HUMAN RIGHTS LAW ● Collective Conscience means each and every person is responsible for everybody else’s

well-being therefore we can all get involved

NATURE AND BASIC PRINCIPLES OF HUMAN RIGHTS
VIDEO: WHAT ARE THE UNIVERSAL HUMAN RIGHTS (BENEDETTA BERTI)
VIDEO: WHAT IS A HUMAN RIGHT? ● Entitled to the same basic rights and freedoms
● Because we are human beings, there are certain things our governments do to help us ● Not privileges and cannot be granted or revoked
reach our potential and there expectations and claims we have of our governments are so ● Inalienable and universal
called Human Rights ● Struggle with rightfulness, justice, and rights
● Rights call on government to: ● UDHR based on principle that all human beings are born free and equal in dignity and
○ Respect: avoid putting limits on some things that a person can do rights
○ Protect: safeguard a person from abuse ● Universality, Indivisibility and Interdependence of the rights
○ Fulfil: to provide basic conditions to enable a person to achieve their potential ● Problem: not easy to universally enforce these rights
● The most basic minimum human rights standards have been discussed and written down ● Mechanisms to address violations of UDHR are weak
by countries and they have agreed to follow them--these become international law ● Cannot force states to change policy
● Example: Constitution (Bill of Rights) ● General bias favoring civil political liberties over social political rights and of individual
● Promoting respect for basic rights is one of the main purposes of the United Nations over group rights
(Article 3) ● HR Laws can set standards and not all are powerless
○ Achieved through the activities of its organizations around the world ○ EU Convention on HR establishes a court where member-countries and citizens
○ Office of the UN High Commissioner for Human Rights is responsible for can bring cases-- court makes binding decisions which must be complied with
leading the UN’s human rights programme
○ Committees of experts that monitor how well countries put their human rights August 25, 2020
promises into practice
○ Assembly of countries called the ​Human Rights Council​ which discusses RIGHTS
different human rights topics and situations around the world ● Something you are entitled to--they are entitlements
● Kind of right depends on the source
VIDEO: THE STORY OF HUMAN RIGHTS ○ Statutory or it can belong to you as a person
● Human: A member of the homo sapiens species; a man, woman, or child; a person
● Rights: Things to which you are entitled or allowed; freedoms that are guaranteed HUMAN RIGHTS
● Human Rights are the rights you have simply because you are human--how you deserve ● Not granted or bestowed but there is still something that makes you think--what is this
to be treated as a person right?
○ The only rights that absolutely apply to anyone anywhere--universal ● Rights that you have because you are human
● UN: 30 HR ● Acknowledgement that everybody is entitled to have rights without distinction
○ Listed in UDHR ● Started after the WW
● Cyrus the Great freed the slaves-- Proclamations of Cyrus ● Has an adversarial relationship with the State primarily because your entitlement as a
● Mahatma Gandhi person, you primarily claim it against the State
● To reaffirm faith in fundamental human rights, in the dignity and worth of the human ○ Entitlement against whom? And why do you have those rights?
person ○ Power of the state is limited
○ Under Eleanor Roosevelt, finally agreed on what those rights are-- UDHR ● In the Philippines, Jose W. Diokno is largely considered the father of human rights
○ But did not have the force of law when it was enacted---optional advocacy. Human rights are more than legal concepts--they are the essence of man. They
● From natural rights to human rights make us human. In his words, “deny them and you deny man’s humanity.”
● What are not human rights?
VIDEO: HUMAN RIGHTS IN 2 MINUTES ○ Compared to ordinary or legal rights-- statutory rights
● 1948: Recovering from WW2 ○ Human Rights have no source per se unlike statutory rights
● UDHR adopted by UN General Assembly ○ Cannot waive human rights but ordinary rights can be waived
● Human rights are like needs
○ They are all related to each other Scope of Human Rights
● States must ensure that the rights are respected but in reality, UDHR is not valid in ● It is so generic a term that any attempt to to define it could at best be described as
accord of law inconclusive
 ● 2 divide: ■ Where do you claim? From the State but there are exceptions??
1. Civil and political rights (gulat si sir)-- Bill of Rights
2. Economic, social, and cultural rights ○ We need a branch of law that will hold people accountable and that’ the only
● Challenge to human rights: As to source check there is
○ What is the justification? ○ HR is a limitation/check on the power of the State
○ Where do you get it?
● Human rights come from human ​dignity EVOLUTION OF HUMAN RIGHTS
○ Justification ● It is new and it started in the birth of UDHR (1948)
● Social Contract Theory ● Law on State Responsibility
○ As an individual/citizen of the state and the state has the responsibility to ○ State v. State because you cannot sue another state as an individual
protect you ● Before HR, how does an individual go against the state?
○ Contract between state, the sovereign, and citizen ○ Invoke state responsibility
● PH SC adheres to dignitarian view of human rights ● Importance of HR Law: Individual can go against the state unlike before

HUMAN RIGHTS LAW ICCPR

● Law that legally guarantees human rights
● How then do you enforce your rights? VIDEO: INTRODUCTION TO HUMAN RIGHTS | LESSON 18: "UNIVERSAL AND REGIONAL
○ Through the law PROTECTION MECHANISMS"
● Sources?
● SAS v. France Universal Protection Mechanisms
○ Freedom of religion ● UN Charter made human rights, even those of a State’s own citizens, is a legitimate part of
■ To believe: absolute international law
■ Manifest one’s religion (Conduct): can be subjected to limitations, ● FOllowed by UDHR 3 years later and since then, it has developed 9 core human rights
exceptions: public order, public safety, public health, and rights of treaties
others ● HR Institutions to promote and protect human rights
○ Right to private life ○ UN Treaty Bodies
■ Autonomy ○ UN Human Rights Council
■ It can be restricted if based on law and distinction not arbitrary ● They are the quasi-judicial wing of HR institutions and the inter-governmental, political
○ Each state has a margin of appreciation on how they should comply to human wing of UN human rights institutions
rights ● UN Treaty Bodies/UN HR Committees
■ Leads to the value of secularism (“living together”) ○ Each of the 9 core treaties has this
○ France values liberty, egalitarian, and fraternity ○ Atty. Temporosa: Monitor and guide the state in the performance of their
○ Interest of the individual over the state obligations
○ EU most advanced human rights (????) ○ Responsible for supervising and monitoring the implementation of the
● Human rights is not always about the good--there are always defenses relevant treaty
● Human rights is a discourse ○ 12-18 members who serve in their individual expert capacity (important
○ It involves pros and cons, arguments because this means that they do not represent their state but they are there to
○ Defenses of state: valid restriction, limitation, in emergency so ok to derogate in an independent capacity)
rights ■ Elected by the State parties to the relevant treaty
● Problem: Populism/ Populist Challenge to Human Rights ■ 4 year terms and half of the committee is elected every 2 years
○ Change in the approach or how you regard human rights ○ Functions
○ HR Law is a discourse ■ Reporting Process
○ 1990s - heyday of HR but but right now we see the rise of leaders who don’t ■ Individual Complaints Process
really believe in human rights/emancipatory power of human rights ○ Reporting Process
○ Due to many factors: States adopt the language of human rights but with bias ■ Compulsory process
○ You might say you don’t care about it but once you are affected, you will cry ■ Each state party to a human rights treaty must submit a periodic
human rights report to the relevant treaty body detailing its implementation of
○ HR will always have a sort of adversarial scheme the particular treaty (areas of success and problem areas)
 ■ A counter-report will be submitted by civil society from that country
■ Reports and information are examined in a public dialogue between
the State and the relevant treaty body
■ Concluded by a treaty body issuing “concluding observations” which
are like a report card detailing the good aspects of State’s
implementation, those which need improvement, and
recommendations for the future
○ Individual Complaints Process
■ An individual can submit a complaint to a treaty body alleging
violations of his/her rights under the relevant treaty (violations by a
State)
■ Optional (State must opt-in into the process to allow individuals to
have this right)
■ 2 Stages: Admissibility and Merits
■ First, a treaty body must establish if a complaint is admissible
according to particular admissibility criteria
■ If it is admissible then move to merits of complaint that is to decide
whether or not a violation has in fact taken place
■ If there is a violation, it will make recommendations to the State as
to how to compensate the victim and how to avoid similar future
violations
○ They are not courts--QUASI-JUDICIAL BODIES
■ Findings are not strictly binding in international law
■ But they represent authoritative interpretations of relevant treaties
which are legally binding documents
○ If a state routinely ignores the findings, that is evidence of bad faith attitude
towards their human rights treaty obligations
● UN HR Council
○ Established in 2006
○ Succeeded and replaced a similar body known as the Commission on HR
(1946-2006)
○ 47 State Members who represent their governments which means that it is
inter-governmental, political body, and its proceedings are inevitably
policitized
○ Spread out among 5 UN regions
○ Each member is elected by a secret ballot and by a majority of the General
Assembly
○ 3 year term and no member may serve more than 2 consecutive 3 year terms
○ Possible for a member to be suspended by a vote of the General Assembly
(2011, Libya was suspended)
○ Functions
■ Meets 3x a year in Geneva (UN HR headquarters) for 10
weeks--Regular Session Agenda (March, June, September)
■ Makes decisions and passes resolutions under its agenda
■ Resolution is passed if more States vote in favor than against (you
can also abstain)
■ Special 1-Day Sessions on particular HR issues or on particular
countries: Vote of ⅓ of members
■ Controls Universal Periodic Review (UPR)--HR record of every state
member (193 countries) is examined by all of the other countries
which takes place on a rolling basis over 4 ½ years
■ Special Procedures: appoint a “Special Rapporteur” or a group
“Working Group” to investigate a HR issue. They serve in an
independent capacity and they report to the HR Council
○ Criticism: Disproportionate focus on certain States and certain issues,
compared to its lack of focus on others
■ Problem with political body but it is difficult to stop a political body
from being political
■ States would vote based on their political interests rather than
necessarily in the interest of what is good for HR
○ Important to have global, inter-governmental HR body like HR Council
■ States care what other States think about their HR record
○ Resolutions are not legally binding but can have great political value and moral
value
Regional Protection Mechanisms
● Oldest HR system in Europe under the auspices of the Council of Europe
○ The key instrument is the European Convention on HR
○ EU Court of HR which hears cases about alleged violations
○ EU treaties dealing with particular HR rights issues such as economic, social,
and cultural rights, and torture
● Inter-American System exists under the auspices of the Organization of American States
○ Key instruments: American Declaration of the Human Rights and Duties of
Man, an American Convention on Human Rights
○ Inter-American Court of HR which hears cases and a quasi-judicial body
(Inter-American Commission on HR) which hears cases and reports on
particular HR issues
● Organization of African Unity
○ African HR system with African Court of HR and Commission on HR
○ Key instrument: African Charter on Human and People’s Rights
● Arab System developed by Arab League with an Arab Convention on HR (without HR
court)
● They are in some way stronger than the global system because they are regional courts
which can make binding international legal decisions
● Region lagging behind: Asia esp South Asia and Southeast Asia where there isn’t yet an
advanced HR machinery
VIDEO: ECHR - FILM ON THE EUROPEAN COURT OF HUMAN RIGHTS
● No one can look years into the future and claim to be safe from the threat of
totalitarianism. That is why we must act first by creating a conscience that can raise the
alarm. That conscience can only take the form of a special court for Europe (Pierre-Henri
Teitgen)
● Individuals can make the State to be held into account
● 1959: Court came into being-- NEVER AGAIN to experience the atrocities in the mid 20th
century (now 50 states)
● Fully independent and do not represent any
 ● Decisions made by Single Judge, Committee (3), Chamber (7), Grand (17) ● Easy to talk about HR but it is hard to comprehend-- becomes politicized
● Vast majority of are rejected because fails to meet the admissibility requirements ● Implications how country to country relates
(mostly because hasn’t raised in national courts) ● Mandate
● More potential applicants who are not europeans (refugees, indiv who happen to be ○ Help enhance the commitment of members to stick to their international
under the jurisdiction of member-states) commitments
○ Violation of Italy: Forced return of Somalians to Libya (Hirsi Jamaa and Others ○ Make sure that ASEAN Declaration is implemented (specifically adjusted to
v. Italy) every region)
● Extend beyond EU borders ● Issue: How do you respond?
○ UK in breach following death of civilians in Iraq (Al-Skeini and Others v. UK)
○ States liable for those occurring outside the territory September 15, 2020
● Most fundamental: Right to life (no death penalty)
○ State’s failure to protect individuals 9 CORE UNIVERSAL HUMAN RIGHTS INSTRUMENTS​ (exam q!!)
○ End of Life 1. ICERD International Convention on the Elimination of All Forms of Racial Discrimination
● Fair dealing and length of domestic trials (21 Dec 1965)
● Convention in general terms and courts will interpret based on context 2. ICCPR International Covenant on Civil and Political Rights (16 Dec 1966)
● Environmental Issues 3. ICESCR International Covenant on Economic, Social and Cultural Rights (16 Dec 1966)
● Unimaginable by Convention 4. CEDAW Convention on the Elimination of All Forms of Discrimination against Women (18
○ Technology Dec 1979)
○ Turkey blocked sites (Google, etc)--breach of freedom of expression 5. CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
● Politically-sensitive issues Punishment (10 Dec 1984)
● Provoke strong public reaction 6. CRC Convention on the Rights of the Child (20 Nov 1989)
● Impact of decisions: All states are bound to comply with and execute it 7. ICMW International Convention on the Protection of the Rights of All Migrant Workers
● Executive Arm: Committee of Ministers and Members of Their Families (18 Dec 1990)
○ Verify execution of court judgements 8. CPED International Convention for the Protection of All Persons from Enforced
● Led to changes in national legislation Disappearance (20 Dec 2006)
● Principle of Subsidiarity: Only reach the court when the fundamental rights of the 9. CRPD Convention on the Rights of Persons with Disabilities (13 Dec 2006)
individual have not been recognized directly by the national legislation
CHARACTERISTICS OF UDHR
VIDEO: LECTURE 1 INTRODUCTION TO REGIONAL HUMAN RIGHTS SYSTEMS 1. Universality
● Why create Regional HR Systems? 2. Interrelatedness
○ To address distinctive regional HR issues (African: right to freely dispose of 3. Interdependence
their wealth and natural resources) 4. Indivisibility
○ To commit to higher HR standards than could be agreed to in UN treaties open 5. Inalienability
to all states 6. Interconnectedness
○ To create a stronger monitoring and enforcement mechanisms, such as 7. Non-Discrimination
regional courts and commission
○ Due to greater political will for compliance with HR both domestically (from ICCPR
voters and interest groups) and regionally (peer pressure from other States) 2 Defenses if State
1. Derogation (Article 4, (1))
VIDEO: THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND HUMAN RIGHTS IN ASEAN - a. in times of national emergency
DR. DINNA WISNU b. Permitted violation
● ASEAN Intergovernmental Commission on Human Rights (AICHR) 2. Limitation Clauses
● As stipulated in Article 14 in UN Charter (Commission) a. Freedom of opinion is unlimited, absolute but freedom of expression has
● All programs and activities of ASEAN must be mindful of the human rights limitations
● Activities that you can generalize across the nations but a specific approach can be made
for every State 2 Obligations
● ASEAN Declaration of Human Rights 1. Immediate
● Allows more amicable dialogue among the States a. Peremptory
 2. Progressive ● Social Engineering
a. Step by step ○ Article 21 and 25
○ Free speech and all those related rights
NON-DEROGABLE RIGHTS ○ Right to privacy
1. Article 6: Right to Life ○ People have been using tools of persuasion all along and this is just one of them
2. Article 7: Torture, Cruel, Inhuman or Degrading Treatment
a. Torture: want somebody to confess September 29, 2020
b. CIDT: any kind of treatment that may not amount to torture but severity is
close to torture ICCPR
3. Article 8 (1&2): Slavery and Servitude ● Margin of appreciation given to the States on how to do obligations
4. Article 11: Imprisoned on the ground of inability to fulfil a contractual obligation ○ But not yet seen to be used in fair trials
5. Article 15: Liable criminal offense on account of any act or omission which did not ● Right to life is the highest--non-derogable
constitute a criminal offense, under national or international law, at the time it was ● There are ways which you can violate rights and there are defenses (limitations and
committed (ex post facto law) restrictions-- that are valid)
6. Article 16: Recognition as a person before the law ● Article 4(2) is about derogation--another defense (national emergency that threatens life
7. Article 18: Right to Freedom of Thought, Conscience, and Religion of nation)
○ Article 4(3) margin of appreciation--to appreciate the way you implement HR
OTHER NOTES obligations
● Reality: NO HIERARCHY
○ Possible that you may neglect other things ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
○ Casese (yes) v. Meron (no) ● Entered into force 1976
○ Invoking immunity can prevent remedy (Germany v. Italy) ● Is there a right to property? None but EU has
○ But in GC 36: Right to life is the supreme right-- as if there is a hierarchy? ○ Why? There was a lot of communists then
● Alien Torts Statute ● In ICCPR, when you comply-- RESPECT, FULFIL, and PROTECT (duties)
○ Sue another State for violations of law ○ It is an IMMEDIATE obligation
● Prohibition of Hate Speech (Article 20(2)) ● For IESCR, it is an IMMEDIATE obligation but full realization is PROGRESSIVE
○ Take steps to progressively realize
September 22, 2020 ○ Work towards it progressively
○ Deliberately work to lessen the number of hungry people
ICCPR DEBATE ○ Bc it is an obligation of CONDUCT not of result
● Right to Political Participation ○ If steps lang then they can use it as an excuse for their failure
○ Not the right to vote but to participate ● Capable of Immediate Application
● Freedom to believe is absolute but freedom to express yourself is limited 1. Article 3: Ensure the equal right of men and women to the enjoyment of all
● General Structure of Limitations of Rights economic, social and cultural rights
○ Necessity 2. Article 7(a)(i): Ensure remuneration which provides all workers, as a
○ Legality, and minimum, with: Fair wages and equal remuneration for work of equal value
○ With grounds that makes it reasonable without distinction of any kind, in particular women being guaranteed
● Penalize fake news or not conditions of work not inferior to those enjoyed by men, with equal pay for
○ Complicated equal work
○ Goes beyond the right to freedom of expression and opinion (Article 19) 3. Article 8: Form trade unions and join the trade union of his choice
○ Also involves protection against hate speech 4. Article 10(3): Children and young persons should be protected from economic
○ Are we going to adopt a libertarian approach? and social exploitation
○ Who gets to say what is fake news or not? 5. Article 13(2)(a): The States Parties to the present Covenant recognize that,
● Article 19 with a view to achieving the full realization of this right primary education
○ Interpreted as permissive of regulation shall be compulsory and available free to all
○ Speech can be curtailed 6. Article 13(3): Respect for the liberty of parents and, when applicable, legal
○ 5 grounds! (??) guardians to choose for their children schools
○ Who will restrict and how? In what manner?
 7. Article 13(4): No part of this article shall be construed so as to interfere with
the liberty of individuals and bodies to establish and direct educational
institutions…. Education given in such institutions shall conform to such
minimum standards as may be laid down by the State.
8. Article 15(3): The States Parties to the present Covenant undertake to respect
the freedom indispensable for scientific research and creative activity
● Remember:
1. Minimum Core Obligations (to see if some are deprived of their rights)
2. Progressive Realization
3. Obligation of Results and Obligation of Conduct
● Freedom from fear (ICCPR) and Freedom from want (ICESCR)
● Gov’t of South Africa v. Grootboom
○ Min. Core Obligation when you have reasonable programs (coordinated
reasonable programs)
○ REASONABLE: Allocation of resources and manpower
● Dilemma: I don’t want a standard that is too tight or too loose
October 6, 2020
ICESCR
● Immediate obligations: Minimum Core Obligations + Progressive realization
● CHR does not have the mandate to investigate violations of ICESCR (only ICCPR) but it
can promote human rights in general
● They are achieved PROGRESSIVELY (opposite: regressive)--take steps forward instead of
backward
● Olga Tellis v. Bombay Municipal Corporation​: ICESCR and ICCPR are interrelated (example:
right to life)
● If you lack the capacity, it is your duty to ask help from the other parties to the ICESCR
but lack of resources available may be excused
● Is it a violation if the State (during COVID) allots more budget on white sand rather than
for health? ICESCR rights are about the allocation of resources--so the State has to justify
● Grootboom​ and all the other cases: ICESCR rights are about REASONABLENESS, PROPER
ALLOCATION OF RESOURCES, and GOOD GOVERNANCE
○ When you are complying with HR, you are a good government bc you are
prioritizing the rights and needs of the people
● Treatment of Action Committee v. Minister of Health
○ “Self-Standing Right”
○ Consider minimum core in relation to Right to Health
■ Minimum core is the reasonableness (from ​Grootboom)
○ Can the court rearrange the budget of the government? NO
■ It can rule that the allocation is in violation of the ICESCR but can it
compel its co-equal in the allocation of the budget?
○ No violation of minimum core but there is a violation of ACCESSIBILITY as an
element of right to health
○ Highlights the Constitutional limits
○ Challenge: How to enforce it-- largely about allocation of resources
○ Doctrine: Allocation of resources, the Court is not institutionally equipped, min
core is not a self-standing right
○ “A program for the realization of socio-economic rights must be balanced and
flexible and make appropriate provision for attention to crises and to short,
medium, and long term needs. A programme that excludes a significant
segment of society cannot be said to be reasonable”
● Mazibuko v. City of Johannesburg
○ Flat system for water allocation
○ Example of positive obligation
○ Positive obligations will be enforced by the court in 2 ways
■ If gov’t takes no steps to realise the rights, the courts will require
government to take steps
■ If gov’t adopted measures are unreasonable, the courts will similarly
require that they be reviewed so as to meet the constitutional
standard of reasonableness
■ Grootboom​: Unreasonable if it makes no provision for those most
desperately in need
■ TAC​: If govt adopts a policy with unreasonable limitations or
exclusions, the court may order those to be removed
■ Obligation of progressive realization imposes a duty upon the
government continually to review its policies to ensure that the
achievement of the right is progressively realized
○ Africa complied with the minimum core--reasonableness
○ A reasonable challenge requires the gov’t to explain the choices it made--must
provide information and process
○ If the process followed by the government if flawed or the information
gathered is obviously inadequate or incomplete, appropriate relief may be
sought
○ Q: Court is attempting to justify that what Africa is doing is reasonable, but it
seems that reasonableness does not have to do with the result---is this a right
measure of reasonableness?
■ Problem is the courts are not fiscal managers so what can the courts
do?
ECONOMIC AND GROUP RIGHTS
● Positive and Negative obligations
○ Is it true that some rights only have positive obligations?
○ All HRs require both positive action and restraint on the part of the State
● Group Rights and Human Rights
○ Individual rights enforced collectively
○ Collective Rights (concept--third generation of rights)
● Remember
○ First Gen: ICCPR
○ Second Gen: ICESCR
○ Third Gen: Collective and Group Rights-- rights enjoyed necessarily in relation
with others
■ Positive law is still in the making
■ Still no treaty and no convention yet
RIGHT TO DEVELOPMENT
● Why development as a frontier right?
● Can you bring together development and HR?
○ There must be acknowledgement that HRs are legally binding
○ Normative baselines and principle of “do no harm”
● NOT IN THE EXAM
● Draft Convention
○ Article 4: Every human person and all peoples have the inalienable right to
development by virtue of which they are entitled to participate in, contribute
to and enjoy economic, social, cultural, civil and political development that is
consistent with and based on all other human rights and fundamental
freedoms.

Every human person and all peoples have the right to active, free and
meaningful participation in development and in the fair distribution of benefits
resulting therefrom.
○ Duty to Cooperate and there are coercive measures
● There are some people that recognize that ICESCR rights are not enough--there are rising
incomes and that nobody will be poor
○ No one should be left behind
○ So that you will benefit if your country becomes rich
○ Despite the rising levels of income in countries, there are still people who are
left behind

RIGHT TO HEALTH
● In relation to COVID: Discussion on past, present, and future
● Mazibuko: Vaccine distribution and access
● GC 14: About the highest attainable standard of health
● Article 12 (Exam q!)
○ Availability
■ Must be available to all
○ Accessibility
■ you can access it without discrimination
■ Economic accessibility--must be affordable
■ Information accessibility
○ Acceptability
■ Medically ethical and culturally appropriate
○ Quality