SUBJECT: HUMAN RIGHTS LAW

(Lesson for December 1-15, 2021)

Chapter 5

SOLIDARITY/COLLECTIVE RIGHTS
(THIRD GENERATION OF RIGHTS)

PEACE, DEVELOPMENT, ENVIRONMENT

Right to peace belongs to the category of solidarity/collective rights. It is

universally recognized that peoples of the earth have a sacred right to peace and that
the preservation of the right of the peoples to peace and the promotion of its
implementation constitute a fundamental obligation of each State. (Declaration of the
right of Peoples to Peace, 1984)

Conflicts of an international character and non-international character have

resulted in millions of casualties and have caused untold sufferings to peoples of the
world. Although the number of conflicts of an international character has declined
since World War II, it is estimated that conflicts of an international character, internal
conflicts and tyrannical regime victimization during the course of the 20th century
have resulted in more than 170 million deaths (Bassiouni, 1996, p. 322).

International instruments related to peace include the UN Declaration on

Principles of International Law concerning friendly relations and cooperation among
States, UN general assembly Resolution 33/73 Declaration on the preparation of
societies for Life in Peace (1978), Declaration on the rights of Peoples to Peace of
1984, UNGA Resolution 45/14 Implementation of the Right of peoples to Peace
(1990).

Right to development is another example of a solidarity/collective right.

Development is a comprehensive economic, social, cultural and political process aims
at the constant improvement of the well-being of the entire population and of all
individual participation (declaration on the Right to development, 1986). Amrtya Sen
defines it as a process of expanding the freedoms that people enjoy and requires the
removal of major sources of unfreedom like poverty, tyranny, poor economic
opportunities, systematic social deprivation, neglect of public facilities, intolerance or
overactivity of repressive States. Poverty embraces the spectrum of conditions where
freedoms are diminished and denied.

The right to development was proclaimed in the UN Declaration on the Right

to development (1986). It is also recognized in the African Charter on Human rights
and people’s rights and the Arab Charter on Human Rights. It is re-affirmed in
instruments like the 1992 Rio Declaration on environment and development, the 1993
Vienna Declaration and Programme of action, the Millenium declaration, the 2002
Monterey consensus, the 2005 World summit Outcome Document and the 2007
Declaration on the Rights of indigenous Peoples.
 The right to environment is seen today as an important right because of global
warming, climate change, the damaging effects of environmental pollution on human
beings, and the degradation, of the world’s environment that includes land, water, and
air. But the global recognition that human rights and environmental protection are
connected that a man has a fundamental right to an environment that permits a life of
dignity and well-being became explicit only in 1972 at the Stockholm conference.
This conference is considered an important starting point in developing environmental
law at the global and national levels.

Principle 1 of the Stockholm declaration linked environmental protection and

human rights by stating that,

“Man has the fundamental right to freedom, equality and adequate conditions
of life, in an environment of a quality that permits a life of dignity and well-being, and
he bears a solemn responsibility to protect and improve the environment for present
and future generations.”

Today, the right to environment is directly mentioned in the International

covenant on Economic, social and cultural rights in article 12 (2) which states that,
“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… (b) The improvement of all
aspects of environmental and industrial hygiene” (The right to a healthy environment
—Accessed on October 4, 2013).

Some treaties that contain environmental obligations for States include the
1972 World Heritage Convention, the 1985 Vienna Convention, the 1987 Montreal
protocol on substances that deplete the ozone layer, the 1989 Basel Convention on the
control of Transboundary Movements of Hazardous Wastes and their disposal, the
1992 Convention on Biological diversity.

WOMEN, CHILDREN, PERSONS WITH DISABILITIES,

INDIGENOUS PEOPLES

WOMEN:

Women, children, persons with disabilities and indigenous peoples are among the
world’s most vulnerable, disadvantaged and marginalized groups of people or sectors. They
have rights but these are violated.

Women, though they comprised one half of humanity, face persistent and widespread
denial of their basic rights. This denial restricts their choices, increase their vulnerability to
violence and make it difficult for them to obtain justice.

Examples of these denials include:

1. over a half-million women continue to die each year from pregnancy and
childbirth-related causes.
 2. Rates of HIV infection among women are rapidly increasing partly because of
their economic and social vulnerability;

3. Gender-based violence kills and disables as many women between the ages of 15-
44 as cancer;

4. Women are twice as likely s men to be illiterate;

5. Women still earn less than men even for similar kinds of work;

6. Child marriages

7. And many others.

The core human rights instruments that pertain to women and their rights are:

a. The Declaration on the Elimination of Discrimination Against Women

b. Convention on the Elimination of all Forms of Discrimination against women

c. Convention on the political rights of women

d. Declaration on the Protection of Women and children in Emergency and armed

Conflict

CHILDREN:

Although they are the world’s future, children across the globe are denied their rights.
They are exploited, abused, maltreated, deprived of education, sold, subjected to cruel
methods of punishment and discriminated against. These children are the:

1. street children,

2. child workers,

3. child brides,

4. child combatants,

5. child abductees,

6. child offenders living lives without parole,

7. child refugee,

8. children without education, and

9. Child prostitutes
 Children as human beings have rights and because of their vulnerability are in need if
special care, attention and protection. The full range of human rights that children should
enjoy is found in Convention on the Rights of a Child, the first legally binding international
instrument on children’s rights. This Convention enumerates three basic rights that children
everywhere should have:

1. the right to survival;

2. the right to develop to the fullest;

3. to protection from harmful influences abuse and exploitation, and to

participate fully in family, cultural and social life.

To prevent the growing abuse and exploitation of children worldwide, the UN

General assembly in 2000 adopted two Optional Protocols to the Convention:

1. Optional Protocol on the involvement of Children in armed recruitment and

requires States to do everything they can to prevent children under the age of 18
from taking direct part in hostilities.

2. Optional Protocol on the sale of children, child prostitution, and child

pornography that draws special attention to the criminalization of serious
violations of human rights and emphasizes the need for public awareness and
international cooperation to combat them.

PERSONS WITH DISABILITIES (PWDs)

Article 1 of the UN Convention on Rights of Persons with Disabilities (2008) defines

persons with disabilities as those “who have long term physical, mental, intellectual or
sensory impairments, which in interaction with various barriers may hinder them full and
effective participation in society on an equal basis with others.”

Republic Act 7277 (Magna Carta for Disabled Persons) (1992), defines them as
“those suffering from restriction or different abilities, as a result of a mental, physical or
sensory impairment, to perform as activity in the manner or within the range considered
normal for a human being.”

The United Nations estimates that there are 50 million PWDs in the world today. Due
to war and destruction, unhealthy living conditions, or the absence of knowledge about
disability, its causes, prevention and treatment, the number increases every year. The World
Health Organization (WHO) estimates that 15th percent of the world’s population has a
disability and the prevalence is higher in post-conflict countries.

PWDs suffer from discrimination and often do not enjoy the same opportunities like
other people because of lack of access to essential services. These vulnerable groups that face
discrimination include:

1. women;

2. children;
 3. elders;

4. victims of torture;

5. refugees;

6. displaced persons;

7. immigrant workers

8. and the like

The international instruments and documents that pertain to PWDs are:

1. Declaration on the Rights of Mentally Retarded Persons (1971)

2. Declaration on the Rights of disabled Persons (1975)

3. Declaration on the Rights of Deaf-Blind Persons (1975)

4. Convention No. 59 concerning Vocational Rehabilitation and Employment

(Disabled Persons 1983)

5. Principles for the Protection of Persons with Mental Illnesses and the
Improvement of Healthcare (1991)

6. Standard Rule on the Equalization of Opportunities for Persons with Disabilities

(1993)

7. Beijing Declaration on the Rights of People with Disabilities (2000)

8. Convention on the Rights of Persons with Disabilities (2007)

INDIGENOUS PEOPLES:

- They are those that have historically belonged to a particular region or country
before its colonization or transformation into a nation, state, and may have
different – often unique- cultural, linguistic, traditional, and other
characteristics to those of the dominant culture of that region or State. (UN
Permanent Forums for Indigenous Peoples)

In 2010, there were approximately 370 million indigenous peoples spanning 70 countries
worldwide.

In the Philippines, indigenous peoples are estimated to comprise 10% of the population of
about 100 million. They generally live in geographically isolated areas with poor access to
basic social services and limited opportunities for mainstream economic activities. They lack
education and have inadequate political representation. But minerals, forests and rivers can be
found where they are and make them vulnerable to development aggression.
 The UN Declaration on the Rights of Indigenous Peoples (2007) recognizes that
indigenous peoples have suffered from historical injustices as result of, among others, their
colonization and dispossession of their lands, territories and resources preventing them from
exercising their right to development based on their needs and interests.

It also acknowledges the urgent need to respect and promote the inherent rights of
indigenous peoples which are derived from their political, economic, and social structures,
from their cultures, spiritual traditions, histories and philosophies.

The UN Declaration on the Rights of Indigenous Peoples is the most comprehensive

instrument detailing the rights of indigenous peoples in international law and policy,
containing minimum standards for the recognition, protection and promotion of these rights.

These rights include:

1. Right to self determination

2. Rights to land, territories, and resources

3. Right to health, education, employment, housing, sanitation, social security, and an

adequate standard of living

4. Right not to be subjected to assimilation or destruction of their culture

5. Right to practice and revitalize their cultural traditions and customs, etc.
 Chapter 6

REMEDIES AND PROCEDURES FOR RESPONDING

TO HUMAN RIGHTS VIOLATIONS AND HUMAN RIGHTS ABUSES

HUMAN RIGHTS VIOLATIONS:

- These are the acts committed by or at the instigation of or with the consent of a public
official or other person acting in an official capacity contrary to human rights law,
causing bodily or mental pain or suffering or death. They occur when State actors
abuse or deny basic human rights.

- R.A. 10368 otherwise known as, “The Human Rights Reparation and Recognition act
of 2013” defines human rights violation as act or omission committed during the
period from September 21, 1972 to February 25, 1986 by persons acting in an official
capacity and/or agents of the State and includes any illegal search, arrest or detention,
any affliction of physical injury, any enforced or involuntary disappearance, force or
intimidation causing the involuntary exile of a person from the Philippines, any act or
force, intimidation or deceit causing unjust or illegal takeover of a business, etc.

- Traditionally, when non-State actors (rebels, insurgents, non-governmental entities)

commit these transgressions or violations of human rights, their actions are called
crimes. Today, they are also called human rights violations.

- In the Comprehensive Agreement on Respect for Human Rights and Respect for
International Humanitarian Law, signed by the Government Peace Panel sand the
CPP/NPA/NDF Peace Panel on March 16, 1998 violations committed by rebels are
called human rights abuses.

REMEDIES:

- Rights and remedies are inseparable. For rights to be fully enjoyed and for rights to be
zxamply protected from harm, injury, and assault, originating from State and non-
State actors, remedies must be in place and readily available anytime anywhere.

- There are domestic remedies and non-domestic remedies that are found in
Constitutions, statutes and international instruments. As violations occur and become
intense, remedies are invented to cope up with indignities and abuses.

DOMESTIC REMEDIES:

Domestic remedies may take the form of civil remedied, criminal remedies and
administrative remedies:

1. A human rights victim can file civil action for damages in the appropriate trial
judges under article 32 of the Civil Code.

- This may be proved only by a preponderance of evidence. Moral damages, exemplary

damages
- Civil sanctions as an offshoot of a civil remedy availed of by a human rights victim is
acknowledge and affirmed by Section 12 (4), article 3 Bill of Rights of the 1987
Constitution, by section 21 of the Supreme Court’s A.M. No. 07-9-12-SC (the rule of
the Writ of Amparo), Section 20 of the Supreme Court’s A.M. No. 08-1-16-SC (The
Rule of the Writ of habeas Data), and Section 1 Rule 10 of the Supreme Court’s A.M.
No. 09-6-8-SC (The Rules of procedures for Environmental Cases).

2. The human rights victim may opt to file a complaint with the Commission of
Human Rights whose task is solely fact-finding investigation. After investigation,
the prosecution will be handled by the Department of Justice until the case is
resolved by the court. The complaint can be filed for specific crimes relating to
categories of human rights violations like crimes violating the right of the people
to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures.

Examples:

a. Article 124 of the Revised Penal Code (RPC) Arbitrary Detention

b. Article 269 Unlawful arrest

c. Article 125 Delay in the delivery of detained persons

d. Article 128 Violation of domicile

e. Article 129 act of maliciously obtaining search warrant and abuse in the
service of warrants

f. Article 130 Searching domicile without witnesses

g. Article 131 Prohibition, Interruption, and Dissolution of peaceful meetings

h. Article 153 Tumults and other disturbances of public order

i. Article 132 Interruption of religious worship

j. Article 133 Offending the religious feelings

k. Article 272 Slavery

l. Article 273 Retaining a minor in his service against the former’s will

m. Article 274 compelling another to work for him against his will as a household
servant or farm laborer

n. Article 246 Parricide

 o. Article 249 Homicide

p. Article 255 Infanticide

q. Article 256 Intentional abortion

r. Article 262 mutilation

s. Article 263 Serious Physical injuries

t. Article 265 Less serious Physical injuries

u. Article 235 Maltreatment of prisoners

v. Articles 262-266 offender is not vested with custody of prisoners but commits
only physical injuries

w. Article 127 Expulsion

x. Article 268 Grave coercion

y. And Many more.

3. Since human rights violations are crimes under the Revised Penal Code, a human
rights victim can file a criminal complaint directly to the Office of the Prosecutor.

ADMINISTRATIVE REMEDIES:
Under the Revised Administrative Code, the Heads of Bureaus or office has the
authority to discipline his employees in line with Sections 30 and 36 of Chapter 6, Book IV,
Revised administrative Code of 1987.

INTERNATIONAL REMEDIES:

The International Remedies for human rights violations and human rights abuses are
based on treaties and non-treaty procedures.

Based on TREATIES, the mechanisms for the enforcement of human rights are the
reporting requirements to ensure State compliance with treaty obligations, the investigation of
communications to determine breaches of treaty obligations, and the investigation,
prosecution, and trial of human rights violators under the Rome Statute of the International
Criminal Court.

THE REPORTING REQUIREMENT:

State Parties are generally required by the treaties to periodically submit reports to the
Secretary general of the United Nations or to the monitoring body created by the treaty.
These reports give a comprehensive account of the measures adopted by the State Parties to
apply the provisions of the UN Conventions. They also contain an elaboration on the progress
that the State Parties have achieved to fulfill their obligations under the Covenant. Concerned
as well as the factors and difficulties that may retard their progress.

INTERNATIONAL CRIMINAL COURT (ICC):

The Rome Statute establishing the International Criminal Court (ICC) is considered one of
the most ambitious international legal initiatives in the history of modern law and the ICC as
the important new institution for human rights in the new century. The ICC deals with and
has the power to investigate, prosecute, and convict individuals.

The ICC exercises international jurisdiction over criminals. This addresses the problem of
preventing human rights violators and criminals who may have escaped from the national
jurisdiction where they committed serious crimes, namely: genocide, crimes against
humanity, war crime and aggression.

There are three ways by which an investigation by the ICC may be initiated:

1. A State Party may refer as “situation” to the Prosecutor, where it appears that one or
more crimes within the jurisdiction of the Court was committed.

2. The Security Council may refer a “situation” to the Prosecutor.

3. The Prosecutor may initiate investigation motu proprio or on her own, on the basis of
information received from any reliable source as to the commission of the crimes. The
prosecutor then applies for a warrant of arrest with the Court’s Pre-trial Chamber for
the arrest and surrender of the suspect. If approved, a warrant of arrest shall issue.

SPECIAL COUNTRY RAPPORTEURS AND THEMATIC RAPPORTEURS:

The Commission on Human rights has developed 2 types of instrument to supervise the
implementation of Human Rights around the world pursuant to ECOSOC Resolution 1235:

1. It has appointed specific country rapporteurs and working groups mandated to report
annually to the Commission on the development of Human rights situation in the
country for which they have been appointed.

2. Thematic rapporteurs or working groups are formed relative to the issues on

involuntary disappearances, torture, extra-judicial executions, arbitrary detention,
freedom of expression, xenophobia and racism, and violence against women. They
examine relevant information from all reliable sources about violations of human
rights wherever they occur in the world. They may also visit countries with the
consent of the government concerned. They submit their annual report to the
Commission and these annual reports survey the information received by the special
thematic rapporteurs, the replies by governments and their lack, the actions taken by
the special rapporteurs and any general comments or recommendations the special
rapporteurs may wish to submit.