THE INTERNATIONAL BILL OF HUMAN RIGHTS

The International Bill of Human Rights refers to the “collection” of three international
legal instruments on human rights. This is composed of the Universal Declaration of Human
Rights; the International Covenant on Economic, Social and Cultural Rights; and the
International Covenant on Civil and Political Rights and its two Optional Protocols.

The Legal Effect of the International Bill of Human Rights in the Philippines

The International Bill of Human Rights being part of international law is binding in the
Philippine jurisdiction. The Constitution adopts both the doctrines of incorporation and
transformation.

The Doctrine of Incorporation, Explained

As enshrined under Section 2 of Article II, the Constitution commands the State to adopt
the generally accepted principles of international law as part of the law of the land. There is no
need for the State to enact an equivalent domestic or municipal legislation to bring effect to
these principles as they are automatically recognized as part of the domestic legal system.

In Kuroda v. Jalandoni, it was explained that while the Philippines was not a signatory to
the Hague Convention and became a signatory to the Geneva Convention in 1947, a Philippine
Military Commission had jurisdiction over war crimes committed in violation of the two
conventions before 1947.

Generally accepted principle of international law, defined.

There is no exact, concrete, and all-encompassing definition of what general principle of

international law is. However, this may consist of three types: rules on customary law; general
principles of law under Article 38 (1) of the Statute of the International Court of Justice; and
“logical propositions resulting from judicial reasoning on the basis of existing international law
and municipal analogies.”

Customary International Law

As stated, customary international law is a source of those generally accepted principle

of international law that warrants its automatic and direct operation within the Philippine law
system. This pertains to the “general and consistent practice of states recognized and followed
by them from a sense of legal obligation.”

In order to establish the customary status of a particular norm, two elements must
concur: State practice, the objective element; and opinion juris sive necessitates, the subjective
element.

State practice refers to the continuous repetition of the same or similar kind of acts or
norms by States. It is demonstrated upon the existence of the following elements: (1) generality;
(2) uniformity and consistency; and (3) duration. While, opinion juris, the psychological element,
requires that the state practice or norm “be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of law requiring it.
General Principle of International Law

General principle of international law is listed as one of the sources of international law
under Article 38 of the Statute of the International Court of Justice. The Committee which
drafted this, however, does not have a consensus as to the definitive concept of general
principles of law. However, it was agreed that this should be taken as “rules accepted in the
domestic law of all civilized states.”

The general principle of international law against discrimination. It deals with the
International Convention on the Elimination of All Forms of Racial Discrimination, the
Convention Concerning Discrimination in Respect of Employment and Occupation and the
Convention against Discrimination in Education.

The general principle of non bis in idem. This simply refers to the prohibition against
second jeopardy, or that a person shall not be tried twice for the same offense. This is short of
saying that even in the absence of the provision against double jeopardy in the Philippine
constitution, the court will remain to uphold the same in consideration of such general principle
of law.

The Doctrine of Transformation, Explained.

In order for an international human rights law to become part of the Philippine domestic
legal system, it should be transformed into a municipal law through a constitutional mechanism
such as domestic legislation. Under Section 21, Article VII of the Constitution, an international
agreement or treaty becomes part of the legal system of the land when it concurred in by at
least two-thirds of all the members of the Senate. “Thus, treaties or conventional international
law must go through a process prescribed by the Constitution for it to be transformed into
municipal law that can be applied to domestic conflicts.

Any international agreement which was not concurred in by the Senate has no force and effect
of a law in the Philippine jurisdiction; “soft law” principle.

Exception to the “soft law” principle

As previously mentioned, international declaration or conventions which did not pass

through the transformation mechanism are not binding to the Philippines. These, for all intents
and purposes, are only soft laws and are not laws at all. However, per jurisprudence, there are
species of soft laws which are given the force and effect of law especially if the norms stated
therein constitute as customary international law or generally accepted principles of international
law.

The foregoing is elucidated in Mejoff vs. Director of Prisons, where it was held that the
guarantees under the Universal Declaration of Human Rights constitute as generally accepted
principles of international law forming part of the law of the land. This is despite the fact that
UDHR is a mere declaration and is neither an international convention nor a treaty.

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

Background
 After World War II, during the foundational work for the formation of the United Nations
(UN) in 1945, there was a global clamor for the inclusion of human rights in its Charter. Many
countries and international and domestic organizations expressed their aspirations to have the
bill of human rights included in the “very charter of the UN.” Even the Pope, through a radio
message pleaded for such inclusion.”

Because of this global movement, the drafting committee made various human rights
references in the Charter. In fact, the instrument opens with a paragraph reaffirming the faith of
the peoples of the United Nations in “fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women and of nations large and small.”

What is most notable among the human rights references are found in Articles 62 and 68
of the Charter. Here, it provides for the establishment of the Economic and Social Council
(ECOSOC) with the power to “make recommendations for the purpose of promoting respect for,
and observance of, human rights and fundamental freedom for all” and creation of
“commissions in economic and social fields and for the promotion of human rights,” respectively.

Nature of the Declaration

The Universal Declaration of Human Rights is not a treaty or an international agreement

which bears a direct legal effect to the domestic sphere of a particular country. This serves as a
“ standard of achievement in the areas of implementation and of enjoyment of the rights listed
and is intended to be used as an educational text to tell people about all the inherent rights they
already have.”

Through the UDHR, “people can measure their enjoyment of human rights against (the
said standard) and see where they are being repressed or in what manner their dignity is being
violated.” Consequently, in cases where there are shortcomings with respect to the standards
stated in the UDHR, people can “lodge a complaint to the authorities, even against their own
governments.”

The Philippines treats UDHR as part of human rights law; binding effect of UDHR

Despite the seemingly consensus on the nature of UDHR as not a source of direct
international legal obligation of a State, Philippine jurisprudence granted a status to such
declaration as an instrument having direct legal force and effect, In Reyes v. Gonzales, The
permeable of the UDHR was even recognized to grant the guarantee to exercise the right of
freedom from fear. The same was observed in the earlier case of the Republic of the Philippines
v. Sandiganbayan where a categorical pronouncement was made that the instrument is binding
in the Philippines.

Aspirations of the UDHR

The UDHR instrument as found on its permeable explicitly provides for the aspirations
as to why there is a need for the adoption of such declaration. The following are some of the
specific aspirations embodied in the opening text of the Declaration:

1. The recognition of the inherent dignity and of the equal and inalienable right of all
members of the human family is the foundation of the freedom, justice, and peace in
the world;
 2. The highest aspiration of the common people is the advent of a world in which
human beings enjoy freedom of speech and belief and freedom from fear and want;
3. Human rights should be protected by the rule of law in order for a man not to be
compelled to have recourse, as a last resort, to rebellion against tyranny and
oppression; and
4. The declaration of the rights of every human person is essential as a means to
promote the development of friendly relations between nations.

All are Inherently Free and Equal in Dignity and Rights

“All human beings are born free and equal indignity and right (and) are endowed with
reason and conscience and should act towards one another in a spirit of brotherhood.” This
crystallizes the concept that human rights are inherent, and that a person is endowed of such
right at birth and by reason of him being a member of the human family. This is an furtherance
of the inherence doctrine with respect to human rights that subscribes to the idea that “rights
were derived from the nature of man and not from the acts of states.”

Specific Human Rights Standards under the UDHR

As earlier stated, the UDHR sets out standards of human rights by which states are
recommended to comply. Through these standards, people can gauge whether their human
rights are violated or respected. In case the state fails to comply with these standards, then
generally, a person can invoke such before a proper tribunal or court of justice.

Right to equality and non-discrimination

“Everyone is entitled to all the rights and freedom set forth in the (UDHR) without
distinction of any kind, such as race, color, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status (or) on the basis of the political,
jurisdictional or intentional status of the country or territory to which a person belongs,” and that
all “are entitled to equal protection against any discrimination.”

The right to life, liberty, and security of person

The UDHR sets the guarantee that every person shall have the right to life, liberty and
security of person. Jurisprudence defines these rights in the following manner:

Right to life. This guarantee essentially refers to the right of a human person to be alive.

Right to liberty. This was defined as “the right to exist and the right to be free from
arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the
facilities with which he has been endowed by his Creator, subject only to such restraint as are
necessary for the common welfare.”

Right to security. The right to security of a person refers to his freedom from fear, as
the word security itself means freedom from fear.”

Right against slavery or servitude

 The UDHR not only sets the standard that no person shall be subjected in slavery or
servitude but also declares the absolute prohibition against any forms of slavery. This reinforces
the idea that all persons are born free and should not be held in tyranny and oppression. Its
origin may be traced from the natural law theory.

Prohibition against torture, cruel, inhuman, or degrading treatment or punishment

No person shall be held under torture or subjected to cruel, inhuman or degrading

treatment or punishment. This prohibition does not merely protect the bodily integrity of a person
but also “the social bases of self-respect and non-humiliation.”

The Inter-American Convention to Prevent and Punish Torture, in “reaffirming the

freedoms proclaimed under the (UDHR)” defines torture as “any act intentionally performed
whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal
investigation, as a means of intimidation, as personal punishment, as a preventive measure, as
a penalty, or for any other purpose or the use of methods upon a person intended to obliterate
the personality of the victim or to diminish his physical or mental capacities, even if they do not
cause physical pain or mental anguish.”

Right to an effective remedy in cases of violations of guaranteed fundamental rights

It is proclaimed by the UDHR that “everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights granted him by the
constitution or by law. Through this declaration, the state has a correlative duty of instituting
remedies which are readily available to the people in case their fundamental rights guaranteed
by the Constitution and laws are violated. In addition, such remedies should not only be readily
available but should also be accessible and to ensure that all courts and tribunals are fully-
functional and competent to try cases involving human right violations.

In the Philippines, the Constitution mandates the Supreme Court to promulgate rules
and procedure for the protection and enforcement of fundamental rights. Through this, the Court
instituted at least three extraordinary remedies: the writ of habeas data for the right to privacy;
writ of kalikasan for the right to a balanced and healthful ecology; and the writ of amparo fro the
right to life, liberty, and security.

Right against arbitrary arrest, detention, or exile

No person shall be “subjected to arbitrary arrest, detention, or exile.” This standard flows
from the inalienable right of a person to liberty and security.

Right to due process

Per the UDHR, a person’s right due process should include his right full equality to a fair
and public hearing by an independent and impartial tribunal. Only through this can his rights and
obligations or his criminal liability be properly and validly determined.

Right to be presumed innocent and prohibition against ex post facto law

A person who is accused of a crime has a right to criminal due process which
necessarily include his entitlement to the presumption of innocence. Such presumption should
continue to run in his favor until his guilt is proven in accordance with law through a public trial.
 In addition, a person shall have a guarantee against ex post facto law. He shall neither
be held “guilty of any penal offence on account of any act or omission which did not constitute a
penal offence, under national or international law, at the time when it was committed nor shall a
heavier penalty be imposed that the one that was applicable at the time the penal offence was
committed.

Right to privacy

“No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the
protection of the law against such interference or attacks.

Right to travel and abode

All person has the right to freedom of movement and residence within the territory of
each state. The freedom of movement includes the right to leave any country including his own
and to return to his country.

Right to seek an asylum

A person has the right to seek and to enjoy asylum in other countries. This right is
available only when there is persecution against the person seeking the same, and may not be
invoked in case such persecution arises from non-political crimes or acts contrary to the
principles of the United Nations.

Right to nationality

A person has the right to a nationality, and he shall not be arbitrarily deprived of his
nationality nor denied of the right to change his nationality.

Right to marry and found a family

All person have the right to marriage and to found a family without discrimination due to
race, nationality, or religion. However, the right to marriage shall only be entered into by persons
of full age and with their free and consent.

Family is also recognized as the natural and fundamental group unit of society and shall
be protected both by society and the State.

Right to property

Everyone has the right to own property, either alone or in association with others and
once owned, he shall not be arbitrarily deprived of such property. He shall also have the right to
the protection of his moral and material interests resulting from scientific, literary, or artistic
production of which he is the author.

Right to freedom of religion

A person has the right to freedom of religion. He shall have the freedom to believe and
to manifest such belief.
Right to freedom of expression

Everyone has the right to freedom of opinion and expression which includes the right to
have such opinion without interference and to seek, receive, and impart information and ideas
through any media.

Right to freedom of association and assembly

Everyone has the right to join or not to join an association. They shall also have the right
to peaceably assemble.

Right to participate in the running of the affairs of the government

Every person has the right to take part, directly or by a freely chosen representative, in
the government of his country through voting expressed in periodic and genuine election. Such
election shall be by universal and equal suffrage and be held by secret vote or by equivalent
free voting procedures.

Right to access to public service

“Everyone has the right of equal access to public service in his country.”

The right to social services and security

All have the right to social security in the event of unemployment, sickness, disability,
widowhood, old age, or other lack of livelihood in circumstances beyond his control.

Right to the realization of economic, social and cultural rights

A person is entitled to the realization of his economic, social, and cultural (ESC) rights.
The Declaration, recognizes that the ESC rights are indispensable to a person’s dignity and free
development of his personality. However, such realization is subject to the resources of each
State. This goes to show that the enforcement of ESC rights remains to be limited by the means
available to a State.

Labor rights

A person shall have the following rights with respect to his employment: right to work
and to freely choose his employment; right to a just and favorable conditions of work; right to
protection against employment; right against discrimination at work; right to equal pay for equal
work; right to a just and favorable remuneration; right to form and join a union; and right to rest
and leisure including reasonable limitation of hours of work and periodic holidays with pay.

Right to an adequate standard of living

Every person is entitled to a right to standard of living. Such should be adequate for the
health and well-being of himself and of his family, including food, clothing, housing and medical
care, and necessary social services.

Mother’s and child’s rights

 Motherhood and childhood have the right to special care and assistance. All children,
without any qualification, are entitled to the same social protection.

Right to education

A person has the right to education. The Declaration guarantees that: there shall be at
least free education in the elementary and fundamental stages; elementary education shall be
compulsory to all; higher education shall be equally accessible to all on the basis of merit; and
technical and professional education shall be available to all.

It is likewise proclaimed that the type of education that all persons should receive must
be directed toward the full development of his personality. Each person shall be educated for
the strengthening of the respect for human rights and fundamental freedoms. All parents have
the prior to choose the kind of education that shall be given to their children.

Right to arts and sciences

Every person has the following rights with respect to arts and science: right to freely
participate in the cultural life of the community; and the right to enjoy the arts and to share in
scientific advancement and its benefits.

Guarantee on a social and international order needed to realize human rights

“Everyone is entitled to a social and international order in which the rights and freedoms
set forth in this Declaration can be fully realized.”

The International Covenant on Civil and Political Rights

Background

The International Covenant on Civil and Political Rights was adopted by the United
Nations General Assembly on December 16, 1966. It was not until March 23, 1976 that this
came into force after receiving 35 ratifications and accessions. The Philippines signed this on
December 19, 1966 but ratified the same only on October 23, 1986. It came into full force and
effect in the Philippines three months after the instrument of ratification was deposited with the
United Nations.

The ICCPR has two separate Optional Protocols. The first Optional Protocols
establishes an individual complaint mechanism in cases of violations of the rights guaranteed
under the ICCPR. This was adopted and came into force on the dates the same as the ICCPR
itself. The Second Optional Protocol, meanwhile, abolishes death penalty and was adopted on
December 15, 1989 and came into force on July 11, 1991. The Philippines is a state party to
both optional protocols.

There are six parts corresponding to a total of 53 Articles in the ICCPR instrument: Part I
refers to the recognition of the right to self-determination; Part II mandates state parties to
establish domestic mechanisms for the enforcement and protection of the civil and political
rights enshrined under the treaty; Part III provides for the specific substantive civil and political
rights of the people; Part IV establishes the Human Rights Committee as well as the reporting
mechanism under the treaty; Part V lays down the rules on interpretation with regard to the
provisions of the Covenant; and Part VI provides for the rules on the entry into force of the
Treaty as well as rules on amending its provisions.

Nature of the ICCPR and its effect in the Philippine legal system

Unlike the UDHR, the ICCPR is a multilateral treaty to which the Philippines is a state
party and has duly ratified the Covenant. As such, it bears a direct legal effect into the Philippine
domestic sphere as if it is a municipal law. Consequently, all its provisions can be invoked and
acted upon by the Philippine courts, granting that it does not counter the Constitution.

The Covenant mandates the Philippines as signatory “to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the present
Covenant without any discrimination. This means that the primary enforcement mechanism of
the ICCPR rights are domestics. “The primacy conferred on national enforcement manifests a
concession to State sovereignty, as well as a recognition of the superior efficiency, and
effectiveness of municipal enforcement systems.

The calls upon the state party to translate the guarantees in the ICCPR into local
legislations, including the Constitution. A closer reading of the Philippine Constitutional Bill of
Rights will yield a conclusion that the provisions textualized therein are virtual copy of the
ICCPR rights.

Conflict between domestic law and the ICCPR; the former should be amended to comply
with the latter

It is interesting to note that the Covenant obligates state parties to ratify its domestic
laws to make it more complaint with the ICCPR. Article 2(2) is explicit that signatory states
should “take the necessary steps (…) to give effect to the rights recognized in the present
Covenant. These necessary steps, as mentioned, include the enactment of local laws.

In the event that there is a conflict between the provisions of the local law and the
Covenant, the same article likewise commands the State to make changes to such laws in order
to comply with the substantive guarantees of the Covenant.

However, it must be borne in mind that the Constitution at all times runs supreme and
paramount over the Covenant. In case the substantive guarantees (which does not usually
happen in the Philippines) of the ICCPR is contrary to the Constitution, the latter should still
govern.

Limits to the ICCPR Substantive Rights; proportionally of interference with the legitimate
aims
Not all rights enshrined under the ICCPR are absolute. Some of them admit express
limitations. The Human Rights Committee, however, laid down the central test to determine
whether the State interference or limitations to such guarantees are permissible and legitimate.
It was held that:

“[A]ny restrictions on any of those rights must be permissible under the relevant
provisions of the Covenant. Where such restrictions are made, States must demonstrate their
necessity and only take such measures as are proportionate to the pursuance of legitimate aims
in order to ensure continuous and effective protection of the Covenant rights. In no case may
the restrictions be applied or invoked in a manner that would impair the essence of a Covenant
right.

It must be observed, however, that before the State exercise its authority to limit ICCPR
rights, the limitation itself must be expressly granted by the Covenant. For an instance, ICCPR
rights in Article 6(1) on right to life, Article 9 (1) on right to liberty and security of person, Article
12(1) on freedom of movement, Article 17 on right to privacy to admit limitations but such
limitations must not be arbitrary. Applying the HRC standard on proportionally, such
arbitrariness must pass through the lens of whether the limit is indeed necessary and
proportionate to the legitimate aim.

ICCPR Substantive Rights

Part II of the Covenant provides for the substantive civil and political rights.

Right to self-determination

The Human Rights Committee (HRC) defines the right to self-determination as “the right
of peoples to be free from alien subjugation, domination and exploitation.” This definition was
adopted by the HRC from the UN General Assembly Resolution Number 2625 or the
Declaration on Friendly Relations,

The covenant even further expands this that by the virtue of their rights to self-
determination, all peoples can freely “determine their political status and freely pursue their
economic, social, and cultural development.

In the Philippines, the concept of the right to self-determinations was put to test in the
case of The Province of North Cotabato v. The Government of the Republic of the Philippines
Peace Panel on Ancestral Domain. Here, the issue is whether the grant of state-like autonomy
to the Bangsamoro Juridical Entity of the Muslim Mindanao is the line with the people’s rights to
self-determination. The Supreme Court in declaring the grant as not in the line with such right
held that the Muslim people of Mindanao cannot exercise their right to self-determination, more
specifically external determination, which amounts to secession from the Philippines Republic
precisely because such right cannot be properly applied since the Muslim Filipinos in Mindanao
are not under a colonial rule or under a foreign dominations. At best, they can be given the right
to autonomy in keeping with the peoples’ right to internal self-determination which is defined as
the right to pursue their “political, economic, social and cultural development within the
framework of an existing state.”

Right to Life

The Covenant guarantees the inherent rights to life of every human person and
mandates the State to protect this right by law and is prohibited to arbitrarily deprive him of this
right. The Human Rights Councils deems this rights as “supreme”.

Death Penalty. The Covenant does not absolutely prohibit death penalty. However, it
prescribes that the State many only impose death under the following circumstances:

1. Death should be imposed as a penalty only for the most serious crimes;
2. Death should be imposed in accordance with the law in force at the times of the
commission of the crime;
 3. Such law should be in accordance to the provisions of the ICCPR and to the
Convention on the Prevention and Punishment of the Crime of Genocide;
4. Death penalty shall only be carried out in pursuance of a final judgment rendered by
a competent court;
5. A person sentenced to death shall have right to seek pardon or commutation of the
sentence, and
6. No person below 18 years old or pregnant woman shall be imposed with the penalty
of death.

Reintroduction of death penalty constitutes a breach of ICCPR.

Although, the ICCPR provides of an elbow room in favor of the State with respect to the
imposition of death penalty; this exception, however cannot be applied to jurisdictions which had
already abolished death penalty. In such case, reintroduction of death penalty amounts to a
violation of Article 6 of the ICCPR. The Human Rights Committee’s observation in Rolando v,
Philippines is persuasive:

“In our view of distinction between abolition and a moratorium is decisive. In 1987 the
Philippines removed capital punishment from its legal order, so that no provision of criminal law
included a possibility to sentence any person to death. The death penalty could not be applied
on the basis of the reference to it in the Constitution. On the contrary, the constitution itself
made it very clear the capital punishment has been removed from the legal order, i.e.,
abolished…..

“Hence, our conclusion is that, for purposes of article 6 paragraph 2, of the Covenant,
the Philippines abolished capital punishment in 1987 and reintroduced it in 1993. Subsequent to
that, the author of the current communication was sentenced to death. This constituted, in our
view, a violation of article 6 of the covenant. This violation of article 6 established by the
Committee on the basis of the mandatory nature of death sentence.”

Arbitrary deprivation of life. The existence of a death penalty law does not justify the
deprivation of life of a person by the State. This shall still follow the standard of arbitrariness.

“The prohibition on the arbitrary, deprivation of life signifies the life must not be taken
unreasonable or disproportionate circumstances. Some indicators of the arbitrariness of a
homicidal act are the intention behind and the necessity for that action.”

Right against torture

The covenant absolutely prohibits the subjection of the person to torture, or to cruel,
inhuman, degrading treatment or punishment. The ICCPR does not admit any derogation from
this guarantees. A reading of article 7 of the covenant will yield an observation that three levels
of the acts are prohibited: (1) torture; (2) inhuman or degrading treatment; (3) inhuman or
degrading punishment.

Torture. The definition of the 1984 United Nation Convention against torture and other
cruel, inhuman or degrading treatment or punishment (CAT) complement the article 7 provisions
of the ICCPR. CAT defines as:

“(A)ny act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or third person information or a
confession, punishing him for an act he or a third person has committed or is suspected of
having committed, or intimidating or coercing him or third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of with
the consent or acquiescence of a public official or other person acting in an official capacity. It
does not include pain or suffering arising only from, inherent in or incidental to law sanctions.”

Degree of severity is required to consider the act as torture. The European Court of
Human Rights confirms that torture as compared to the other two prohibited acts, has in itself
the nature of severity in pain and suffering. As such, the following acts were declared as not
tantamount to torture: hooding detainees, subjecting them to constant and intense ‘white’ noise,
sleep deprivation, giving them insufficient food and drink, making them stand for long periods in
a painful posture (‘wall-standing). To simply put, the foregoing acts, lacking the degree of
severity, would merely amount to either inhuman or degrading punishment or treatment.

Negligent acts resulting in the infliction of severe pain and suffering does not
amount to torture. The definition of torture under Article 1 of the CAT requires the existence of
intention to inflict severe pain and suffering to a person. Consequently, any negligent acts which
lead to the infliction of severe pain and suffering to a person is not considered to fall within the
operational definition of torture.

Torture by omission. Although the CAT categorically defines torture as an act, this
should not mean that this cannot be committed by omission. If such would be the case, then this
would permit the perpetrator of torture to circumvent the prohibition. For an instance, if torture is
to be confined solely to acts, then the “deliberate withholding of medical assistance or food” to a
person will not amount to torture even if the intention is to inflict severe pain and suffering. This
would clearly run contrary to the spirit of the CAT.

The prohibition against torture imposes an obligation to the State and its agents.
There is a breach of the prohibition against torture under the Covenant if there is an involvement
of the State, even to the level of a mere acquiescence. In Wilson v. Philippines, the HRC
indicated that the mere act of a prison guard of not acting upon abuses committed by inmates
against the accused is an indicia of such acquiescence signaling the violation of the Article 7
guarantee of the ICCPR.

Subjecting an accused to the fear of a death sentence results in a mental anguish

amounting to torture. In Larranaga v. Philippines, the accused was sentenced to death by an
unfair trial. The same, however, was reduced to life sentence. The HRC found that although the
sentenced was reduced, this caused an unbearable mental anguish of fear to the accused of
Larranaga.

Moreover, the fact of prolonged detention of a convict in the death row causes mental
anxiety and mounting tension over his impending death. “The death row phenomenon therefore
constitutes a form of mental distress which may raise article 7 issues.”

Cruel and inhuman treatment of prisoners. The HRC found in Rouse v. Philippines
that the denial of the detainee’s right to access necessary medical attention amounts to a cruel
and inhuman treatment. In this case, the detainee was suffering from a kidney disease. While
under detention, he did not receive proper medical attention from the administrators of the
detention facilities. He did suffer from such illness for the whole duration of his confinement from
2001 to 2003. Hence, the same constitutes violation of the ICCPR guarantee against inhuman
and cruel treatment of prisoners.
 Specific States duties with respect to the prohibition on torture. The ICCPR
mandates the State to assume the following duties in line with its commitment to prohibit torture:
(1) the State shall pass and enforce legislation against torture; (2) the State shall investigate
allegation of the Article 7 violations; (3) the victims of torture shall be compensated; and the
torturers shall be brought to justice.

Treatment of persons deprived of their liberty

The Covenant guarantees that “persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of human person. If a person is not yet
convicted by final judgment, he shall “be segregated from convicted persons” and he shall
receive treatment appropriately and different from those who are already convicted. In case of
juvenile person accused of a crime, they “shall be separated from adults and be brought as
speedily as possible for adjudication.” This same treatment shall be observed in cases of
juvenile offenders.

Persons deprived of liberty, defined. This refers to those “persons who are deprived
of liberty under the laws and authority of the State who is held in prisons, hospitals, detentions
camps, or correctional institutions or elsewhere.”

Separation of accused persons from convicted person, reason. The separation of

the accused person from convicted is warranted “in order to emphasize their status as
unconvicted persons who at the same time enjoy the right to be presumed innocent.” In Pinkney
v.Canada, the HRC observed that there was no violation on the segregation requirement when
the convicted prisoners were asked to serve food to those accused persons who are situated in
a separate cells “provided the contacts between the two classes of prisoners are kept strictly to
a minimum necessary for the performance of those tasks.”

Freedom from slavery, servitude, and forced labor

The right against slavery, servitude or forced labor is a non-derogable right. This is
absolute, and attained the level of an international customary norm.

The Covenant ordains that no persons shall be held not only in slavery but also in all
their forms. He shall not subject to servitude or forced labor.

Slavery, defined. There is slavery when a person is being treated as a property of

another, in such a way that he can be exploited with impunity by his “owner” in any manner that
he wishes to.”

Servitude, defined. This “refers to other forms of egregious economic exploitation or

dominance exercised by one person over another or ‘slavery-like’ practices.” As such, the term
servitude is broader in scope than slavery.

Forced labor, exclusions. The ICCPR provides that the following shall not constitute
forced labor:

(i) “any work or service (…) normally required of a person who is under detention in
consequence of a lawful order of a court, or of a person during conditional release
from such detention;
 (ii) “any service of a military character and, in countries where conscientious objection is
recognized, any national service required by law of conscientious objectors;
(iii) “any service exacted in cases of emergency or calamity threatening the life or well-
being of the community; and
(iv) “any work or service which forms part of normal civil obligations.

Freedom from imprisonment for inability to fulfill a contract

The ICCPR guarantees that “no one shall be imprisoned merely on the ground of
inability to fulfill a contractual obligation.” This guarantees covers solely contracts which are
private in character. This does not apply to public contracts giving rise to statutory obligations.

In order to have the foregoing provision to operate, the ground of the supposed
imprisonment must be hinged on the incapability of the person to perform his contractual
obligations and not merely on his unwillingness to do so.

Failure to support a family is statutory obligations. Supposed that a couple agreed

by contract regarding the amount of support that each shall comply every month. In case, one of
them failed to make good of his obligation, can he be subjected to such penalty even if such
was agreed upon in a private contract? The answer is yes. In Liberto Calvet Rafols v.Spain, the
HRC concluded that the imprisonment of the spouse who was remiss of his obligation is not a
private contractual obligation but is a statutory obligation. Hence, he can be imprisoned on that
basis without violating the guarantee enshrined in the ICCPR.

Right to be recognized as a person before the law

The ICCPR guarantees that all persons shall have the right to be recognized as such
before the law. This guarantees is of paramount importance. One shall be recognized as a
person for him to be entitled to all rights fitting for a human person. Such recognition only covers
the protection of the law and not the legal capacity and capacity to act of one person. For
instance, a law which limits the legal capacity of a minor or insane person is valid. This does not
violate the said person’s right to be legally recognized as a person.

Right to liberty and security of a person and against unlawful arrest and detention

The Covenant guarantees that everyone shall have the right to liberty and security of his
person, and freedom from arbitrary arrest and detention.

Arbitrary arrest and detention. The guarantees of the ICCPR against arbitrary arrest
and detention includes the following:

(1) At the time of the arrest, he shall have the right to be informed of the reasons for his
arrest and shall be promptly informed of any charges against him;
(2) He shall be brought promptly before a judge or other officer authorized by law to
exercise judicial power;
(3) He shall be entitled to trial within a reasonable time or to release;
(4) He may be entitled to release while awaiting trial, in such a case, he may be subjected to
such guarantees to appear for trial and proceedings, including the execution of
judgment.”
 (5) Any person under detention is entitled to take proceedings before a court, in order that
the court may decide without delay on the lawfulness of his detention and order his
release if the detention is not lawful (also known as the right to habeas corpus); and
(6) He shall have the enforceable righto compensation in case of unlawful arrest or
detention.

Permissible limitations to a person’s right to liberty. A person’s right to liberty is not

absolute. It has not attained the level of a non-derogable right which means that this admits
some permissible limitations. The Covenant itself confirms that the State may deprive a person
of his right to liberty so provided that it is “in accordance with procedures as are established by
law “and that the deprivation in the form of either arrest or detention must not be arbitrary and
must conform to the principle of proportionality.

Arbitrariness. Arbitrariness of detention or arrest does not necessarily mean that these are
unlawful or against the law. A lawful arrest or detention may still be considered as violative of
the ICCPR guarantee if this constitutes as arbitrary. In Van Alphen v. The Netherlands, the HRC
had the occasion to set what constitutes as arbitrary arrest or detention:

“the drafting history of article 9, paragraph 1, confirms that ‘arbitrariness’ is not to be

equated with ‘against the law’, of inappropriateness, injustice and lack of predictability”
(emphasis supplied).

The Right to Security of person. Although the UDHR sets the standard of the right to
security of a person as part and parcel of the right to liberty, the same is not true with the
ICCPR. The HRC in interpreting the right to security of person under the Covenant confirms that
this is separate and distinct from the liberty right. In Delgado Paez v. Colombia, the HRC
declares that:

“Although in the Covenant the only reference to the right to security of the person is to
be found in article 9, there is no evidence that it was intended to narrow the concept of the right
to security only to situations of formal deprivation of liberty. At the same time, States parties
have undertaken to guarantees the rights enshrined in the Covenant. It cannot be the case that,
as matter of law, State can ignore known threats to life of persons under their jurisdiction, just
because he or she is not arrested or otherwise detained. States parties under an obligation to
take reasonable and appropriate measures to protect them. An interpretation of article 9 which
would allow a State party to ignore threats to the personal security of non-detained persons
within its jurisdiction would render totally ineffective the guarantees of the Covenant.

Right to freedom of movement and residence

It is an enshrined right under the ICCPR that every person shall have the right to liberty
of movement and residence. These rights are not absolute. They may be restricted by the State
by law and when necessary to protect national security, public order, public health, or morals or
rights and freedom of others.

Freedom of movement. There are two guarantees on the freedom of movement: first,
the freedom to move within the State; second, the freedom to traverse State borders in order to
both enter and leave the country.

Freedom of choice of residence. This is the right to freely set up permanent or

temporary residence at any location within a state’s territory.
Rights of aliens against expulsion

A person who is lawfully found in the territory of another State other than that of his
nationality may be expelled only when the following requirements are met:

(1) Expulsion shall be made only in accordance with a decision reached in line with law; and
(2) He shall have the right to due processes, except where the expulsion is due to
compelling reasons of national security otherwise require. This means that he shall have
the right to be heard by submitting his reasons against the expulsion and be represented
for the purpose therefore before a competent authority.

Rights against expulsion covers procedural guarantee. The provision of the ICCPR
is clear. What is provided with respect to the right of an alien against expulsion is
procedural in nature. This means that he can expelled by the State so provided that the
procedural guidelines laid down by the Covenant are satisfied.

The procedural rights against expulsion do not apply to illegal immigrant. The
said procedural rights against expulsion only apply to aliens who are lawfully found
within the territory of another state. This cannot be raised by those who are illegal
immigrant. However, the illegality of the stay of the alien concerned cannot be arbitrarily
determined. The matter should be submitted to the proper authorities designated by law
to make such determination.

Rights of a person accused of a crime

A person accused of a crime has the following rights guaranteed under the
ICCPR:

(1) Right to a fair and public trial or hearing by a competent, independent, and impartial
tribunal established by law;
(2) Right to be presumed innocent until proved guilty according to law;
(3) Right to be informed promptly and in detail in a language which he understands of
the nature and cause of the charge against him;
(4) Right to have adequate time and facilities for the preparation of his defense and to
communicate with counsel of his own choosing;
(5) Right to be tried without undue delay;
(6) Right to be tried to his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal assistance,
of his right; and to have legal assistance assigned to him, in any case where the
interests of justice so require, and without payment by him in any such case if he
does not have sufficient means to pay for it;
(7) Right to examined, or have examined, the witness against him to obtain the
attendance and examination of witness of his behalf under the same conditions as
witnesses against him;
(8) Right to have the free assistance of an interpreter if he cannot understand or speak
the language used in court;
(9) Right to be not compelled to testify against himself or to confess guilty; and
(10) He shall have the right against double jeopardy.
 Right to a fair trial. Note that the wording of Article 14 of the ICCPR does not limit the
right to a fair trial to criminal cases only. This right can also be invoked in civil cases. The right
has been regarded as the fundamental principle in the rule of law.

Equality before the Courts; Equality of arms. The right to a fair trial includes the right
to be treated without any discrimination before all courts. This ensures the equality of arms
which means that “the same procedural rights are to be provided to all the parties unless
distinctions are based on law and can be justified on objective and reasonable grounds, not
entailing actual disadvantage or other unfairness to the defendant.”

Independence of Courts. The independence of the judiciary pertains “to the procedure
and qualifications for the appointment of judges, and guarantees relating to their security of
tenure until a mandatory retirement of age or the expiry of their term of office, where such exist,
the conditions governing promotion, transfer, suspension and cessation of their functions, and
the actual independence of the judiciary from political interference by the executive branch and
legislature.”

To simply put, courts shall be free from any influence especially with respect to the
selection of judges, formulation of procedures, or the tenure of judges.

Impartiality of Courts. An impartial court consists of two aspects:

(1) “Judges must not allow their judgment to be influenced by personal bias or prejudice, nor
harbor preconceptions about the particular case before them, nor act in ways that
improperly promote the interests of one of the parties to the detriment of the other; and

(2) “The tribunal must also appear to a reasonable observer to be impartial. For instance, a
trial substantially affected by the participation of a judge who, under domestic statutes,
should have been disqualified cannot normally be considered to be impartial.”

Public trial or hearing. In order for a trial to be considered as public, it must be open to
the general public including the media for the purpose of ensuring transparency of
proceedings. As such, “courts must make information regarding the time and venue of the
oral hearing available to the public and provide for adequate facilities for the attendance of
interested members of the public, within reasonable limits, taking into account, inter alia, the
potential interest in the case and the duration of the oral hearing.

However, per Article 14 of the ICCPR, “a hearing or trial may not be made available to
the public or reasons of moral, public order (ordre public) or national security in democratic
society, or when the interest of the private lives of the parties so requires, or to the extent
strictly necessary in the opinion of the court in special circumstances where publicity would
be prejudicial to the interests of justice.”

Right to be presumed innocent. The right of the accused to be presumed innocent

entails the imposition “on the prosecution the burden of proving the charge, guarantee that
no guilt can be presumed until the charge has been proved beyond reasonable doubt,
ensures that the accused has the benefit of doubt, and requires that persons accused of a
criminal act must be treated in accordance with this principle.”

The media is also bound by this guarantee by imposing on them the obligation to “avoid
news coverage undermining the presumption of innocence.”
 Such requirement is fundamental to the protection of the human rights of the person
charged with a criminal offense.

The denial of application of bail of detainees does not a priori violate their right to
be presumed innocent. In Cagas, Butin, and Astillero v. The Philippines, the HRC made a
finding that the denial of the application for bail of the accused does not automatically
undermine their right to the presumption of innocence, thus:

“With regard to the allegation of violation of article 14 (2), on account of the denial of bail,
the Committee finds that the denial did not a priori affect the right of the authors to be presumed
innocent. Nevertheless, the Committee is of the opinion that the excessive period of preventive
detention, exceeding nine years, does affect the right to be presumed innocent and therefore
reveals a violation of article 14 (2).”

Right to be informed of the nature and causes of the accusations against him. This
guarantee does not apply to persons under custodial investigation. Their right to information is
guaranteed at the time of the arrest while in this instance, the right is ensured at the time of the
proceedings.

The right of the accused to be informed promptly of the nature and cause of the
accusations against him may be satisfied “by stating the charge either orally---if later confirmed
in writing---or in writing, provided that the information indicates both the law and the alleged
general facts on which the charge is based.”

Right to have adequate time and facilities to prepare his defense. This guarantees
that the “accused person must have adequate time and facilities for the preparation of their
defense and to communicate with counsel of their own choosing. This provision is an important
element of the guarantee of fair trial and an application of the principle of equality of arms. In
cases of an indigent defendant, communication with counsel might only be assured if a free
interpreter is provided during the pre-trial and trial phase.”

The requirement of adequate time is considered on a case to case basis. “If counsel
reasonably feel that the time for the preparation of the defense is insufficient, it is incumbent on
them to request the adjournment of the trial. A State party is not to be held responsible for the
conduct of a defense lawyer, unless it was, or should have been, manifest to judge the lawyer’s
behavior was incompatible with the interest of justice. There is an obligation to grant reasonable
requests for adjournment, in particular, when the accused is charged with a serious criminal
offence and additional time for preparation of the defense is needed.”

On the other hand, the requirement of adequate facilities require that the accused must
have access to the pieces of documentary evidence including “all materials that the prosecution
plans to offer in court against the accused or that are exculpatory.

Right to speedy trial. The accused must have the right to a trial without undue delay.
This is to “ensure that deprivation of liberty does not last longer than necessary in the
circumstances of the specific case, but also to serve the interest of justice.” There is no definite
period to consider the undue delay of the trial. However, in cases decided by the HRC, the
delay amounting to 22 months or more from arrest and conviction amount to a violation of this
right.”
 Right to be present during trial. The accused has a right to be present during his own
trial. However, this not absolute. The trial may still proceed even in his absence especially when
he declined the exercise of this right despite notice to him of the trial.

Right against ex post facto law

“No one shall be held guilty of any criminal offense on account of any act or omission
which did not constitute a criminal offense, under national or international law, at the time when
it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at
the time when the criminal offence was committed. If, subsequent to the commission of the
offence, provision is made by law for the imposition of the lighter penalty, the offender shall
benefit thereby.”

The prohibition of incarceration for a crime which was innocent was committed is in
keeping of the principles in criminal law of nullum crimen sine lege (no crime except in
accordance with the law), and nulla poena sine lege (no punishment except in accordance with
the law).

Exception. The guarantee against ex post facto law shall not apply on “the trial and
punishment of any person for any act or omission which, at the time when it was committed,
was criminal according to the general principles of law recognized by the community of nations.”

Right to privacy

A person shall not “be subjected to arbitrary or unlawful interference with his privacy,
family, home, or correspondence, nor to unlawful attacks on his honor and reputation” and in
cases of such violation, he shall have “the right to the protection of the law against such
interference or attacks.”

Permissible interference on right to privacy. “The term ‘unlawful’ means that no

interference can take place except in cases envisaged by the law. Interference authorized by
States can only take place on the basis of law, which itself must comply with the provisions,
aims and objectives of the Covenant.”

Right to freedom of thought, conscience, and religion

A person has the right to freedom of thought, conscience, and religion. He has the right
to freely choose his belief or religion as well as to manifest such religion. He cannot be
compelled to choose a religion against his will. His freedom to manifest his religious belief may
be subjected to limitations prescribed by law and which are necessary to protect public safety,
order, health or morals or the fundamental rights and freedoms of others.”

Scope of protection. “Article 18 protects theistic non- theistic and atheistic beliefs, as well as
the right not to profess any religion or belief. The term ‘belief’ and ‘religion’ are to be broadly
construed. Article 18 is not limited in its application to traditional religions or religions and beliefs
with institutional characteristics or practices analogous to those of traditional religions.”

Limitations on permissible restrictions against the freedom to manifest one’s beliefs.

“Limitations imposed must be established by law and must not be applied in a manner that
would vitiate the rights guaranteed in article 18. The Committee observes that paragraph 3 of
article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there,
even if they would be allowed as restrictions to other rights protected in the Covenant, such as
national security. Limitations may be applied only for those purposes for which they were
prescribed and must be directly related and proportionate to the specific need on which they are
predicated. Restrictions may not be imposed for discriminatory purposes or applied in a
discriminatory manner.

Right to freedom of opinion and expression

“Everyone shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.”

Limitations to the exercise of the freedom of expression. This freedom is not

absolute. Its exercise may be subject to certain restrictions, but such shall satisfy the following:
(1) The restrictions must be in accordance with law; and
(2) The restriction must be necessary for:
a. The respect of the rights or reputations of others; or
b. The protection of national security or of public order or of public health.

Freedom of opinion, concept. “Paragraph 1 of the article 19 requires protection of the

right to hold opinions without interference. This is a right to which the Covenant permits
no exception or restrictions. Freedom of opinion extends to the right to change an
opinion whenever and for whatever reason a person so freely chooses. No person may
be subject to the impairment of any rights under the Covenant on the basis of his or her
actual, perceived or supposed opinions. All forms of opinion are protected, including
opinions of a political, scientific, historic, moral or religious nature. It is incompatible with
paragraph 1 to criminalize the holding of an opinion. The harassment, intimidation or
stigmatization of a person, including arrest, detention, trial or imprisonment for reasons
of the opinions they may hold, constitutes a violation of article 19, paragraph 1.”

Freedom of expression, scope. The guarantee on the freedom of expression covers

the right to seek, receive, and impart the following information on:
(1) Communication of every form of idea and opinion which is capable of
transmission;
(2) Political discourse;
(3) Commentary on one’s own affair
(4) Commentary on public affairs;
(5) Human rights discussions;
(6) Journalism;
(7) Cultural and artistic expressions;
(8) Religious discourse;
(9) Teaching discourse; and
(10) Commercial advertising;
(11)
There is an entanglement between the right to freedom of expression and the right to
information of a person.
Right to freedom of assembly

The Covenant guarantees the recognition of the right of every person to peaceful
assembly. This right, however, is subject to limitations which should be made by law and must
be necessary in the interest of national security or public safety, public order (order public), the
protection of public health or morals or the protection of the rights and freedom of others.

Right to freedom of association

It is guaranteed that “everyone shall have the right to freedom of association with others,
including the right to form and join trade unions for the protection of his interests. “Such right
can only be limited by satisfying the following requirements:
(1) The restriction must be made by law; and
(2) The restriction must be necessary in a democratic society in the interests of national
security or public safety, public order (order public), the protection of public health or
morals or the protection of the rights and freedoms of others. Reason behind this is in
order for the State to secure the political neutrality of these entities.

Limited right to association of members of the police and the armed forces.

The members of the police force and the military enjoy the limited right to association.
Such limitation may only be provided by law and may not necessarily in pursuance of the
interest of national security, public safety, public order, public health or morals or protection
of the rights and freedoms of others. Reason behind this is in order for the State to secure
the political neutrality of these entities.

Right to marry and found a family

All persons have the right to marriage and to found a family without discrimination due to
race, nationality, or religion. However, the right to marriage shall only be entered into by
persons of full age and with their free and consent. Family is also recognized as the natural
and fundamental group unit of society and shall be protected both by society and the State.

The concept of family transverses beyond marriage. “The words ‘the family’ in article
23, paragraph 1, do not refer solely to the family home as it exists during the marriage. The
idea of the family must necessarily embrace the relations between parents and child.
Although divorce legally ends a marriage, it cannot dissolve the bond uniting father----or
mother---and child: this bond does not depend on the continuation of the parents’ marriage.”

Equality in marriage. “The right of each spouse to retain the use of his or her original
family name or to participate on an equal basis in the choice of a new family name should
be safeguarded. During marriage, the spouses should have equal rights and responsibilities
in the family. This equality extends to all matters arising from their relationship, such as
choice of residence, running of the household, education of the children and administration
of assets. Such equality continues to be applicable to arrangements regarding legal
separation or dissolution of the marriage.”

Children’s rights
 Every child has the following rights under the ICCPR: (1) right against discrimination; (2)
right to measures of protection, (3) right to be registered and have a name, (4) right to have
nationality.

This guarantee is in addition to all other rights enshrined in the Covenant. “Article
24 of the International Covenant on Civil and Political Rights recognizes the right of every child,
without any discrimination, to receive from his family, society and the State the protection
required by his status as a minor. Consequently, the implementation of this provision entails of
adoption of special measures to protect children, in addition to the measures that States are
required to take under article 2 to ensure that everyone enjoys the rights provided for in the
Covenant. The reports submitted by States parties often seem to underestimates this obligation
and supply inadequate information on the way in which children are afforded enjoyment of their
right to a special protection.

“In this connection (…) the rights provided for in article 24 are not the only ones that the
Covenant recognizes for children and that, as individuals, children benefit from all of the civil
rights enunciated in the Covenant. In enunciating a right, some provisions of the Covenant
expressly indicate to States measures to be adopted with a view to affording minors greater
protection than adults. Thus, as far as the right to life is concerned, the death penalty cannot be
imposed for crimes committed by persons under 18 years of age. Similarly, if lawfully deprived
of their liberty, accused juvenile offenders shall be subject to a penitentiary system that involves
segregation from adults and is appropriate to their age and legal status, the aim being to foster
reformation and social rehabilitation. In other instances, children are protected by the possibility
of the restrictions---provided that such restriction is warranted---of a right to recognized by the
Covenant, such as the right to publicize a judgement in a suit of law or criminal case, from which
an exception may be made when the interest of the minor so requires.

The State has the duty to intervene to restrict parental authority basis. “In cases
where the parents and the family seriously fail in their duties, ill-treat or neglect the child, the
State should intervene to restrict parental authority and the child may be separated from his
family when circumstances so require.” This is in line with the role of the State as parens patriae
or the father of his country.

Setting of the minimum age of criminal liability is left to the reasonable

determination of States. The Covenant does not indicate the age at which a person attains his
majority (…) in this respect, States should indicate in their reports the age at which the child
attains his majority in civil matters and assumes criminal responsibility. (However, the said age)
should not be set unreasonably low and that in any case a State party cannot absolve itself from
its obligation under the Covenant regarding persons under the age of 18, notwithstanding that
they have reached the age of majority under domestic law.”

Right of a child to be registered and have a name, reason. “Providing for the right to
have a name is of special importance in the case of children born out of wedlock. The main
purpose of the obligation to register children after birth is to reduce the danger of abduction,
sale of or traffic in children, or of other types of treatment that are incompatible with the
enjoyment of the rights provided for in the Covenant.

Political right to participate in the affairs of government

The Covenant guarantees the right of every person to take part in the government of his
country, particularly: (1) To take part in the conduct of public affairs, directly or through freely
chosen representatives, (2) to vote and to be elected at genuine periodic elections which shall
be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free
expression of the will of electors, and (3) to have access, on general terms of equality, to public
service in his country.

Right to public participation, scope. “The conduct of public affairs (…) is a broad
concept which relates to the exercise of political power, in particular the exercise of legislative,
executive and administrative powers. It covers all aspects of public administration, and the
formulation and implementation of policy at international, national, regional and local levels.”
(emphasis supplied)

Right to vote, permissible restrictions. “The right to vote at elections and referenda
must be established by law and may be subject only to reasonable restrictions, such as setting
a minimum age limit for the to vote. It is unreasonable to restrict the right to vote on the ground
of physical disability or to impose literacy, educational or property requirements. Party
membership should not be a condition of eligibility to vote, nor a ground of disqualification. In
the Philippines, the Constitution expressly provides that “no literacy, property, or other
substantive requirement shall be imposed on the exercise of suffrage.”

Right to be voted, permissible restrictions. “Any restrictions on the right to stand for
election, such as minimum age, must be justifiable on objective and reasonable criteria.
Persons who are otherwise eligible to stand for election should not be excluded by
unreasonable or discriminatory requirements such as education, residence or descent, or by
reason of political affiliation. No person should suffer discrimination or disadvantage of any kind
because of that person’s candidacy.”

Right of minorities

The Covenant guarantees that ethnic, religious or linguistic minorities shall have the
collective right to enjoy their own culture, and to profess and practice their own religion or to use
their own language.

Minority, defined. Minority refers to a group which is “numerically inferior to the rest of
the population of a State, in a non-dominant position, whose members---being nationals of
State-possess ethnic, religious or linguistic characteristics differing from those of the rest of the
population and show, if only implicitly, a sense of solidarity, directed towards preserving their
culture, traditions, religion or language.

The International Covenant on Economic, Social, and Cultural Rights

Background

The International Covenant on Economic , Social, and Cultural Rights (ICESCR) was
adopted by the United Nations General Assembly through Resolution 2200A (XXI) on
December 16, 1966 and entered into force on January 3, 1976 after thirty-five states ratified and
acceded to the instrument. The Philippines, on its part, signed the Covenant on December 19,
1966 and ratified the same on June 7, 1974.

The ICESCR is considered as the twin convention of the ICCPR except that the former
deals with economic, social, and cultural rights while the latter guarantees civil and political
rights. Moreover, there are major differences as to the phraseology used between the two
Covenants. The ICESCR employs the phrases “State Parties recognize the right of everyone to”
while the ICCPR uses “everyone has the right to” or “no one shall be.” These differences as to
the terminologies gave an impression that the ICCPR provisions are mandatory while the
ICESCR are not, and shall be subject to available resources of a State party to the Covenant in
order to make good of its treaty obligations under the Covenant. Nevertheless, both sets of
guarantees remain to be interrelated to one another considering that both ICCPR and ICESCR
invoke the provisions of the Universal Declaration of Human Rights which thus crystallizes the
long-held principle of interdependence.

The ICESCR is composed of five parts: Part I on the recognition of the right to self-
determination; Part II on the definition of the general nature of state parties’ obligations under
the Covenant; Part III on the specific guarantees; Part IV on the international implementation of
the Convention’s provisions; and Part V on customary final provisions with respect to human
rights treaties.

The ICESCR contains welfare rights and generally demands positive obligation from the
guarantor of the right

The ICESCR generally provides for entitlement rights or welfare rights which “are
intended to guarantee success, at least at a minimum level (and) are conceived as entitlements
to have certain goods, not merely to pursue them. They are rights to have the goods provided
by others if one cannot (or will not) earn them oneself.” This “by nature (is) a right to a positive
outcome, not contingent on the success of one’s own efforts. It must therefore impose on others
the obligation to ensure that outcome.”

Specific Substantive Guarantees under the ICESCR

As previously stated, the specific substantive guarantees of the Covenant is found on

Part III of the same instrument, particularly from Article 6 to 15.

Right to work

A State party to the Covenant recognizes the right of every person to work. Such
recognition includes: (1) the right of everyone to employment opportunity, (2) the right to freely
choose his employment; and (3) the right to just and favorable conditions of work.

Just and favorable conditions of work, components. The recognition to person’s

right to just and favorable conditions of work consists of: (1) worker’s remuneration; (2) safe and
healthy working conditions; (3) equal employment opportunities; (4) rest, leisure, and
reasonable limitation of working hours.

Worker’s remuneration, requirements. The recognition of the worker’s right to

remuneration consists of the recognition to the right to fair wages, the right to equal pay for
equal work, and the right to a decent living.

The right to work refers to the right to a decent work. “Work as specified in article 6
of the Covenant must be decent work. This is work that respects the fundamental rights of the
human person as well as the rights of workers in terms of condition of work safety and
remuneration. It also provides an income allowing workers to support themselves and their
families as highlighted in article 7 of the Covenant. These fundamental rights also include
respect for the physical and mental integrity of the worker in the exercise of his/her
employment.”

The right to freely choose an employment, concept. “this implies not being forced in
any way whatsoever to exercise or engage in employment and the right of access to a system
of protection guaranteeing each worker access to employment. It also implies the right not to be
unfairly deprived of employment.”

Right to form union.

The right to unionism of every worker is recognized under the ICESCR and such is for
the protection of his economic and social interests. This also involves the recognition of their
right to a lawful strike. Attached with this recognition is the right of the union itself to further
establish national and international trade union organizations.

General limitations. The right to unionism may be limited by law which are necessary in
a democratic society in the interests of national security or public order or for the protection of
the rights and freedoms of others.

Limited right to unionism of the members of the police and armed forces. The
ICESCR provides that even if not by law, the right to join, form and assist union of the police
and military may be restricted by the State if it is in pursuance of national security or public order
or for the protection of the rights and freedoms of others.

Right to social security

The State parties to the ICESCR is mandated to recognize the right of every person to
social security including the right to social insurance.

Right to social security, coverage. “The right to social security encompasses the right
to access and maintain benefits, whether in cash or in kind, without discrimination in order to
secure protection, inter alia, from (a) lack of work-related income caused by sickness ,disability,
maternity, employment injury, unemployment, old age or death of a family member; (b)
unaffordable access to health care; (c) insufficient family support, particularly for children and
adult dependents.”

Right of the family, mother and their children

The ICESCR mandates States Parties to recognize the widest possible protection and
assistance to the family particularly for its establishment. This entails special protection to
mother during a reasonable period before and after childbirth such as provisions for paid leave
or leave with adequate social security benefits during such periods.

Right of children. The Covenant secures the recognition by the States of the right of
children: (1) right to special measures of protection and assistance; (2) right to be protected
from economic and social exploitation; (3) right to protection from illegal child labor; and (4) right
against employment in work which harmful to their morals, health, or life, or likely to hamper
their normal development.”
 Marriage, requirement. The Covenant does not specify for the sexes which are allowed
to enter into marriage. The only requirement that it was made was that the same must be
entered into by the couple based on their free consent.

Right to adequate standard of living

The States parties to the ICESCR recognizes the right of the people to an adequate
standard of living. This is composed of the recognition of their right to; adequate food; adequate
clothing; adequate housing; and continuous improvement of living conditions.

Freedom from hunger. Due to the recognition of the right to adequate standard of
living, State Parties are obligated to undertake measures geared towards the following
objectives:

(1) “To improve methods of production, conservation and distribution of food by making full
use of technical and scientific knowledge, by disseminating knowledge of the principles
of nutrition and by developing or reforming agrarian system in such way as to achieve
the most efficient development and utilization of natural resources; and

(2) “Taking into account the problems of both food-importing and food-exporting countries,
to ensure an equitable distribution of world food supplies in relation to need.”

Adequate housing, concept. Adequate housing refers to the requirement of “adequate

privacy, adequate space, adequate security, adequate lighting and ventilation, adequate
basic infrastructure and adequate location with regard to work and basic facilities---all at a
reasonable cost.”

Right to health

The Covenant guarantees the recognition by State Parties of “the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health.”

State responsibilities in relation to the right to health. “The steps to be taken by the
States Parties to the present Covenant to achieve the full realization of this right shall include
those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the
healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other
diseases; and
(d) The creation of conditions which would assure to all medical service and medical
attention in the event of sickness.”

Right to education

The recognition by State party to the ICESCR of the right of a person to education
entails that they shall recognize: (a) that education shall be directed to the full development of
the human personality and the sense of its dignity, and shall strengthen the respect for human
rights and fundamental freedoms; and (b) that education shall enable all persons to participate
effectively in a free society, promote understanding, tolerance and friendship among all nations
and all racial, ethnic or religious groups, and further the activities of the United Nations for the
maintenance of peace.

Specific state responsibilities in relation to the right to education. “The States

Parties to the present Covenant recognize that, with a view to achieving the full realization of
this right:

(a) Primary education shall be compulsory and available free to all;

(b) Secondary in its different forms, including technical and vocational secondary
education, shall be made generally available and accessible to all by every appropriate means,
and in particular by the progressive introduction of free education;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by
every appropriate means, and in particular by the progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for

those persons who have not received or completed the whole period of their primary
education; and

(e) The development of a system of schools at all levels shall be actively pursued, an
adequate fellowship system shall be established, and the material conditions of
teaching staff shall be continuously improved”; and

(f) Undertake to have respect for the liberty of parents and, when applicable, legal
guardians to choose for their children schools, other than those established by the
public authorities, which conform to such minimum educational standards as may be
laid down or approved by the State and to ensure the religious and moral education
of their children in conformity with their own convictions.

Right to education, nature. “Education is both a human right in itself and an

indispensable means of realizing other human rights. As an empowerment right, education is
the primary vehicle by which economically and socially marginalized adults and children can lift
themselves out of poverty and obtain the means to participate fully in their communities,
education has a vital role in empowering women, safeguarding children from exploitative and
hazardous labor and sexual exploitation, promoting human rights and democracy, protecting the
environment, and controlling population growth. Increasingly, education is recognized as one of
the best financial investments States can make. But the importance of education is not just
practical: a well-educated, enlightened and active mind, able to wander freely and widely, is one
of the joys and rewards of human existence.”

Right to culture

The State Parties to the ICESCR shall recognize the right of everyone: (a) to take part in
cultural life; (b) to enjoy the benefits of scientific progress and its applications; and (c) to benefit
from the protection of the moral and material interests resulting from any scientific, literary, or
artistic production of which he is the author.

Specific state responsibilities in relation to the right to culture. The State shall take
the following steps to ensure the full realization of a person’s right to culture: (a) perform
undertakings necessary for the conservation, the development and the diffusion of science and
culture; and (b) undertake to respect the freedom indispensable for scientific research and
creative activity.

Right to take part in cultural life is characterized as a freedom, consequence. “The

right to take part in cultural life can be characterized as a freedom. In order for this right to be
ensured, it requires from the State party both abstention (i.e., non-interference with the exercise
of cultural practices and with access to cultural goods and services) and positive action
(ensuring preconditions for participation, facilitation and promotion of cultural life, and access to
and preservation of cultural goods).

Cultural scope. “The Committee considers that culture, for the purpose of implementing
article 15 (1) (a), encompasses, inter alia, ways of life, language, oral and written literature,
music and song, non-verbal communication, religion or belief systems, rites and ceremonies,
sport and games, methods of production or technology, natural and man-made environments,
food, clothing and shelter and the arts, customs and traditions through which individuals, groups
of individuals and communities express their humanity and the meaning they give to their
existence, and build their world view representing their encounter with the external forces
affecting their lives. Culture shapes and mirrors the values of well-being and the economic,
social and political life of individuals, groups of individuals and communities.

Participation in the cultural life, scope. “The terms ‘to participate’ and ‘to take part’
have the same meaning and are used interchangeably in other international and regional
instruments. There are, among others, three interrelated main components of the right to
participate or take part in cultural life: (a) participation in, (b) access to, (c) contribution to
cultural life.”