus and supplemental motion
praying that he ba allowed to post bail should probable cause be
found against him. Sandiganbayan denied his petition on the
ground of prematurity.
Upon voluntary surrender, Enrile again filed his Motion for
Detention at the PNP General Hospital, and his Motion to Fix Bail
with the Sandiganbayan.
Sandiganbayan denies his FIRST Motion to fix bail on the
ground that only courts can determine that the evidence is not
strong against the accused. it was then premature during this stage.
Enrile filed a motion for reconsideration to fix his bail which
was also then denied.
Hence, the petition for certiorari.
Enrile’s Arguments:
Enrile claims that before judgment of conviction, an accused
is entitled to post bail as a matter of right:
A. That it is the duty and burden of the Prosecution to
show clearly and conclusively that Enrile comes
under the exception and cannot be excluded from
enjoying the right to bail;
B. that the Prosecution has failed to establish that
Enrile, if convicted of plunder, is punishable by
reclusion perpetua considering the presence of two
mitigating circumstances — his age and his
voluntary surrender;
C. that the Prosecution has not come forward with
proof showing that his guilt for the crime of
plunder is strong; and that he should not be
considered a 􏰀ight risk taking into account that he
is already over the age of 90, his medical condition,
and his social standing
.
Ombudman’s Argument:
 The Ombudsman contends that Enrile’s right to bail is
discretionary as he is charged with a capital offense; that to be
granted bail, it is mandatory that a bail hearing be conducted to
determine whether there is strong evidence of his guilt, or the lack
of it; and that entitlement to bail considers the imposable penalty,
regardless of the attendant circumstances.
ISSUE:
Is Enrile entitled to bail? If YES, on what ground(s)?
onset of his indictment for plunder, formal or otherwise, has
demonstrated his utter respect for the legal processes of this
country.
Bail for the provisional liberty of the accused, regardless
of the crime charged, should be allowed independently of the
merits of the charge, provided his continued incarceration is
clearly shown to be injurious to his health or to endanger his
life. Denying him bail despite imperiling his health and life would
not serve the true objective of preventive incarceration during the
trial.

Petition for certiorari is granted.

HELD:

YES, Enrile is entitled to bail as a matter of right based on

humanitarian grounds.

In the aspect of Human Rights:

Enrile’s poor health justifies his admission to bail.

Enrile posited in his Motion to fix bail two mitigating

circumstance: one, that he is already 70 years old and he
voluntarily surrendered.

A medical doctor attested about Enrile’s poor medical

condition stating that Enrile is actually suffering from minimal,
early, unstable type of pulmonary tuberculosis, and chronic,
granular pharyngitis," and that in said institute they "have seen
similar cases, later progressing into advance stages when the
treatment and medicine are no longer of any avail;" There is then
no question that Enrile’s advanced age and ill health required
special medical attention.

In now granting Enrile's petition for certiorari, the Court is

guided by the principal purpose of bail which is to guarantee the
appearance of the accused at the trial, or whenever so required by
the court.

The Court is further mindful of the Philippines' responsibility

in the international community arising from the national
commitment under the Universal Declaration of Human Rights

“The Philippines, therefore, has the responsibility of

protecting and promoting the right of every person to liberty and
due process, ensuring that those detained or arrested can participate
in the proceedings before a court, to enable it to decide without
delay on the legality of the detention and order their release if
justified. In other words, the Philippine authorities are under
obligation to make available to every person under detention such
remedies which safeguard their fundamental right to liberty. These
remedies include the right to be admitted to bail.”

Further, this national commitment to uphold the fundamental

human rights as well as value the worth and dignity of every person
has authorized the grant of bail not only to those charged in
criminal proceedings but also to extradites upon a clear and
convincing showing:

(1) that the detainee will not be a flight risk or a danger to

the community; and

(2) that there exist special, humanitarian and compelling

circumstances.

In our view, his social and political standing and his having
immediately surrendered to the authorities upon his being charged
in court indicate that the risk of his flight or escape from this
jurisdiction is highly unlikely. His personal disposition from the
 Human Rights as Customary International Law
10. Federal Republic of Germany v. Denmark and
Federal Republic of Germany v. The Netherlands
(Continental Shelf Cases ICJ Reports, 1969)
Facts:
On December 1, 1964, the Federal Republic of Germany and
the Netherlands concluded an agreement for the partial delimitation
of the boundary near the coast.
 On June 9, 1965, the Federal Republic of Germany and
Denmark concluded a similar agreement.
The three states failed to reach an agreement on the
boundaries beyond the limits of the partial delimitations. This
delimitation assumed that areas claimed by the Netherlands and
Denmark were coterminous, and that the agreed boundaries by the
[Germany and Denmark], and [Germany and Netherlands] were
necessarily delimited on the basis of the principle of equidistance.   The US claimed its acts were in exercise of its right to
 Denmark and Netherlands both contented that the boundaries
should be determined in accordance with the principle of
equidistance.
Issue:
What principles and rules of international law are applicable
to the delimitation as between the Parties of the areas of the
continental shelf in the North Sea?
Ruling:
The use of the equidistance method of delimitation was not
obligatory between the Parties.
There was no other single method of delimitation, the use
of which was in all circumstances obligatory;
The principles and rules of international law applicable to
the delimitation as between the parties of the areas of the
continental shelf in the North Sea which appertain to each of
them beyond the partial boundaries determined by the
Agreements 1964 and 1965 respectively are:
 Delimitation is to be effected by agreement in accordance
with equitable principles, and taking account of all
relevant circumstances, in such a way as to leave as
much as possible to each Party all those parts of the
continental shelf that constitute a natural prolongation of
its land territory into and under the sea, without
encroachment on the natural prolongation of the land
territory of the other; and
 If, in the application of this method, the delimitation left
to the Parties areas that overlap, these are to be divided
between them in agreed proportions or failing agreement,
equally, unless they decide on regime of joint
jurisdiction, under or exploitation for the zones of
overlap or any or part of them;
11. Nicaragua v. United States of America (ICJ
Reports, 1986)
Facts:
When President Somoza deoarted, a Junta of National
Reconstruction and an 18-member government was installed, the
Frente Sandinista de Liberacion Nacional (FSLN).
At first, the attitude of the United States to the democratic
coalition government was favorable and it adopted a program of
economic aid to Nicaragua.
The government of Nicaragua was then made aware that the
United States had been giving support to the “contras”, a term
employed to describe those fighting against the present Nicaraguan
Government.
Nicarague stated that the contras have caused considerable
material damage and widespread loss of life, and have also
committed such acts as killing of prisoners, indiscriminate killing
of civilians, torture, rape and kidnapping.
Nicaragua posits that the United States violated Article 2(4) of
the UN Charter, and customary international law obligation
forbidding intervention and to refrain from the threat and use of
force. 
collective self defense, guaranteed by Article 51 of the UN
Charter. 
The US also argued that even with regard to Nicaragua’s
claims based on customary international law, such could not be
invoked without reference to the UN Charter, which it considers as
the principal source of that law.
Issue:
WON there was a violation of customary international law?
Ruling:
The Court ruled that the mere fact that States declare their
recognition of certain rules is not sufficient for the Court to
consider these as being part of customary international law, and as
applicable as such to those States.
The Court has also provided that to be considered a customary
international law, the rule must satisfy the element of opinion juris.
This opinio juris may be deduced from the attitude of the Parties
and the attitude of States towards certain General Assembly
resolutions.
The effect of consent to the text of such resolutions cannot be
understood as merely that of a “reiteration or elucidation,” of the
treaty commitment undertaken in the Charter. On the contrary, it
may be understood as an acceptance of the validity of the rule or
set of rules declared by the resolution by themselves.
In this case, the weight of an expression of opinio juris of the
United States can be attached to its support of the resolution
condemning aggression, ratification of the Montevideo Convention
and acceptance of the principle of the prohibition of the use of
force which is contained in the declaration on principles.
Further confirmation of the validity as customary international
law of the principle of the prohibition of the use of force may be
found in the fact that it is frequently referred to in statements by
State representatives as being not only a principle of customary
international law but also as fundamental or cardinal principle of
such law.
12.  ICJ Advisory Opinion of 1951 on Reservations
to the Convention on Genocide
 The question concerning reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide has been An objection to a reservation made by a State which is entitled
referred for an advisory opinion to the Court by the General to sign or accede but which has not yet done so is without legal
Assembly of the UN in the following terms: effect.

“In so far as concerns the Convention in the event of a State
ratifying or acceding to the Convention subject to a reservation
made either on ratification or on accession, or on signature
followed by ratification:
I. Can the reserving State be regarded as being a party to
the Convention while still maintaining its reservation if the
reservation is objected to by one or more parties to the
Convention but not by others?
However, with respect to a signatory State without
ratification, a provisional status in its favour is established in that
both before and after the entry into force of the Convention, this
status would justify more favourable treatment being meted out to
signatory States in respect of objections than to States which have
neither signed nor acceded. 

II. If the answer to question I is in the affirmative, what is

the effect of the reservation of the reservation as between the
reserving State and:
A. The parties which object to the reservation?
B. Those which accept it?

III. What would be the legal effect as regards the answer to

question I if an objection to a reservation is made:
1. By a signatory which has not yet ratified?
2. By a State entitled to sign or accede but which
has not yet done so?

Opinion:
QUESTION I
A State which has made and maintained a reservation which
has been objected by one or more of the parties to the Convention
but not by others, can be regarded as being a party to the
Convention if the reservation is compatible with the object and
purpose of the Convention; otherwise, that State cannot be
regarded as being a party to the Convention.

Thus, on account of its abstract character, Question I cannot

be given an absolute answer and the appraisal of a reservation and
the effect of objections depend upon the circumstances of each
case. 

QUESTION II

If a party to the Convention objects to a reservation which it

considers to be incompatible with the object and purpose of the
Convention, it can in fact consider that the reserving State is not a
party to the Convention.

If, on the other hand, a party accept the reservation as being

compatible with the object and purpose of the Convention, it can in
fact consider that the reserving State is a party to the Convention.

Each State which is a party to the Convention is entitled to

appraise the validity of the reservation, and it exercises this right
individually and from its own standpoint.

As no State can be bound by a reservation to which it has not

consented, it necessarily follows that each State objecting to it will
or will not, on the basis of its individual appraisal within the limits
of the criterion of the object and purpose stated above, consider the
reserving State to be a party to the Convention.

It may be that certain parties who consider that the assent

given by other parties to a reservation is incompatible with the
purpose of the Convention.

Question III.

An objection to a reservation made by a signatory State which

has not yet ratified the Convention can have the legal effect
indicated in the reply to Question I only upon ratification. Until
that moment it merely serves as a notice to the other State of the
eventual attitude of the signatory State;
  Human Rights as General Principles of Law
13. United States v. Iran (ICJ Reports 1980)
Facts:
The case was brought by the United States following the
occupation of its Embassy in Tehran by Iranian militants on 4
November 1979, and the capture and holding as hostages of its
diplomatic and consular staff.
On a request by the United States for the indication of
provisional measures, the Court held that there was no more
fundamental prerequisite for relations between States than the
inviolability of diplomatic envoys and embassies, and it indicated
provisional measures for ensuring the immediate restoration to
the United States of the Embassy premises and the release of the
hostages.
In its decision on the merits of the case, at a time when the
situation complained of still persisted, the Court, in its Judgment
found that Iran had violated and was still violating obligations
owed by it to the United States under conventions in force
between the two countries and rules of general international law,
that the violation of these obligations engaged its responsibility,
and that the Iranian Government was bound to secure the
immediate release of the hostages, to restore the Embassy
premises, and to make reparation for the injury caused to the
United States Government.
Issue:
WON there was customary international law governing the
case at bar?
Ruling:
The Court reaffirmed the cardinal importance of the principles
of international law governing diplomatic and consular relations. It
pointed out that while, during the events of 4 November 1979, the
conduct of militants could not be directly attributed to the Iranian
State — for lack of sufficient information — that State had
however done nothing to prevent the attack, stop it before it
reached its completion or oblige the militants to withdraw from the
premises and release the hostages.
The Court noted that, after 4 November 1979, certain organs
of the Iranian State had endorsed the acts complained of and
decided to perpetuate them, so that those acts were transformed
into acts of the Iranian State.
The Court gave judgment, notwithstanding the absence of the
Iranian Government and after rejecting the reasons put forward by
Iran in two communications addressed to the Court in support of its
assertion that the Court could not and should not entertain the case.
The Court was not called upon to deliver a further judgment on the
reparation for the injury caused to the United States Government
since, by Order of 12 May 1981, the case was removed from the
List following discontinuance.
14.  United Kingdom v. Albania (Corfu Channel Case
ICJ Reports 1949)
Facts:
2 British cruisers that were navigating through Corfu Channel
were fired by Albania. Although the warships did not suffer any
damage, the British Government protested, stating that innocent
passage through straits, without the need to make any
announcement or to await permission, is a right recognized by
international law (IL). 
As they are warships, the Albanian Government replied they
had no right to pass through Albanian territorial waters without
prior authorization. The BG then advised AG that if, in the future,
fire was opened on a British warship passing through the Channel,
the fire would be returned.
4 British warships entered the North Corfu Strait. Two British
destroyers struck mines and were heavily damaged, causing deaths
and injuries among the naval personnel. Consequently, British
minesweepers swept the North Corfu Channel, after having
announce the operation in advance. The AG denied its consent.
Council of the UN recommended that the 2 governments
submit their dispute to the ICJ. The UK unilaterally instituted
proceedings against Albania by filing an application with the ICJ.
Albania and UK concluded a Special Agreement for the
purpose of submitting two questions to the ICJ.
Issue:
1) WON Albania was responsible under IL for the
explosions the occurred on Oct 22, 1946 in Albanian
waters, for the resulting damage and loss of human life and
for payment of any compensation? YES
2) WON the UK had violated the sovereignty of
Albania under IL by reason of the acts of the Royal Navy in
Albanian waters on October 22 1946 and if there was any
duty to give satisfaction? NO
Ruling:
The Court found that the factual evidence presented made it
improbable that the Albanian authorities had been unaware of the
mine laying in Albanian waters.
The court further stated that the presumed knowledge of the
AG entailed its obligation to notify “for the benefit of shipping in
general, the existence of a minefield in Albanian territorial waters
and in warning the approaching British warships of the imminent
danger to which the minified exposed them.”
Such obligations “were based on certain general and well-
recognized principles, namely: elementary considerations of
humanity, even more exacting in peace than in war; the principle of
the freedom of maritime communication; and every State’s
obligation not to allow knowingly its territory to be used for acts
contrary to the rights of other States.”
The court held that the UK had not violated Albanian
sovereignty by sending warships through the strait without prior
authorization of the AG. In this connection, the court made an
important pronouncement on the question of innocent passage
through straits, stating that it is “generally recognized, and in
accordance with international custom that States in time of peace
have a right to send their warships through straits used for
international navigation between two parts of the high seas without
the previous authorization of a coastal State, provided that the
passage is innocent.”
The court held that the Corfu Channel was such a strait and
that the passage of the British warship on October 22 1946 was
innocent.
 15.  Portugal v. Australia (The Case Concerning
East Timor ICJ Reports 1995)
Right of peoples to self-determination as right erga omnes and
essential principle of contemporary international law. Difference
between erga omnes character of a norm and rule of consent to
jurisdiction.
Facts:
On 22 February 1991, Portugal filed an Application instituting
proceedings against Australia concerning “certain activities of
Australia with respect to East Timor”, in relation to the conclusion,
on 11
considered that the resolutions could not be regarded as “givens”
constituting a sufficient basis for determining the dispute between
the Parties. It followed from all the foregoing considerations that
the Court would necessarily first have to rule upon the lawfulness
of Indonesia’s conduct. Indonesia’s rights and obligations would
thus constitute the very subject-matter of such a judgment made in
the absence of that State’s consent, which would run directly
counter to the principle according to which “the Court can only
exercise jurisdiction over a State with its consent”. The Court
accordingly found that it was not required to consider Australia’s
other objections and that it could not rule on Portugal’s claims on
the merits.

December 1989, of a treaty between Australia and Indonesia

which created a Zone of Co-operation in a maritime area between
“the Indonesian Province of East Timor and Northern Australia”.
 
According to the Application, Australia had by its conduct
failed to observe the obligation to respect the duties and powers of
Portugal as the Administering Power of East Timor and the right of
the people of East Timor to self-determination. In consequence,
according to the Application, Australia had incurred international
responsibility vis-à-vis the people of both East Timor and Portugal.

Australia’s Argument:
Australia contends that it recognizes and has always
recognized the right of the people of East Timor to self-
determination, the status of East Timor as a non-self-governing
territory, and the fact that Portugal has been named by the United
Nations as the administering power of East Timor. And that in
reality, there is really no dispute between itself and Portugal.
Australia contended that the case as presented by Portugal was
artificially limited to the question of the lawfulness of Australia’s
conduct, and that the true respondent was Indonesia, not Australia,
observing that Portugal and itself had accepted the compulsory
jurisdiction of the Court under Article 36, paragraph 2, of the
Statute, but that Indonesia had not.

Portugal’s Argument:
Portugal maintains that the rights which Australia breached
were rights erga omnes and that accordingly Portugal could require
it, individually, to respect them regardless of whether or not a state
had conducted itself in a similarly unlawful manner. 

Issue:

Can the court exercise jurisdiction over the said dispute?

Ruling:

No. In the Court's view, Portugal's assertion that the right of

peoples to self-determination, as it evolved from the Charter and
from United Nations practice, has an erga omnes character, is
irreproachable. The principle of self-determination of peoples has
been recognized by the United Nations Charter and in the
jurisprudence of it is one of the essential principles of
contemporary international law. However, the Court considers that
the erga omnes character of a norm and the rule of consent to
jurisdiction are two different things.

Whatever the nature of the obligations invoked, the Court

could not rule on the lawfulness of the conduct of a State when its
judgment would imply an evaluation of the lawfulness of the
conduct of another State which is not a party to the case. Where
this is so, the Court cannot act, even if the right in question is a
right erga omnes.
 
The Court took note, in particular, of the fact that for the two
Parties, the territory of East Timor remained a non-self-governing
territory and its people had the right to self-determination, but