in 1991, for those memorable and hulba-hi -hinam moments wh ve would go to battlefields and relocation sites in remote parts of Region VII to conduct interviews and document human rights cases; And of course my family, my co-workers and bi ; ; my co-worl osses with Office of the Provincial Prosecutor of Cebu and the Department of Justice, for the inspiration and support. My sincere thanks and appreciation. pope ‘TABLE OF CONTENTS CHAPTER I INTRODUCTION Rationale .. Scope as a subject Philippine contribution to International Human Rights Law .... Srmen Philippine Contribution to UDHR Philippine participation on core human rights treaties On women’s rights: “mother” of CEDAW is a Filipina .. : Membership to the International Criminal Court ‘Human Rights laws of the Philippines Construction of human rights instruments. CHAPTER II HUMAN RIGHTS, ITS ATTRIBUTES, ORIGIN AND THE ‘THREE “GENERATIONS” Meaning of Human Rights Attributes of Human Rights Origin of Human Rights .. ‘The Three (3) “Generations” of ‘Human Rights 10 u u 13,A. CHAPTER UI STATE RESPONSIBILITY Why the State? ‘The State as guarantor of human rights Human Rights and the Rule of Law Violations by “State actors” Violations by private individuals... ‘State liability for human rights violations committed by “non-State actors” International State Responsibility .... International State responsibility for internationally wrongful acts Derivative State responsibility for complicity Philippine Cases on State Responsibility Prohibition on unreasonable searches and seizures is a restraint against the State, and not against private individuals Justiciability of the solidary right toa healthy environment .. Writ of Kalikasan Command Responsibility The Yamashita Standard CHAPTER IV 15 15 16 7 18 18 18 19 21 22 23 25 25 25 SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW International Agreements... International Customary Law . Jus cogens .. Obligatio Erga omnes 28 29 30 31 Universal Jurisdiction Acti Popularis General Principles of Law .. ‘The Incorporation Clause ... Judicial Decisions and Teachings .. Teachings of jurists and publicists The International Criminal Tribunal of Afghanistan eet ‘The Kuala Lumpur War Crimes Commission CHAPTER V ‘THE INTERNATIONAL BILL OF RIGHTS, ‘The Universal Declaration of Human Rights (UDHR) International Convention on Civil and Political Rights (ICCPR) .. International Convention on Economic, Social and Cultural Rights (ICESCR) é Rights and Freedoms under the International Bill of Rights a) © Bquality in dignity and rights ») Right to life, liberty and security . © Right against slavery Trafficking in persons @ Right against torture ©) Right to equal protection .. f) Right to effective judicial remedy Access to justice ... Judicial writs 32 33 33 34 38 39 40 41 42 43 43 47 50 61 52 53 548) Right to be presumed innocent 56 A. 2. International Application of THRL. 81 1») Right against ex post facto law and Signature = 81 ill of attainder . i of attainder *9 Exchange of letters or notes .. 82 i) Right to privacy. w 60 i Act of formal confirmation sn... 82 Freedom of movement 61 iS eee Reservation un 82 aes i Interpretative declaration 83. Right toa nationality .. 63 : ‘i Modification 83 “Stateless children” in Sabah; Malaysia 64 ) Right to “lend « fom Denuneiation 83 m) Right to marry anc ; a 8 tee ee! st B. Enforcement Mechanisms 83 areca ace race, B.1, Against Individuals .. 84 ° oe of thought, conscience and religion... 66 ee mn edo. ice or mani i P)_ Freedom to practice or manifest religious - ee a Sahin versus Turkey a B.2. Against States 85 @) Freedom of expression 70 ae eee eet 1) Freedom of assembly and association 2 orient 85 5) Right to take part in government ... R 8. Retorsion . 85 ©) Right to social sceurity rr 4. Countermeasures 85 uw) Right to work . a 5. Military Intervention 86 | ¥) Right to rest and leisure .. : 75 C. Restrictions and Limitations... 86 i w) Right to adequate standard of living 5 cece bad | x) Right to education : 6 | y) Right to enjoy economic, social and CHAPTER VIL | cultural Hie = 7 |ONITORING SYSTEMS . Monn | 2) Right of self-determination 7 A - | ee ee 7” . Charter-based Mechanisms 88 | 1. Complaints Procedure: The 1503 Procedure... 88 2. State Reports 89 | eee 3. Special Procedures e 89 | APPLICATION, ENFORCEMENT AND LIMITATIONS Special Rapporteurs c+... seneennrennees — 89 | A. 1. Domestic Application of IHRL 80 4. NGOs and NHRIs .. 905. Universal Periodic Review .. = 90 B. Treaty-based- Mechanisms .... 91 Human Rights Committee 93 CHAPTER VIII THE UNITED NATIONS A. Purposes of the UN wan 95 B. Principal Organs of the UN ... 95 C. Offices, Agencies, Programmes and Subsidiary Bodies in the UN wrecncnennnnnnnnvn 96 Human Rights Council . 97 Specialized programmes and funds 97 Specialized agencies, commissions and bodies uuu 97 Offices under the Secretariat 98 CHAPTER IX MILLENNIUM DEVELOPMENT GOALS ... 99 CHAPTER X PHILIPPINE LAWS PROMOTING THE RIGHTS OF THE CHILD A. Rights of the child ...... 103 Philippine laws and regulations concerning children 105 A. 1, RA 9344 — The Juvenile Justice and Welfare Act 105 Minors exempt from criminal cablity eecesetnnnees 105 ‘The age of conditional criminal liability Restorative justice Challenges in the implementation of RA 9344 ‘A. 2. RA 7610 —The Anti-Child Abuse Law A. 8, RA 9321 ~ Elimination of the Worst Forms of Child Labor ‘A. 4, RA 9975 — Anti-Child Pornography ‘A. 5, RA 1064 ~ Expanded Anti-Trafficking in Persons, Especially Women and Children . CHAPTER XI ‘THE PROTECTION OF THE RIGHTS OF WOMEN ‘The Rights of Women Convention on the Elimination of Discrimination Against Women (CEDAW)... ‘A. 1. RA 9262 — Anti-Violence Against Women and ‘Their Children Act of 2004 .. : The Magna Carta of Women... A. 2, RA 8972 - The “Solo Parents Welfare Act of 2000" ... LGBT (Lesbian, Gay, Bisexual and Transgender RIGRES ooo CHAPTER XII ‘THE RIGHTS OF MIGRANT WORKERS International Convention on the Protection of the Rights of All Migrant Workers and Members of ‘Their Families ...... = 106 106 107 108 109 ut 112 4 114 115 116 uy 119 120CHAPTER XIII ‘THE RIGHTS OF DISABLED PERSONS Convention on the Rights of Persons With Disabilities... 124 CHAPTER XIV ‘THE RIGHT AGAINST TORTURE A. Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment (CAT)... : 129 B. RA9745 —The Anti-Torture Act of 2009 .... 130 CHAPTER XV ‘THE RIGHT AGAINST ENFORCED DISAPPEARANCES A. International Convention for the Protection of All Persons from Enforced Disappearance .. 131 CHAPTER XVI THE INTERNATIONAL CRIMINAL COURT A. ‘The International Criminal Court (ICC) 135, Organs of the ICC 136 Responsibility of commanders and other superiors... 187 Application of the “Command Responsibility” doctrine to civilians .. . 138 CHAPTER XVII INTERNATIONAL HUMANITARIAN LAW (IHL) A. Definition ... 139 HeasBpaB ‘Two (2) components of IHL .. Application of IHL. Origin of THL .. Geneva Conventions ‘The Hague Conventions Fundamental Rules of [HL THL versus JHRL Definition of “protected persons” International Committee of the Red Cross (ICRC) and the Red Crescent Society Current Issues .. Environmental degradation and climate change International migration .. Urban Violence Emergent and recurrent diseases International disaster relief and recovery assistance .. 139 139 140 140 141 142 142 143 144 145 146 146 146 147 147APPENDIX A— APPENDIX B- APPENDIX C - APPENDIX D- APPENDIX E -~ APPENDIX F - APPENDIX G— APPENDIX H- APPENDIX I - BIBLIOGRAPHY. APPENDICES Universal Declaration of Human Rights... International Covenant on Civil and Political Rights... International Convention on Economic, Social and Cultural Rights. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)... Convention on the Rights of the Child (CRO) . Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT). International Convention on the Protection of the Rights of All Migrant Workers and ‘Members of their Families International Conventian far the Protection of All Persons from Enforced Disappearance. Rome Statute of the International Criminal Court. 160 156 116 185 198 220 234 272 291 378 CHAPTER I INTRODUCTION I. A. RATIONALE ‘The United Nations General Assembly (UNGA) proclaimed the commencement of the World Programme for Human Rights Education on January 1, 2005, following the UN Decade for Human Rights Education in 1995-2004. Pursuant to that, the Commission on Human Rights (CHR) of the Philippines issued Resolution Nos. A2007-028 and A2007- 029 urging the Commission on Higher Education and law schools in the Philippines to offer Human Rights in the Philippine Law curriculum, Subsequently, on December 19, 2011, the United Nations General Assembly (UNGA) adopted the United Nations Declaration on Human Rights Education and Training. Article 3 of the declaration states that Haman Rights education and training “concerns all ages” and “all levels” including pre- school, primary, secondary and higher education. ‘More than sixty (60) years since the adoption of the Universal Declaration of Human Rights and the ratification of several human rights treaties by the Philippines, as well as the consequent enactment of domestic human rights legislations along the way, the appropriate and formal education and training on human rights laws in the country are still slacking. There are still law schools that do not offer Human Rights Law as a separate subject, and majority of university courses do not include the subject in their curricula, As a result, we have professionals who are only semi- literate in human rights. Many do not have an inkling of what the Universal Declaration of Human Rights is all about. Millions of Filipinos are not aware of the international human rights conventions that were ratified by the Philippines by virtue of which obligations arise. Whenever we get some international attention for human rights abuses, people tend to think that it is just those “bully superpowers” interfering in our affairs again. Many people in the government do not quite comprehend the concept of “State Responsibility.” Whenever these government people are taken to 12 [INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS task for failure to protéct hurhan rights, they tend to think that it’s just those loudmouthed protesters and “communists” complaining again. This lack of or insufficient education and training on human rights laws has spawned a lot ‘of unnecessary hatred and even violence in the country, and itis about time that the United Nations declaration be faithfully heeded. Itis interesting to note, though, that the Philippines is usually among the first countries to ratify important human rights treaties, and was even one of the members of the first United Nations Human Rights Commission responsible for the drafting of the Universal Declaration of Human Rights. So, while the country’s international participation has always been active, a large part of the population at home still needs to be educated in order for them to know, understand, and respect human rights. Without a doubt, the most effective tool against human rights abuse is education: it makes a person less likely to commit human rights violations, and less likely to become a victim either. As stated in Article 2 of the UN Declaration on Human Rights Education and Training, “Human rights education and training comprises all educational, training, information, awareness-raising and learning activities aimed at promoting universal respect for and observance of all human rights and fundamental freedoms and thus contributing to, inter alia, the prevention of human rights violations and abuses by providing persons with knowledge, skills and understanding and developing their attitudes and behaviours, to empower them to contribute to the building and promotion of a universal culture of human rights.” ‘The aim of this book is to introduce readers to the general principles of human rights laws, the important human rights documents, the core human rights treaties, and the strategies and mechanisms for the protection of human rights. Both international and Philippine sources of human rights law are treatised in this book. IB, SCOPE AS A SUBJECT In the Philippine legal education curriculum, International Human Rights Law is part of Political Law. The Bar Examinations on Political Law in the recent past asked quite a number of questions on this particular field of law. CHAPTER 8 INTRODUCTION, ‘As an independent subject in law school, it usually covers the general principles of Human Rights Law, the United Nations System, the core human rights treaties ard their application and monitoring mechanisms, International Humanitarian Law, and the international criminal tribunals. In many aspects, the subject intertwines with Criminal Law, Labor Law, and Tort. ‘As part of the International Law course, emphasis is given to the United Nations system and the International Bill of Rights. Other core human rights treaties are sometimes sidelined in this structure. ‘The thrust of the United Nations now is to make available at all levels the proper education and training on human rights law based on the principles of the Universal Declaration on Human Rights and other human rights documents. The UN Declaration on Human Rights Education and Training aims to raise “awareness, understanding and acceptance of universal human rights standards and principles, as well as guarantees at the international, regional and national levels for the protection of human rights and fundamental freedoms.” LC. PHILIPPINE CONTRIBUTION TO INTERNATIONAL HUMAN RIGHTS LAW Philippine contribution to UDHR ‘The Philippines was a member of the first United Nations ‘Commission on Human Rights, which was composed of only sixteen (26) countries. From 1946 to 1948, this Commission was responsible for the drafting of the Universal Declaration of Human Rights (UDHR), the first document to embody the aspirations of states for world community based on the recognition and respect of human rights. The Philippines was also one of the original forty-eight (48) ‘countries that adopted UDHR on December 10, 1948, Philippine participation on core human rights treaties Both the International Convention cn Economic, Social and Cultural Rights (ICESCR), and the Intemational Convention on- INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS —_—_— Civil and Political Rights (ICCPR) were signed by the Philippines on December 19, 1966, long before they entered into force. However, while the ICESCR was ratified by the Philippines on June 7, 1974, it ‘was not until October 23, 1986 whien the ICCPR was ratified. It must be remembered that Martial Law was in force in the country from 1973 to 1983. It was only in 1986 when President Ferdinand Marcos left the Philippines, with President Corazon C. Aquino taking over the presidency, ‘The Philippines was also among the first signers of the International Convention Against Racial Discrimination. To date, the country has ratified all core human rights treaties, except one, ie, the International Convention for the Protection of All Persons from Enforced Disappearance, which entered into force in December 2010. It is interesting to note that the Philippines usually signs and ratifies human rights treaties without reservations or comments. On women’s rights: the “mother” of CEDAW is a Fil One of the core human rights treaties that could definitely make this world a better place to live in, and benefit more than half the world’s population, is the Convention on the Elimination of Discrimination Against Women (CEDAW). Unknown to many, this is the brainchild of a Filipina, Leticia Ramos-Shahani, a former diplomat and senator. She is a genuine trailblazer for women’s rights, and she almost singlehandedly placed the Philippines in the international map on women rights crusade. In 1974 she became the chairperson of the UN Commission on the Status of Women, which organized the First World Conference on Women, in Mexico City. Shahani is credited for the preparation and submission of the complete draft of the Convention on the Elimination of Discrimination Against Women, even without the clearance from the Philippine government. This author would like to refer to her as the “mother of CEDAW.” Another women’s rights instrument that she pushed for was “The Forward-Looking Strategies for the Advancement of Women” (FLS). As the Secretary-General for the Nairobi Conference in 1985, she successfully engineered the adoption of the FLS despite the initial controversy it generated. CHAPTER 5 INTRODUCTION Membership to the International Criminal Court Although a latecomer to the International Criminal Court, having become a member only on November 1, 2011, the Philippines lost no time in actively getting involved in the court’s activities. ‘The following month, Miriam Defensor-Santiago, a sitting senator, former jurist and International Law expert, was elected as judge of the court. LD. HUMAN RIGHTS LAWS OF THE PHILIPPINES The Philippines had been conscientious in complying with its obligations under international treaties in regard to the enactment of relevant municipal laws designed to ensure domestic compliance. ‘Many of these domestic laws adopt the language and wording used in the international conventions, if only to emphasize the country’s commitment to follow international standards. The sources of Human Rights jurisprudence in the Philippines are the Philippine Constitution, legislative enactments, Supreme Court rules, rulings and orders, and executive issuances. All the three (3) departments of government are actively involved in the policymaking aspect of human rights protection. However, the full execution and widespread implementation of such policies still leave much to be desired. Philippine jurisprudence on human rights includes the following: 1, The Philippine Constitution — Contains the Bill of Rights; lays down the bases for all the civil, political, economic, social and cultural rights of persons. 2. Rights of the child 2.1, RA 9344 — Juvenile Justice and Welfare Act of 2006 2.2. RA 7610 — Law Agains: Child Abuse 2.3. RA 9231 — Elimination of the Worst Forms of Child Labor 2.4. RA 9775 — Law Agains: Child PornographyINTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS, CHAPTER I syTRoDUCTION 2.5. RA 8044 — Youth in Natioi:Building Act 6.3, RA 9442 — Law Amending the Magna Carta 2.6, RA 6972 — Act Establishing Day Care Center in ee Every Barangay, 6.4, RA 10070 — Act requiring the creation of Sn oe en en ere Persons with Disability Affairs Office (PDAO) by hee local government units Rights of women ae 65. DILG MC 2009-37 — On issuance of 3.1. RA 9262 — Anti-Violence Against Women and identification cards and purchase booklets for PWDs ‘Their Children . . 6.6. DILG MC 2009-28 — On community-based 3.2. RA 10864 — The Expanded Anti-Trafficking in programs for children with disability Persons Act of 2012 arr Ades Ne. ty Diretine dapastnente im. No, 35 — Directing departments, bureaus, amass paces uae agencies and educational institutions to conduct 3.4, RA 7877 — Law Against Sexual Harassment activities during the annual observance of the Ryne es National Disability Prevention and Rebabiitation 3.6, PD 633, as amended — Creating the National Commission on the Role of Filipino Women: eee eee 7A. PD 442, as amended — Labor Code of the Se one Philippines, incorporating the New Labor Relations a ‘Law and the Prohibition on Discrimination Against 3.8, Pres, Proc. 1172 — Campaign to End Violence Women Agninat Women 7.2, RA 8024 — Migrant Workers Act 3.9, RA 6955 — Act Against Mail Order Brides 73. RA 10022 — Law amending the Migrant 4. Rights of Lesbian, Gay, Bisexual and Transgender Workers Act eae 7.4, RA 8187 ~ Paternity Leave Act __ 41, Ang Ladlad vs, COMELEG, April 8, 2010 a oes Berita 8.1. RA 8282, amending RA 1161 — The Social 5.1. RA 7432 — Senior Citizen’s Act Security Law 5.2. RA 7876 — Senior Citizen Center Act 8.2, RA 8291 — The Government Service Insurance 5.3. RA 9994 — Expanded Senior Citizen Act System Act 6. Rights of Disabled Persons ees 6.1. BP 344 — An Act to Enable The Mobility of Disabled Persons 6.2. RA 7277 — Magna Carta of Disabled Persons 9.1, RA 7876 — National Health Insurance Act 9.2. Pres. Proc. 46 — Child and Mother Immunization Project[INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS 10. Right to a healthy’environment 10.1. Oposa vs. Factoran, July 30, 1993 11. Right to privacy 11.1. SC A.M. No. 08-1-16-SC — The Rule on Habeas Data 11.2. RA 9995 —: Anti-Photo and Video Voyeurism, Act 11.3, RA 10173 — Data Privacy Act of 2012 12, Right to life, liberty and security 12.1, TheAnti-Enforced or Involuntary Disappearance Act of 2012 12.2, RA 9745 — Anti-Torture Act 12.3. The Rule on the Writ of Amparo 12.4.Adm, Order 181 — Investigation and Prosecution of Political and Media Killings 12.6. Adm. Order 197 — Enforced Disappearances and Killings 18. Remedies of unjustly arrested and/or detained persons 13.1, RA 7309 — Law Creating the Board of Claims 13.2. Rule 102, Rules of Court — The Rule on Habeas Corpus 13.3. Rule 9439 — Law Against Hospital Detention 13.4, RA 10368 — Human Rights Victims Reparation and Recognition Act of 2013 14. Rights of accused, victims, and witnesses of crimes 14.1. RA 8505 — Rape Victims Assistance Act 14.2. RA 6981 — Witness Protection Act 14.3. RA 9999 — Free Legal Assistance Act 14.4, RA 9346 — Law Abolishing Death Penalty 14.5. Bill of Rights, Philippine Constitution HAPTER ° INTRODUCTION 14.6, Rule 115, Revised Rules of Court 15. Other human rights violations penalized 15.1, Act 3815 — Revised Penal Code of the Philippines 16. Human Rights mechanisms 16.1, EO 163 — Creating the Commission on Human Rights 162.RA 9201 — National Human Rights Consciousness Week 16.3. PD 448 — On Delivery of Social Services. I.E, CONSTRUCTION OF HUMAN RIGHTS INSTRUMENTS ‘Human Rights law is dynamic, and continues to evolve. The instruments embodying human rights tresties, laws and principles are “living” instruments that must be inierpreted in the light of circumstances surrounding and attendant to every case. They cannot be tied down to obsolete practices and beliefs but have to be made adaptable to current societal landscapes if they are to have any relevance at all, When a human rights law has the effect of modifying another law without repealing the latter, an attempt at harmonizing them has to be made. For instance, the law against trafficking in persons makes clear that trafficked prostitutes are to be considered victims and are not to be prosecuted. However, the trafficking law does not operate to repeal Article 202 of the Revised Penal Code on prostitution absolutely. Thus, this law punishing women for prostitution still remains, it being one of the few remaining discriminatory laws against women in this country. Where two (2) apparently inconsistent laws ean stand independently, they have to be interpreted in favor of the validity of both. Thus, a prostitute who is not trafficked, or a freelance commercial sex worker, may still be held liable for prostitution under the Revised Penal Code. (The part of Article 202 on Vagrancy was finally repealed in April 2012.)CHAPTER Il HUMAN RIGHTS, ITS ATTRIBUTES, ORIGIN AND THE THREE “GENERATIONS” I. A. MEANING OF HUMAN RIGHTS The Preamble of the Universal Declaration of Human Rights (ODHR) mentions the “inherent dignity and of the equal and inalienable rights of all members of the human family.” Human rights are not granted by the State, nor stemmed from citizenship ina country. Human rights are rights which necessarily spring from being a member of the human species. Many in the Philippines think that human rights obligations are purely governmental, or that the scope of the right is limited to political beliefs, or that human rights pertain to certain economic or social rights of a particular exclusive group of people. Often, this myopic view gets abused for political agenda. Thus we see human rights violations committed by state-agents who are supposed to protect human rights, just as we see violations committed even by elements calling themselves “human rights advocates.” We see many armed conflicts fought in the name of freedom and human rights, and yet we see the innocent and the peace-loving being deprived of their rights and freedoms because of these so-called “freedom” wars. Without a more open-minded and comprehensive understanding of human rights, there will always be the possibility to address one aspect but at the same time violate another. Human rights law is a broad field, and includes not only the relationship between men and government, or the civil and political rights of the people, but extends as well to their economic, social and cultural rights, to the right to development and a peaceful and clean environment where they could develop in all facets as human beings. It covers education, employment, health, family, and marriage, among many others. More importantly, it covers every individual and does not operate to protect exclusively only a particular group of people. Both private individuals and public officers have the duty to respect each other's rights. 10 CHAPTER u HUMAN RIGHTS ITS ATTRIBUTES, ORIGIN AND THE TEREE "GEN! Il, B, ATTRIBUTES OF HUMAN RIGHTS Human Rights have the following attributes. 1) Universal. — Human rights apply to all humans, regardless of race, culture, age, sex, or creed, 2) Inherent, — All human beings are born with these rrights; these are not conferred by any authority. 3) Equal. — Every human being has the same set of rights as any other. Artide 1 of the Universal Declaration of Human Rights states that, “All human beings are born free and equal in dignity and rights. 4) Inalienable, — Human rights cannot be taken from or given away by any human. While its exercise may be regulated or restricted by law, its substance cannot be taken away. - wt obcole ; eyo b enicdas nite ond I. C. ORIGIN OF HUMAN RIGHTS roslotions “Human Rights” is a relatively modern concept that gained considerable attention only after World War II. Although the rights ofmen are as old as man himself, the coneept of human rights and their protection by the State were unheard of then. Society needed a government for order and survival. However, in the past, most government systems were despotic in nature, the Philippines included. We had the datus and the rajahs before the Spanish came to colonize us and place the nation under the control of Spain. Despotie systems had rulers with vast powers, exercising the roles of lawmaker, judge, landowner, people-owner, high priest, and in some imperial systems, even the son of God or a supreme deity. Social order centered on the ruler and the elite, who for some reasons, tend to develop hubris syndrome. We read of kings who ordered the killing of subjects without hearing their side, even for the flimsiest reasons, in very brutal ways, such as burning, mutilation, and feeding to wild animals, Subjects rendered service without compensation all their lives for the enrichment of the royalty and nobody cared how they managed to survive in their daily affairs. The peasantry was not the only class deprived of theira INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS human rights. History tells us that membefé of the royalty also suffered when they fell from the raler’s grace. Although some of the religions started off as refuge from dictatorial regimes, some of them evolved into dictatorships themselves. When some religions became very powerful, some of them became selfish, controlling, manipulative and even brutal. In the medieval period, religion was sometimes used as an instrument of imperialism, to conquer not only lands but also the iinds of the people into submission. Several bloody crusades were fought in the name of religion, In Europe and Asia, there were religious officials who wielded so much power not only in their church, but also in government and in business. Back then, the members of the working class were chattels who were not entitled to anything that their sovereign did not want to give them. Human Rights protection for the peasantry was unheard of, freedom of expression was taken as heresy, and the monarchs and religious leaders were the absolute authority. In the late 1800's and the beginning of 1900's, science and education empowered more people and made them more critical. ‘The working class started to assert itself, and the elite began to treat workers better. The transition was a difficult time for both classes, and a lot of blood was shed to drive home the point. Consequently, more liberal rulers emerged, and more democratic governments developed. The monarchies became more people- oriented, and commoners began occupying important positions in government. The world started becoming more liberal in its outlook and respectful of the individual’s freedom to think and believe. Religions, on the other hand, started accepting schools of thought which otherwise would have been regarded as heresy and outrageous, In fact, many religious educational institutions could be credited for some of the early stages of human rights education. As the necessity for trading and mutual assistance among countries became inevitable, organized governments and economies started forging diplomatic relations. The League of Nations was born in the 1920's, and the concepts of sovereignty, independence, and interdependence were formalized among the members of this 13 CHAPTER I HUMAN RIGHTS, ITS ATTRIBUTES, ORIGIN AND THE THREE “GENERATIONS family of nations. Yet, at that time, human rights principles were not put in writing, except for the outlawing of slavery and giving assistance to the sick and the wounded in times of war. It was after the two (2) world wars when the issue of human rights took center stage. The destructive effects of the wars impelled leaders from different countries to come together and forge an alliance to maintain world order through the protection of human rights. On June 26, 1945, the Charter of the United Nations was adopted. On December 10, 1948, the United Nations General Assembly (UNGA) adopted the Universal Declaration of Human Rights, December 10 has since been observed as International ‘Human Rights Day. Other treaties and protocols were thenceforth entered into by states. To this day, there are ten (10) core human rights treaties. I. D. THREE (3)“GENERATIONS” OF HUMAN RIGHTS ‘The three (3) generations of human rights refer to the order in time when a particular set of rights began to develop and gain the recognition by states. The term “generation” does not mean that one set or group came after another set or group, or that the first “generation” ‘was rendered obsolete when the second “generation” emerged. The “generations” are not also stages of the rights, because the third generation is not a mere improvement of the second, nor the second a mere improvement of the first. Rather, the term “generation” refers to the eucceesion of periods when societies and governments hegan recognizing a set of rights, though not necessarily in the order of man's priority, for man’s first priority was more economic than political, such as the right to food, ete., a right recognized by humans long before governments and rulers came into being. 1. First generation human rights refer mostly to the political rights and civil liberties found in the International Covenant on Civil and Political Rights (ICCPR),such asthe prohibition against searches and seizures, interruption of peacefull meetings, or undue intervention to the freedom of expression. These are “negatiue” rights in the sense that they prohibit the doing of something. They are the “No one shall” rights.INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS Second generation hiiman rights ate “positive” rights that enjoin States to perform an act or do something for the enjoyment of these rights by the people. These are mostly economic, social, and cultural rights found in the International Convention on Economic, Social and Cultural Rights (ICESCR), such as the right to work, to education and to food. They are the “State shall” rights. Third generation human rights are newly emerging rights, such as the right to development, the right of the people to live in a clean environment, right to live in peace, ete. These are also known as solidarity rights. CHAPTER Ill STATE RESPONSIBILITY II. A. WHY THE STATE? We hear so much clamor for the observance of human rights, in the courts, the streets, and in media. The term human rights is, almost a byword to us; but how fully do we understand it? Many of us wonder why the term usually crops up only when the victim is a government critic. We often hear the gripe “Pag rebelde ang biktima, violation of human rights, pero pag pulis 0 sundalo ang pinatay, alright?” The State as guarantor of human rights ‘The State is not the giver of human rights, for these are inherent in all human beings. The role of the State in the social order is to see to it that members of society acknowledge its authority and that it governs the people properly. In turn, the State must recognize that the people have rights and freedoms that are inherent in them and cannot be taken away. With this recognition is the State's duty to guarantee the continued enjoyment by the people of their rights. In other words, in order to achieve an orderly society where there prevails a harmonious relationship between the ruler and the ruled, the ruled must bow to the authority of the ruler, and the ruler must respect the inherent rights and fundamental freedoms of its citizens. As guarantor of human rights, the State may be held accountable when people are deprived of their rights by its action or inaction. No such guarantee exists on the part of private entities and civilians, If a security guard at a shopping mall checks a customer's ag upon entrance, the customer cannot invoke the protection against warrantless and illegal searches, and sue the mall for violation of his/her human rights for the guard's act. The Supreme Court made a very instructive ruling on this in the case of People of the Philippines us. Andre Marti,} which will be discussed later. It does SGN, SEL, January 28, 1901. 1816 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS HAPTER I a ‘STATE RESPONSIBILITY not mean, however, that ptivate persons are ‘exempt from lability for human rights violations. They still are, although not directly within the sphere of our existing “human rights mechanisms,” but, under criminal law. Nonetheless, the Philippine ratification of the Rome Statute in November 2011 may subject Filipino individuals to international criminal liability for certain offenses. Human rights scholars also opine that corporations could be liable for human rights violations. For the meaningful enjoyment of human rights by everyone while maintaining the delicate balance of ensuring a peaceful and orderly society under a regime of the rule of law, the State may regulate and limit certain activities of its people. By virtue of the Police Power, Congress may pass laws to uphold and promote human rights as well as set parameters within which they can be enjoyed. Executive officials may implement programs to enhance the conditions of the people and enforce laws for the observance of those parameters, and the Supreme Court may issue orders and writs to protect human rights. In short, that “delicate balance” can only be achieved if the State promotes the respect for human rights, and members of society acknowledge that the enjoyment of certain rights is subject to the State's prudent and reasonable exercise of Police Power. Thus, the wisdom and application of the legal maxim in property law, “Sie utere tuo ut alienum non laedas” (“So use your own as not to injure another's property”). Human Rights and the Rule of Law In order for society to strike the delicate balance between the government's authority to rule and the people's entitlement to their inherent rights, a strict adherence to the Rule of Law must be observed. Under the Rule Of Law, “the law is preeminent and can serve as a check against abuse of power.”* This is opposed to Rule By Law, where the law serves “as a mere tool for a government that suppresses ina legalistic fashion.” ‘Bryan On The Rule of Law: History, ellis, Theory, Cambridge Univers Press (2008), ese Yaw professor Ui shugvang, ‘There is perhaps no better illustration of the contrast between the terms Rule Of Law and Rule By Law than this one by Professor Li Shuguang. The early concepts of Rule of Law included those which were enacted at the whim of princes and rulers for their subjects to obey. Aristotle considered as Rule of Law on’y that set of laws which was based on reason, and as Rule of Man that which was based on other considerations.‘ Many of these laws were not always just and fair. The “dura lex sed lex” maxim became more of a threat rather than a tenet whereby people can seek redress for grievances. Even now, the term Rule of Law has been so used and abused that it is slowly becoming a hollow concept. But the “Rule of Law argument” should not be confused with the use of procedural maneuvers which are allowed under certain rules or regulations. Dexterous juggling of procedural rules may sometimes give an illusion of legality to an act, but could in fact be “suppression in a legalistic fashion,”* the very thing that is anathema to the Rule of Law. This fishy Tine of argument actually anchors on rules rather than on law, and pertains to “rules” as a set of prescribed regulations, rather than to “rule” as the authority for good governance. Rules are not supposed to subvert the law, and the law must conform to constitutional limitations. Both must not be used as a shield to cover oppressive acts. The genuine concept of Rule of Law is and should be an ideal that promotes and respects human rights. Violations by “State actors” States are abstract entities, they do not act on their own, States act through their agents, or “state actors.” When a State actor violates the human rights of an incividual, it is deemed a violation by the State itself. Part 1, Chapter 2 of the Articles on State Responsibility provides the basis for State accountability when a public officer violates the rights of an individual. This is the reason why demands for human rights are made against the government when, for instance, a police officer fails to observe the ‘Miranda warning, or makes shortcuts in implementing the law, or ‘manhandles a street parliamentarian or violates a person’s right to Privacy. Si >i,8 [INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS HAPTER IL " Stare RESPONSIBILITY Violations by private individuals Individuals or groups can commit human rights violations and can be held liable for such. Individual responsibility for human rights violations committed by private persons are treated and punished under the criminal law system, a field of law which is, very much intertwined with Human Rights Law, but is offered as a separate subject in the Law curriculum. Thus, a person who deprives another of his life, liberty, or property may be charged under penal laws for homicide, kidnapping, or robbery, for instance. For that to happen, the act or omission must be defined and penalized under an existing domestic law, otherwise the offender could not be held liable for it. Nulla poena sine lege (There is no crime if there is no Jaw punishing the act or omission). Inorder that human rights violations committed by individuals who are not “State actors” can be properly dealt with, itis necessary that: a ‘The State, through its lawmaking body, must enact the appropriate laws to criminalize the human rights violations; and b. The State, through its judiciary, must provide adequate judicial remedies. State liability for human rights violations committed by “non-State actors” State liability may attach for human rights violations committed by “non-State actors” if the State failed to pass laws to protect its people from these violations, and to provide for adequate judicial remedy. The State's role as guarantor of human rights enjoyment and protection carries with it the obligation to ensure that State actors and non-State actors do not violate them. Ul B. INTERNATIONAL STATE RESPONSIBILITY Wherever a State ratifies a human rights treaty, it commits itself not only to observe the standards set forth in the treaty and see to it that its agents do likewise, but also to enact domestic laws and regulations in order to hold private individuals accountable. ‘The traditional principle in international law is that individuals fare not directly bound by it, for individuals are not subjects of international law. By ratifying a treaty, the State agrees to be bound by international law and thereupon incurs responsibility. In turn, the State has to ensure that the obligations under the treaty are observed within its jurisdiction by its people. Hence, the duty to enact the corresponding laws of local application. ‘The State's responsibility to ensure compliance with international ‘human rights obligations does not end with the enactment of local laws, it should also see to it that those aggrieved by the violations of these laws must have adequate judicial remedy. It is thus important that its judiciary has the mechanisms, the integrity, and the accessibility to dispense justice for victims of human rights abuses. International State responsibility for internationally wrongful acts In the international level, State liability may be incurred for internationally wrongful acts. The Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission in 2001, provides in Article 1 that, “Every internationally wrongful act of a State entails the international responsibility of that State.” Article 2 of the Articles enumerates the following elements of an internationally wrongful uct of the State: 1) The act or omission is attributable to the State under international law; 2) The conduct constitutes a breach of an international obligation of the State. The State responsibility extends to acts committed by instrumentalities of the State. Persons and entities which have ‘the status of organs in the internal law of the State are included ‘in the term “State organs.” So also are persons and entities who, although not organs of a State, are empowered by a law of that State to exereise elements of governmental authority20 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS Article 4 expressly provides that, “Thé conduct’ of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character of the central organ of the government or of a territorial unit of the State.”* States also incur liability if they fail to prevent private individuals or groups from violating the human rights of others. In its Comment, the UN Human Rights Committee stated that, “The positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also_against acts committed by private persons or_entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities, There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. States are reminded of the interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2, paragraph 3. The Covenant itself envisages in some articles certain areas where there are positive obligations on States Parties to address the activities of private persons or entities. For example, the privacy- related guarantoos of article 17 must be protected by law. It is also implicit in article 7 that States Parties have to take positive measures toensure that private persons or entities do not inflict torture or eruel, inhuman or degrading treatment or punishment on others within their power. In fields affecting basic aspects of ordinary life such as work or housing, individuals are to be protected from discrimination within the meaning of article 26.” Inthelandmark Velasquez-Rodriguez case’ the Inter-American Court of Human Rights found that the victim Manfredo Velasquez “aril Ora Artcles onthe Responsibility of States for Internationally Weongfu Acts, Intern {onal Law Commision, adopted at the Sd Session n 2001 ‘Nelarquer Rodriguez vs. Honduras, Inter-American Court of Human Rights, July 29,1988, eres Gno.#(1988), m1 » HAPTER. STATE RESPONSIBILITY disappeared in the “hands of or with the acquiescence” of Honduran officials within the framework of a pattern or practice which was established. The Honduran government's failure to conduct an investigation on the disappearance, compounded with allegations of ‘attempts to thwart the victims’ plea for an investigation, was deemed an indication of government's involvement in the disappearance. In this case, the Court relied on circumstantial evidence, it being assumed that direct evidence of the kidnapping would be unavailable, having likely been suppressed by the government itself. It held that ‘under International Law, an impairment of the human rights of a person which is attributable to public authority, “constitutes an ‘act imputable to the State, which shall assume responsibility.” Derivative State responsibility for complicity ‘The general rules on attributing State Responsibility were mentioned earlier, ie, (a) direct responsibility of the State committed by State actors, and (b) responsibility for acts committed by non-State actors when the State failed to pass laws, prevent and punish violations, and to provide adequate legal remedies. So the next question is, can a State be held liable for the acts of another State? Under our domestic criminal laws, a person can be held liable for the acts of another by reason of conspiracy, or when he contributes to the commission of the erime or to the success of the criminal as a principal, accomplice, or accessory. To be considered such, he must have performed an overt act. As a rule, mere presence at the scene of the crime or acquiescence to the act is not punished. Under International Law, a State may be held liable for a human rights violation even if it did not directly commit the act constituting the violation, provided that it assisted in the commission of the act or allowed it to happen, similar to @ conspirator, accomplice, or accessory in our criminal law. Articles 16 and 17 of the Articles on State Responsibility provide for “derivative responsibility,” which is present where (a) the State aids and assists in the commission by another of the internationally wrongful act and, (b) the State exercises direction and control over the commission of the ac:INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS The principle of State Responsibility “through complicity probably originated from the Nuremberg Principles, which states in Principle VII that, “Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.” In the case of Nicaragua vs. United States of America® the United States was held liable for violation of customary international law on non-interference in the affairs of another State for “training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua.” For this reason, the United States was ordered to make reparations for the injury caused by such violation. However, on the other issue of whether the United States should likewise be held liable for producing and distributing a manual to the guerillas that tended to incite them to fight the Nicaraguan government, the ICJ held that the United States violated the general principles of humanitarian law by such acts, but found no basis to hold it liable for the crimes committed by the guerillas. It should be emphasized that the Nicaragua ruling focused on State liability by reason of complicity, which should not be confused with the ICTY ruling in the Delalic case applying the “overall control test” in order to determine whether the armed conflict was international or internal. Ul. C. PHILIPPINE CASES ON STATE RESPONSIBILITY Prohibition on unreasonable searches and seizures is a restraint against the State, and not against private individuals Inthecaseof People us. Andre Marti,’ theaccused wasconvicted for violation of the dangerous drugs law when he attempted to ship marijuana through a courier. It was found out upon inspection by the courier as part of standard operating procedure that the package ‘Nicaragua vs. United States of meric, International Court of Juste, tune 27,1986. GR. No. 81561, January 38, 1991, 23 ‘CHAPTER IL STATE RESPONSIBILITY contained marijuana. The Supreme Court ruled that the illegal articles could be admitted as evidence even if these were products of a search conducted without a warrant, because the person who conducted the search was a civilian, not a government agent. It ratiocinated thus: “The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the Jaw. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.” “And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are restraints upon the government and its agents, not upon private individuals citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 817 P.2d 938 (1957).” “For one thing, the constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals.” “Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies, in ari passu, to the alleged violation, non-governmental as it is, of appellant’s constitutional rights to privacy and communication.” Justiciability of the solidary right to a healthy environment In the landmark ease of Oposa vs. Foctoran,!" the Philippine Supreme Court recognized the human right of the children- Petitioners to a balanced and healthful ecology and of the State's duty to protect. that right, not only for the petitioners, but also for “generations yet unborn,” thereby laying down the principle that the solidarity right to a healthy environment is a justiciable issue that can be properly raised before the courts of law in our jurisdiction. GR Wo, 101065, july 20,1993,m INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS am Site RESPONSIBILITY This is particularly significant because this right is a newly evolved right, a “third, generation” right, and because in the international arena, there had been much debate, still unsettled up to this time, as to who has responsibility for violations of solidarity rights, in the spate of disasters brought about by corporate negligence. In the Oposa case, the petitioners were all minors, suing through their parents, They asked the Court to have the Secretary of Environment and Natural Resources cancel the Timber License Agreements (TLAs) issued by him and to cease and desist from further issuances, claiming that these would be violative of their right to self-preservation and perpetuation. ‘The Supreme Court laid down the Doctrine of Intergenera- tional Responsibility in this case. This means that the present generation holds the natural resource treasures of the earth in trust for the benefit, enjoyment, and use of the generations of humankind yet to come, and the State has the responsibility to protect and see to it that this be realized, ‘The case was brought against respondent Factoran, in his capacity as the Secretary of the Department of Environment and Natural Resources, thus ascribing responsibility to the State the acts of its officials. Although what constituted potential human rrights violations were activities of private corporations and business entities, the State has the power to regulate these activities, and it is the exercise of this power which is the crux of the controversy. Because the private business entities were not impleaded in tha case, the issue zeroed in on State Responsibility to protect the human right to a clean and healthy environment. Tt would have been a lot more tricky if the case involved private entities or corporations, especially when the corporations are “citizens” of another country. In the case of transnational corporations which operate in many countries other than that where itis a national of, accountability may be difficult to enforce and state responsibility may be hard to determine. ‘The norms for the responsibility of transnational corporations for violations of human rights are still to be formalized. Efforts are ongoing for the adoption of U.N. Doc. E/CN.4/Sub.2/2003/L.11 at 52 (2003) (“The Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with regard to Human Rights"), which was approved in August 2003 by the UN Sub- Commission on the Promotion and Protection of Human Rights. The Writ of Kalikasan ‘The human right to a balanced and healthful ecology got another boost with the issuance of the Rule of Procedure on Environmental Cases, A.M. No. 09-6-8-SC, particularly Rule 7 on the Writ of Kalikasan. ‘The writ is “a remedy available to a natural or juridical person, entity authorized by law, people's organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces." IL D, COMMAND RESPONSIBILITY Liability for violations of human rights, in the same manner as criminal liability under the Revised Penal Code, may be incurred by an act or omission. The offender can be made to answer for his act, as well as for his inaction, when such act or inaction results in human rights violation. The failure of a superior officer to stop human rights violations committed by hie subordinates, though absent a showing that: he directly ordered the commission of these acts, could still make him liable as well for such acts, under the Doctrine of Command Responsibility. The Yamashita Standard One of the earliest and most internationally persuasive decisions on this is a case originating from the Philippines, later on elevated to the United States Supreme Court. "Rule 7, Pari, AM No, 09-68526 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS In Re Yamashita"? is a éase involvitig Gehéral Tomoyuki Yamashita, the commander of the Japanese Imperial Army in the Philippines. He was charged for violations of the laws of war by “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.” There were allegations that, the Japanese army under his command engaged in a “deliberate plan to massacre and exterminate a large part of the civilian population of Batangas Province as a result. of which more tha 25,000 men, women, and children all unarmed noncombatant civilians, were brutally mistreated and killed.” A military commission heard the case of Yamashita. Upon conviction, Yamashita applied for a writ of habeas corpus before the Philippine Supreme Court, wherein he assailed the commission's lack of jurisdiction, among others. The Philippine Supreme Court denied his application and ruled that the Commission was validly constituted. The case was elevated to the U.S. Supreme Court, which found Yamashita guilty and sentenced him to death. The Court ruled that under International Law on the law of war, violations of war “have to be avoided through the control of the operations of war by commanders who to some extent are responsible for their subordinates.” As commander, General Yamashita was under an “affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population.” ‘The Yamashita ruling resulted in a new legal standard, so to speak, governing command responsibility, which gained considerable international acceptance as part of international customary law. The “Yamashita Standard” was applied in some decisions, although there are criticisms againstit, such as its doubtful applicability in cases where those charged are commanders of armies of entities which are not recognized as States. For instance, the International Criminal Tribunal of the former Yugoslavia (ICTY) made no reference to this standard in the cases brought before it, and understandably so, because the circumstances surrounding such cases are different. 327 US. 1 (1986) (CHAPTER I ul ‘STATE RESPONSIBILITY A similar standard, known as the “Medina Standard,” was adopted based on the prosecution of US Army Captain Ernest ‘Medina in connection with the My Lai Massacre during the Vietnam War. In that case however, Medina was acquitted. Under the Rome Statute, a “military commander or person effectively acting as a military commander shall be criminally responsible for crimes committed by forces under his or her effective command and control, or effective authority and control as a result of his or her failure to exercise control properly over such forces.” ‘This will be discussed more extensively under Chapter XVI. "article 28, Rome Statute ofthe International Criminal Court.CHAPTER IV SOURCES OF INTERNATIONAL HUMAN.RIGHTS LAW Article 38(1) of the Statute of the International Court of Justice (ICJ) enumerates the sources of human rights laws as follows, to wit: 1. International conventions; 2. Interriational custom, as evidence of a general practice accepted as law; 3. General principles of law recognized by the community of nations (referred in the Statute as “civilized nations”). Nos. 1 to 3 are considered the principal sources of international law; 4, Judicial decisions and the teachings of the most highly qualified publicists (as subsidiary means for the determination of rules of law). IV. A. INTERNATIONAL AGREEMENTS International agreements, more commonly known as “treaties,” usually are officially called conventions or covenants. The Vienna Convention on the Law of Treaties defines a treaty as a “legally binding written agreement concluded between States.” A supplement or subsequent agreement relative to an existing treaty is usually referred to as “protocol.” ‘Thus, the “Palermo Convention” refers to the original treaty which is the United Nations Convention Against ‘Transnational Organized Crime, while the “Palermo Protocols” refer to the subsequent treaties entered into by the states to supplement the original treaty and which deal on specific crimes, eg., human trafficking, smuggling of migrants, or arms trafficking, A State’s consent to be bound by a treaty is expressed through ratification, approval or acceptance. Generally, the act of merely signing a treaty is not enough to bind the State. Once a treaty is ratified, the State is bound to faithfully comply with its treaty obligations under the doctrine of “pacta sunt servanda.” But unlike other treaties where liability arises only where there is bad faith on 28 Tr ere » aw CHAT TES Of INTERNATIONAL the part of a State, in human rights treaties there can be liability even in the absence of bad faith. ‘The core international human rights treaties au 1, International Convention on Civil and Political Rights (ICCPR, entered into force on March 23, 1976) with 2 Optional Protocols; 2, International Convention on Economic, Social and Cultural Rights (ICESCR, entered into force on January 3, 1976); 3. Convention Against Torture and Other Cruel, Inhuman and Degrading ‘Treatment or Punishment (CAT, entered into force on June 26, 1987); 4, International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, entered into force on January 4, 1969), 5. Convention on the Rights of the Child (CRC, entered into force on September 2, 1990) with 2 Optional Protocols; 6. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, entered into force September 8, 1981) with 1 Optional Protocol; 7. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (entered into force July 1, 2003); 8. International Convention for the Protection of All Persons from Enforced Disappearances (adopted in 2006); International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities. IV. B. INTERNATIONAL CUSTOMARY LAW To be considered international customary law, there must be: 1) The objective element of acts amounting to “settled practice” of States; and20 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS rT ' _ GPE reanioxns stn mS AW 2) The subjective clement consisting of a “belief that this practice is rendered obligatory by the existence of a rule of law -requiring it” (opinio juris sive necessitates or opinion juris or an opinion of law or necessity) In the cases of North Sea Continental Shelf, the International Court of Justice (CJ) laid down the Doctrine of Customary Law, and made clear the requisite objective and subjective elements. Jus cogens ‘There is a unique class of customary laws that occupy the highest echelon in Human Rights Law hierarchy, known asjus cogens (“compelling law”). This group of fundamental norms is superior to other sources of international law and need not be agreed upon by States in a treaty in order to form part of their jurisprudence. They are deemed to be inderogable as well. ‘The definition, elements, and effect of peremptory norms or “jus cogens” over treaties are contained in the Vienna Convention on the Law on Treaties, which states that: “Article 53. Treaties conflicting with a peremptory norm of general international law (jus cogens’). — A treaty is void if, at the time ofits conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” From this article, we can derive the following elements of jus cogens, namely: 1. It is a peremptory norm of general international law; 2. It is accepted and recognized by the international community; ‘Ws Denmark, and West Germany vs Netherlands, International Court of lustce, February 20,1968 3. There can be no derogation therefrom; 4, Tt can be modified only by a subsequent norm of general international law having the same character. ‘The concept of jus cogens became controversial because of the difficulty in determining what is the norm, considering that different States may have different cultural influences and different standards to gauge what is peremptory norm. Among the universally-accepted norms are the rights against slavery, genocide, ‘acts of aggression, and racial discrimination. ‘The International Court of Justice (ICJ) settled some of the issues pertaining to jus cogens. In the case of Nicaragua vs. the United States of America® decided in 1986, the ICJ reiterated the superiority of us cogens as a source of human rights. The ICJ ruled that the principle of non-use of force is jus cogens, so that even if the UN Charter and the treaty were not applicable in the case, the ICJ ‘may still rule on that issue. In this case involving the Unites States, the latter did not ratify the applicable treaty and did not make a categorical acceptance of the jurisdiction of an international court. Jurisdictional questions notwithstanding, the ICJ still ruled on the case against the United States because it involved a jus cogens right. Obligatio erga omnes ‘There is a category of international obligations known as obligations erga omnes. These are obligations that are owed by States Lo all, regardless of the presence or absence of their assent to be bound thereby. These obligations are intertwined with the concept of jus cogens and usually arise from jus cogens rights. ‘These obligations were first recognized in the obiter dictum in the case of Barcelona Traction Light and Power Company (Belgium 8. Spain) which was decided by the International Court of Justice. In the Barcelona Traction case, the ICJ made a distinction between the State's obligation to the internationel community and its obligations to another State in the field of diplomatic protection. If a State violates a treaty with another State and the treaty “Nicaragua vs. United States of Americ, international Curt of ustice, lune 27,1986.a INTERNATIONAL AND PHD only pertains, for instance, to'their bilateralagreement regarding trade, that infringement is a private matter between the contracting States. However, where human rights laws which are of paramount importance for the international community are violated, all states, have a legal interest in their protection, for they are obligations owed by the State to the community of States. They are obligations erga omnes. A respected human right scholar, M. Cherif Bassiouni, whom this writer had the privilege of listening to at a symposium on Human Trafficking at Johns Hopkins University in Washington, D.C. in November 2010, wrote about international crimes which are considered “jus cogens crimes” and which give rise to erga omnes obligations of a State to prevent and prosecute. According to Prof. Bassiouni, the statute of limitations do not apply to jus cogens crimes, and universal jurisdiction may even apply to these crimes. Universal jurisdiction When discussing jus cogens rights and erga omnes obligations, reference is usually made to the concept of universal jurisdiction. ‘This is because the principles of jus cogens and erga omnes transcend boundaries, Under this principle, a State may prosecute a crime committed elsewhere if such crime is a jus cogens crime. Belgium is responsible for the first widely-implemented law on universal jurisdiction, which it passed in 1993, (In 2003, the law was repealed and substituted with another one on extraterritorial jurisdiction.) Perhaps one of the best known examples of the exercise of universal jurisdiction ‘was the issuance of a warrant of arrest by Spanish Judge Baltasar Garzon against former Chilean dictator Augusto Pinochet. for crimes committed in Chile against Spanish citizens, which warrant was implemented in the United Kingdom. In Europe, members of the European Union also adopt the European Arrest Warrant Scheme, and in the United Kingdom, they have the Commonwealth Extradition Scheme. ‘The concept of universal jurisdiction has met a lot of criticisms from very influential statesmen including Henry Kissinger because itis deemed an intervention of a State's sovereignty over its citizens. ea a cuarm SOURCI W OF INTERNATIONAL HUMAN RIGHTS LAW ‘Phe initial fervor that weleomed the concept has waned over the years, although some sectors are still vigorously pursuing its application by States on certain select crimes. The creation of the International Criminal Court (ICC) and other international criminal tribunals also reduced the need for the exercise by individual States of universal jurisdiction. Actio popularis Prosecution of jus cogens crimes may be initiated by another person oF group of persons for the benefit of another through a complaint acfio popularis. Non-government offices (NGOs) of good standing in the international community may be allowed to sue for and on behalf of victims who do not have the means to do so. Complaints actio popularis do not necessarily arise from erga omnes obligations: the term erga omnes refers to obligations of States to the international community, while actio popularis is a rule of procedure in bringing a suit on another's behalf. However, these are terms which are usually used together in the course of the discussion on Jus cogens rights and erga omnes obligations. IV. C. GENERAL PRINCIPLES OF LAW General principles of law are unwritten, and uncodified coneepts from which laws are based. A principle of law may evolve from local or municipal jurisprudence of a State which is adopted by other States, from teachings and publications, and from works of experts. An example of a body of principles of law originating from experts’ views is the Yogyakarta Principles on the rights of lesbians, gays, bisexuals and transgenders (LGBT). While the Yogyakarta comprises mostly of human rights prineipks already embodied in other treaties and are considered fundamental human rights of every individual regardless of sex (such as the rights to marry and to found a family), these rights become controversial where it refers to LGBT, simply because of traditional gender stereotypying. The Yogyakarta Principles is still in its infaney and many States are still not wont to adopting it, especially those whose governments are deeply influenced by religion. It will likely take a long time before it will evolve into being part of “generally-accepted principles of law,” and probably only in certain regions of the world.INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS rT (CHAPTERIV Ey SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW In many instances, the ‘United Natidis' is’ Fesponsible for pushing for studies and researches on issues of international concern, for providing an avenue for international discussion, and for adopting principles relative to such issues. The Incorporation Clause ‘The Philippine Constitution “adopts the generally accepted principles of international law as part of the law of the land.”* This is referred to as the incorporation clause. This means that the Philippines has the obligation to observe generally accepted principles of international law not only as customary law but because of the express provision of the incorporation clause in the Philippine Constitution. In Kuroda vs. Jalandoni,!" the Philippine Supreme Court ruled that the Military Commission created by the President of the Philippines whieh tried General Shigenori Kuroda of the Japanese Imperial Army for the war crimes committed in Philippine territory during World War 2, was valid and constitutional by virtue of the incorporation clause in Article 2 of the Philippine Constitution. That, despite the fact that the Philippines was not a signatory of ‘The Hague and Geneva Conventions at that time. IV. D. JUDICIAL DECISIONS AND TEACHINGS International case Law is recognized in Article 38 of the Vienna Com on the Law on Treaties as a subsidiary means for the determination of rules of law. International case law may consist of judgments of international tribunals, the regional courts and even domestic courts, although international tribunals rarely look to decisions of domestic courts in ruling an international dispute. The teachings of the most highly qualified publicist may also be consulted in ruling an international dispute, ‘The international and regional tribunals are: (1) International Court of Justice (IC) — The principal judicial organ of the United Nations Organization. It ‘eaion’, ania GR No. 2652, 7987 Phlippine Constitution rch 26,1945, was established by the Charter of the United Nations in June 1945 and began work in April 1946. Tt is based in The Hague, The Netherlands (which is known as the “Legal Capital of the World”), ard is the only UN organ located outside New York, USA, where the UN has its headquarters. ‘At the ICJ, only member States may lodge complaints Individuals are not recognized as parties in that court. It exercises jurisdiction in two (2) kinds of cases: (a) Contentious cases — Cases submitted by State ‘Members of the UN, or other States which are parties to the Statute of the Court or which have accepted its jurisdiction; and (b) Advisory proceedings — Requests for advisory opinions on legal matters submitted by UN organs and specialized agencies. ‘The official languages in the ICJ are English and French. It is composed of 15 judges, who are elected for terms of office of nine (9) years by the United Nations General ‘Assembly and the Security Council. It is assisted by its administrative organ known as the Registry. While individuals still do not have a jus standi to bring a complaint before the ICJ, they may be beneficiaries of such suit, which can be brought in their behalf by a State. ‘The Barcelona Traction case (Belgium ve. Spain)'* decided by ICJ is noteworthy because the court laid down two (2) important doctrines: (@ A State can bring the case for the benefit of a corporation; and (®) Tt made an obiter dictum recognizing and expanding the meaning of erga omnes obligations. In this case, Belgium brought the case in behalf of Belgian nationals who were investors in a Toronto-registered "Begin vs. Spin, International Court of Justice, bly 24 1966