CHAPTER VI

APPLICATION, ENFORCEMENT AND LIMITATIONS

 DOMESTIC APPLICATION OF
INTERNATIONAL HUMAN RIGHTS LAW (IHRL)
 2 THEORIES
MONIST THEORY – International law and domestic law comprise one
legal system. In Absolute monism, international law automatically
becomes law without need to enact a separate national law. Domestic
laws, Including Constitution, that contravene international law, may be
declared invalid.

DUALIST THEORY – International law and domestic law are different

legal systems. International law does not become obligatory to its
citizens until the State passes a corresponding domestic law containing
provisions. The dualist theory is one prevailing in the Philippines.

The Netherlands is considered a monist state. Many States are partly

monist, partly dualists. IHRL dictates domestic laws to conform
international law.
 DUALIST THEORY
The Lex Posterior principle is often resorted to in dualist systems:
“Whichever is the latter law, prevails.”
The Philippines ha signed and ratified most of the important international
Human rights treaties, sans reservations.

Some of the laws passed by the Congress:

RA 7610 Child Abuse Law for Convention on the Rights of the Child
RA 9262 Anti-Violence Against Women and Their Children for
Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW)

Section 2, Article II of the Philippine Constitution contains the

“incorporation clause.” The clause is not necessary in conflict with dualist
attitude. It is specifically limited to the adoption of “generally accepted
principles of international law” as part of the law of the land.
 INTERNATIONAL APPLICATION OF IHRL

SIGNATURE:
Signature to a treaty, however, does not automatically mean consent of a
State to be bound by said treaty, if under the national law, it is the act of
ratification which operates to bind that State. Notwithstanding the
signature, there still must be the process of ratification, acceptance or
approval to be done by the State. Without ratification, the signature may be
operate as a means of authentication and to show the openness of the
signatory State for further discussions on the treaty-making process.
Signature ad refendum means that the signature becomes difinitive
only once the signature only once the signature is confirmed by the state.
Difinitive signature operates as the consent of a State to be bound by a
treaty when that treaty is not subject to ratification, acceptance or approval.
 EXCHANGE OF LETTERS OR NOTES:
Consent can be expressed through exchange of letters or notes. Here,
There will necessarily be two (2) letters, if the treaty is bilateral, with atleast
One (1) from each party.

ACT OF FORMAL CONFIRMATION

Where it is an international organization that intends to be bound by a treaty,
Instead of ratification the term used is usually “act of formal confirmation.”

1) Reservation
2) Interpretative Declaration
3) Modification
4) Denunciation
RESERVATION
A unilateral statement, however phrased or named, made by a State, when
signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effect of certain provisions of the
treaty in their application to that State.

Reservations are not allowed when:

1) It is prohibited by the Treaty;

2) It is not included in the reservations specified by the treaty;
3) It is incompatible with the object and purpose of the treaty.
INTERPRETATIVE DECLARATION
An instrument that is annexed to a treaty with the goal of interpreting
or explaining the provisions of the latter.

MODIFICATION
Is the variation of certain treaty provisions only as between particular
parties of a treaty, while in their relation to the other parties the
original treaty remain applicable. If the treaty is silent on
modifications do not affect the rights or obligations of the other
parties to the treaty and do not contravene the object and the purpose
of the treaty.
DENUNCIATION

Means the withdrawal by a State Party from a treaty.

TREATIES THAT ALLOW DENUNCIATION

CONVENTION ON THE RIGHTS OF THE CHILD (CRC)

INTERNATIONAL COMMITTEE ON THE ELIMINATION

OF RACIAL DISCRIMINATION (ICERD)
COMMITTEE AGAINST TORTURE (CAT)
 TREATIES THAT DO NOT ALLOW DENUNCIATION

INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS (ICCPR)

INTERNATIONAL COVENANT ON ECONOMIC,

SOCIAL AND CULTURAL RIGHTS (ICESCR)

 CONVENTION ON THE ELIMINATION OF ALL FORMS

OF DISCRIMINATION AGAINST WOMEN (CEDAW)
  ENFORCEMENT AGAINST INDIVIDUALS

 DOMESTIC ENFORCEMENT

REVISED PENAL CODE (RPC) Title 2 – CRIME AGAINST

FUNDAMENTAL LAW OF THE STATE – punishes violations of human
rights similar to those guaranteed under the ICCPR.
THE NEW CIVIL CODE – contains provisions on the right to seek
compensation for damages from individual violators.
REVISED ADMINISTRATIVE CODE – provides administrative sanctions
against violators in government service.
 PROTECTIVE WRITS
Writ of Habeas Corpus, Amparo, and
Habeas data.
  INTERNATIONAL ENFORCEMENT

Individuals may be brought to justice before hybrid courts,

ad hoc international courts, or before ICC. In the latter court,
however, its jurisdiction is limited to:

• Crimes of genocide
• Crimes against humanity
• War crimes
• Crimes of aggression
  ENFORCEMENT AGAINST STATES

COURT ACTION
DIPLOMATIC MEANS
RETORSION
COUNTERMEASURE

MILITARY INTERVENTION
  RESTRICTIONS AND LIMITATIONS

States do not have the absolute discretion and prerogative to restrict

the exercise of Human Rights. Their actions must be bounded by
certain parameters and they must take into consideration the
following:

1) There must be a clear provision of the law;

2) The restriction must be specific legitimate purpose;
3) The proportionality test must be applied;
4) The least intrusive measure should be applied; and
5) The law must be strictly interpreted against restriction.
 DEROGATION

Some human rights are non-derogable, and some may be suspended

or restricted by State.
Article 4 of ICCPR allows the derogation of rights provided that:

1) There is a public emergency which treathens the life of the

nation;
2) The existence of public emergency is officially proclaimed;
3) The derogation is to the extent strictly required by the exigencies
of the situation;
4) The measures taken are not inconsistent with the State’s other
obligations under international law
5) The measures taken do not involve discrimination solely on the
ground of race, color, sex, language, religion, or social origin.
The concept of proportionality is used as a criterion of fairness and
justice in statutory interpretation processes, especially in
constitutional law, as a logical method intended to assist in
discerning the correct balance between the restriction imposed by a
corrective measure and the severity of the nature of the prohibited
act. Within criminal law, it is used to convey the idea that the
punishment of an offender should fit the crime. Under international
humanitarian law governing the legal use of force in an armed
conflict, proportionality and distinction are important factors in
assessing military necessity.
Ratification is the official way to confirm something, usually by
vote. It is the formal validation of a proposed law. We almost
never use the word ratification except to talk about process by
which proposed laws, treaties, and agreements are officially
recognized.
 genocide
the deliberate killing of a large group of people, especially those
of a particular ethnic group or nation.
Crimes against humanity are certain acts that are deliberately
committed as part of a widespread or systematic attack
directed against any civilian population or an identifiable part of
a population. The first prosecution for crimes against
humanity took place at the Nuremberg Trials.
war crime
an action carried out during the conduct of a war that violates
accepted international rules of war.
Crime of Aggression is a crime under the Rome Statute of the
International Criminal Court. The definitions and the conditions
for the exercise of jurisdiction over this crime were adopted by
consensus at the 2010 Kampala Review Conference by the States
Parties to the Court.
END OF PRESENTATION

THANK YOU