HUMAN RIGHTS LAW 7.

PERPETUATES WESTERN CULTURAL

IMPERIALISM BECAUSE IT PROMOTES NON-
• HUMAN RIGHTS MAKE MAN HUMAN
FILIPINO VALUES
• No cause is more worthy than the cause of human
8. DISTRESSING BECAUSE IT ONLY TALKS ABOUT
rights. Human rights are more thatn legal concepts.
BAD THINGS AND SOCIAL ILLS
They are the essence of man. They are what make
man human. That is why they are called human Human rights law
rights: deny them and you deny man’s humanity.
• Includes not only the relationship between men and
- By: jose “ka pepe” diokno government, or the civil and political rights of the
people, but extends as well to their economic, social
father of human rights advocacy in
and cultural right, to the right to development and a
the philippines
peaceful and clean environment where they could
• MYTHS AND MISCONCEPTIONS ABOUR HUMAN RIGHTS develop in all facets as human beings.
EDUCATION
• It covers education, employment, health, family,
1. IT IS PRO-COMMUNISM and marriage among others

2. ANTI-STATE/ GOVERNMENT • It covers every individual and does not operate to

protect exclusively only a particular group
3. OVEREMPHASZES PEOPLE’S RIGHTS AND
UNDERMINES THEIR DUTIES AND • 1995-2004 – UN Decade for human rights education
RESPONSIBILITIES
• January 1, 2005 – unga proclamation on the
4. TEACHES PEOPLE TO BE RADICAL, SUBVERSIVE commencement of the world programme for
AND BECOME AN ACTIVIST human rights education

5. FOR LAWYERS AND SCHOLARS BECAUSE IT IS • 2007 – chr issued resolution nos. 12007-028 and
LEGALISTIC AND TECHNICAL a2007-029 urging the ched and law schools to offer
human rights in the Philippine law curriculum
6. A POLITICAL IDEOLOGY USED BY ORGANIZED
GROUPS AND OPPORTUNIST INDIVIDUALS TO • December 19, 2011 – unga adopted the un
ADVANCE THEIR OWN POLITICAL AGENDA declaration on human rights education and training

Comments
CRIMINAL LAW – that branch or division of public law which defines protect and promote human rights at the national, regional and
crimes, treats of their nature and provides for their punishment international levels

Criminal prosecution is pursued by the state, not by the victim of A set of provisions that seek to define what is essential to human
the crime, with the victim taking the role of a witness for the state dignity and life as a human being

Quantum of Proof/ Evidence: Proof beyond reasonable doubt Based in international law and articulated in international treaties
that are negotiated across countries and approved through the
There must be intent to perpetuate the act
United Nations; these treaties are ratified by individual countries
Uses the language “victim”, “offender”, “guilt” and “innocence”
Established as part of the administrative arm of the government in
  that they do not have judicial or law making functions

CIVIL LAW – that branch of law governing the relationship of Uses the language: “Petitioner”, “Complainant”, “Respondent”,
persons in respect of their personal and private interest as “Defendant”
distinguished from both public and international laws (Vitug)
Attention is directed to the nature and effect of the act, thus, unlike
The mass of precepts which determines and regulates those in criminal prosecutions, a violation of human rights can be found
relations of assistance, authority and obedience existing among even where a respondent had no intention to commit the violation
members of a family as well as among members of a society for the
Quantum of Proof: depends on the remedy availed of
protection of private interests (1 Sanchez Roman 70)
General Rule: HRVs are considered as crimes
Concerns private rights
Human Rights Law is Remedial rather than punitive; inquisitorial
Involves a person taking action against another for harm done to
rather than adversarial in nature
them and seeking redress for this harm
Conducted “on the papers”
Quantum of Proof: Preponderance of Evidence
Considers natural justice and procedural fairness and compliance
Uses the language: “Petitioner”, “Complainant”, “Respondent”,
with human rights standards and principles
“Defendant”
Comments:
 

HUMAN RIGHTS LAW – a branch of public law that deals with the
body of laws, rules, procedures and institutions designed to respect,
Article 3 of the UN Declaration on Human Rights Education and 1. To identify, examine and evaluate available
Training states that Human Rights education and training “concerns remedies for victims of human rights violations
all ages” and “all levels” including pre-school, primary, secondary under Philippine laws and international treaties and
and higher education remedies

-current status: the appropriate and formal education and training 2. To promote a culture of human rights and to
on human rights laws in the country are still lacking empower individuals and communities

Many do not know the UDHR, international human rights 3. To enhance the capacity of the students to demand
conventions that were ratified by the Philippines by virtue of which remedies for human rights violations
obligations arise, state responsibilities
4. To institutionalize accountability.
Article 2 of the UNHRE and T
5. To know the core human rights treaties.
“Human rights education and training comprises all educational,
• Sources of human rights jurisprudence
training, information, awareness-raising and learning activities
aimed at promoting universal respect for and observance of all 1. Philippine constitution
human rights and fundamental freedoms and thus contributing to,
inter alia, the prevention of human rights violations and abuses by 2. Legislative enactments
providing persons with knowledge, skills and understanding and 3. Supreme court rules, rulings and orders and executive
developing their attitudes and behaviours, to empower them to issuances
contribute to the building and promotion of a universal culture of
human rights. Comments:

The most effective tool against human rights abuse is EDUCATION. Relevant municipal laws were designed to ensure domestic
compliance. Many of these domestic laws adopt the language and
Aim of the UNHRE and T: to raise awareness, understanding and wording used in the international conventions, if only to emphasize
acceptance of universal human rights standards and principles, as the country’s commitment to follow international standards.
well as guarantees at the international, regional and national levels
for the protection of human rights and fundamental freedoms.
• Construction of human rights instruments

OBjECTIVES (DIOKNO) - Dynamic and continues to evolve

Comments:
The instruments embodying human rights treaties, laws and - Those rights, which are inherent in our nature
principles are “living” instruments that must be interpreted in the and without which we cannot live as human
light of circumstances surrounding and attendant to every case. beings

They should be made adaptable to current societal landscapes. • Chr definition

Example of interpretation: - Are the supreme, inherent and inalienable

rights to life, to dignity AND to self-
Law against trafficking Article 202 RPC
development
-trafficked prostitutes are -trafficked prostitute
• Other definition
Victims liable for prostitution
-the aggregate of privileges, claim, benefits,
Torture vs. Physical injuries entitlements and moral guarantees that pertain to man
because of his humanity. (Rene Sarmiento)

• Concepts
• Interpretation:

1. 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.

2. Where two (2) apparently inconsistent laws can stand

independently, they have to be interpreted in favor of
the validity of both.

• Human rights

• Preamble of the udhr mentions: “inherent dignity

and of the equal and inalienable rights of all
members of the human family

• Rights which necessarily spring from being a

member of the human species
Comments
• United nations definition
Although the rights of men are as old as man himself, the concept Comments: Datus, rajahs. Despotic systems had rulers with vast
of human rights and there protection by the state were unheard of powers, exercising the roles of lawmaker, judge, landowner, people
them. owner, high priest.

Hubris syndrome – power held over a period of time, narcissistic.

Constitutional policy on human rights Kings ordered killings of subjects without hearing their sides, brutal
killings such as burning, mutilation and feeding to wild animals
• Art. Ii, sec. 11 of the 1987 constitution
Slavery,enrich royalty.
“the state values the dignity of every human person
and guarantees full respect for human rights.” Peasants, no human rights.

• Origin of human rights Religious officials yielding to much power in church, in government
and in business.
• Most government systems were despotic in nature.
Monarchs and religious leaders were the absolute authority
• Social order centered on the ruler and the elite,
who for some reasons, tend to develop hubris 1920s – league of nations
syndrome
-the concepts of sovereignty, independence and interdependence
• Society need a government for order and survival were formalized among the members of the family of nations.

• 1800-1900’s – science and education empowered -however, human rights principles were not put into writing, except
more people and made them more critical. for the outlawing of slavery and giving assistance to the sick and the
wounded in times of war
• Many religious educational institutions could be
credited for some of the early stages of human The effects of the wars impelled leaders from different countries to
rights education come together and forge an alliance to maintain world order
through the protection of human rights.
• Trading and mutual assistance leading to organized
governments and economic/ diplomatic relations On June 26, 1945, the charter of the UN was adopted.

• After the two world wars – focus on the issue on December 10, 1948, the UNGA adopted the UDHR
human rights
Dec. 10. 1948 – International Human Rights Day

There are 10 core human rights treaties.

 • Universal

Stages of human rights • fundamental

1. Idealization • Inherent

2. Positivation • Inalienable

3. Realization • Indivisible

Comments: • Interrelated and interdpendent

STAGES OF HUMAN RIGHTS • imprescriptible

  Human rights principles

Idealization – notions about human rights have started in the realm 1. Attention to vulnerable groups
of ideas that reflect a consciousness against oppression,
-children/youth
dehumanization or inadequate performance by the state
-women
Positivization – the second stage where support for the ideas
became strong and the stage is set to incorporate them into some -prisoners
legal instruments, whether domestic law or international law
-senior citizens
Realization – the last stage where these rights are enjoyed by the
citizens of the State by the transformation of the social, economic -indigenous peoples
and political order. -handicapped or differently-abled persons

2. Equality
Basic rights under art. Iii, sec 1 of the 1987 constitution 3. Equity
• Right to life 4. Good governance
• Right to liberty 5. Independence of the judiciary
• Right to property 6. Legislative capacity
Characteristics of human rights 7. Accountability
8. empowerment Example: right to a name, right to form a family, right
to security of persons, papers and effects
9. Indivisibility
• 2. political rights – rights which enable us to participate in
10. Interdependence and inter relatedness
running the affairs of the government either directly or
11. non-discrimination indirectly

12. people’s participation Example: right to vote, right to information on matters of

public concerned and right to initiative and referendum
13. Transparency
3. Economic and social rights – rights which the law confers upon
14. indivisibility the people to enable them to achieve social and economic
Classification of human rights development, thereby ensuring them of their well-being, happiness
and financial security
a. According to source
Example: rights to property, right to education, right to promotion
• 1. natural rights – god-given, unwritten but of social justice
acknowledged by everyone as morally good and
prevail as norms of society 4. Cultural rights – rights that ensure the well-being of the
individual and foster the preservation, enrichment and dynamic
• Example: right to life, liberty and property evolution of national culture based on the principle of unity in
2. Constitutional rights – enshrined in the constitution and cannot diversity in a climate of free artistic and intellectual expression
be removed unless the constitution is amended. c. According to recipient
• Example: right to suffrage, worker’s rights, reproductive • 1. individual rights or rights of man – rights accorded to
rights individuals
3. statutory rights – provided by law, promulgated by law-making • Example: right to life (right to food, right to rest and leisure)
body and therefore may be abolished by the same body
• Right to dignity (rights to recognition everywhere as a
B. ACCORDING TO ASPECTS OF LIFE person, right to freedom and thought, right to religion)
1. Civil rights – rights which the law will enforce at the instance • Right to self development (right to education, right to form
of private individuals for the purpose of securing to them associations, right to share in the cultural life of our
the enjoyment of their means and happiness community
2. Collective rights 7. Rights to freedom from slavery and involuntary servitude

People’s or solidarity rights and rights of society. This are enjoyed 2. Derogable/ relative/ non-absolute rights
only in the company of others
• -these are rights that may be suspended or restricted
Example: right of people to survive (right to peace, right to non-
Examples: right to religion, right to move, right to travel. For a right
transgression, right to share in international trade)
to be restricted, it has to satisfy three (3) conditions:
• Right of people to self-determination (right to freedom from
1. Provided in the law which is made known to every citizen.
all forms of racial discrimination, right to political
independence and freedom from colonialism) 2. There is a state of emergency which necessitates the urgent
preservation of the public good, public safety and public
• Right to develop as a people (rights to freely choose the
moral
goals and means of development, right to implement social
and economic reforms and ensure participation of all people 3. It does not exceed what is strictly necessary to achieve the
in the process and benefits of development) purpose
1. non-derogable or absolute rights – rights that cannot be ACCORDING TO GENERATION
suspended, taken away and restricted/limited even in extreme
emergency. 1. First generation

• d. According to derogability -political and civil liberties

Seven absolute rights of human beings: Negative rights

1. right to life -they prohibit the doing of something

2. Right against torture or cruel, inhuman or degrading “no one shall” rights.
treatment or punishment 2. Second generation
3. Right to recognition everywhere as a person before the law -economic, social and cultural rights
4. Right not to be imprisoned merely on the ground of inability Positive rights
to fulfill a contractual obligation
-enjoin states to perform an act or do something for the enjoyment
5. Right against retroactive penal laws/ ex post facto laws of these rights by the people
6. Rights to freedom of thoughts, conscience and religion
-”state shall” rights

• Developed through the peace-keeping efforts and through 3. Third generation

solidarity of the international community
-protection of the environment
Comments:
-right to development
Generations refer to the order in time when a particular set of rights
-right to live in peace
began to develop and gain the recognition by states.
-solidarity rights
The term generation does not mean that one set or group came
after another set or group, or that the first generation was rendered 4. Fourth generation
obsolete when the second generation emerged.
-control and manufacture and use of weapons of mass destruction
These are not stages of rights. like atomic bombs, chemical and biological warfare
Generation refers to the succession of periods when societies and • At the international level, human rights are often defined,
governments began recognizing a set of rights, though not expressed or guaranteed by law in the form of treaties,
necessarily in the order of man’s priority, for man’s priority was conventions, customary international law, general principles
more economic than political, such as the right to food, etc., a right and other legal instruments
recognized by humans long before governments and rulers came
into being.

Example for the first generation: (ICCPR)

1. Prohibition against searches and seizures • State obligations

2. Interruption of peaceful meetings

3. Undue intervention to the freedom of expression

Example of 2nd generation:

Right to work

Right to education

Right to food
 • Universal declaration of human rights - We should treat each other with a spirit of
brotherhood
• Fundamental constitutive document of the un
• Article 2
• Adopted by the unga on 10 December 10, 1948 in
paris - No discrimination

• First global expression of rights to which all human - We are all entitled to all the human rights
beings are entitled
Comments:
• Arose directly from wwii experience
1. We are all free and equal. We are all born free. We all have
• Most translated document in the world our own thoughts and ideas. We shall be treated in the
same way.
• Comprised of 30 articles setting forth rights
2. Don’t discriminate. These rights belong to everybody,
Comments:
whatever our differences.
First signer and ratifier of the ICESCR (1966), ICCPR (1986)

All other treaties were ratified including the ICARD

• Article 3 - Everyone has the right to life, liberty and security
Except one IC for the protection of all persons from enforced of persona
disappearances (entered into force in December 2010) but not
• Article 4 - No slavery
ratified.
Comments:
Note: Philippines usually signs and ratifies human rights treaties
without reservations or comments. 3. The right to life. To live in freedom and safety.

Membership to the ICC (November 1, 2011) –Miriam Santiago 4. No slavery-past and present. Nobody has any right to make us a
slave. We cannot make anyone our slave.

• Article 1
• Article 5 - No torture, cruel, inhuman or degrading
- All human beings are born free and equal in
treatment or punishment
dignity and rights.
• Article 6 - Everyone should be recognized everywhere as a
person before the law
Comments: • Article 12 - Right to privacy and to reputation

5. Nobody has the right to hurt us or torture us. Comments:

6. We all have the same right to use the law. I am a person just like 11. Nobody should be blamed for doing something until it is proven.
you When people say we did a bad thing we have the right to show it is
not true.

12. Nobody should harm our good name. Nobody has the right to
• Article 7 - We are all equal and entitled to protection
come into our home, open our letters or bother us or our family
against any discrimination
without a good reason.
• Article 8 - For violations, you have legal remedies

Comments
• Article 13 - Right to freedom of movement and residence
7. The law is the same for everyone. It must treat us all fairly.
• ARticle 14 - Right to seek asylum
8. Fair treatment by fair courts.
Comments:

13. We all have the right to where we want in our country and
• Article 9 - No arbitrary unrest, detention or exile. Need legal to travel as we wish.
cause
14. If we are frightened of being badly treated in our own
• Article 10 - Right to a fair trial country, we all have the right to run to another country to be
safe.
Comments:
• Article 15 - Right to a nationality and to change his
9. Nobody has the right to put us in prison without a good reason nationality
and keep us there, or to send us away from our country.
• Article 16- Right to marry. Marriage needs consent. Family is
10. If we are put on trial this should be in public. The people who protected.
try us should not let anyone tell them what to do.
Comments:

15. We all have the right to belong to a country.

• Article 11 - We are presumed innocent until proved guilty by
legal means
16. Every grown up has the right to marry and have a family if they • Article 21 - Right to take part in government and equal
want to. Men and women have the same rights when they are access to public service
married, and when they are separated.
• Article 22 - Right to social security and economic, social and
cultural rights

• Article 17 - Right to own property. / No arbitrary Comments:

deprivation.
21. The right to democracy. We all have the right to take part in the
• Article 18 - Right to freedom of thought and religion government of our country. Every grown up should be allowed to
choose their own leaders.
Comments:
22. We all have the right to affordable housing, medicine, education
17. Everyone has the right to own things or share them. Nobody
and child care, enough money to live on and medical help if we are
should take our things from us without good reason.
ill or old.
18. We all have the right to believe in what we want to believe, to
have a religion or to change it if we want.
• Article 23 - Right to work, just and equal pay, form trade
union
• Article 19 - Right to freedom of expression and opinion
• Article 24 - Right to rest and leisure, holidays with pay
• Article 20 - Freedom of peaceful assembly and association
Comments

23. Worker’s rights. Every grown up has the right to do a job, to a

Comments: fair wage for their work, and to join a trade union.

19. Free to say what we want. We all have the right to make up our 24. The right to play. We all have the right to rest from work and to
own minds, to think what we like, to say what we think, and to relax.
share ideas with other people.

20. Meet where you like. We all have the right to meet our friends
• Article 25 - Right to standard of living, social services,
and to work together in peace to defend our rights. Nobody can
protection for all children
make us join a group if we don’t want to.
• Article 26 - Right to education
 Comments 30. Nobody can take away these rights and freedoms from us.
(Youth for Human Rights International)
25. A bed and some food. We have all have the right to a good
life. Mothers and children, people who are old, unemployed or
disabled, and all have the right to be cared for.

26. Education is a right. Primary school should be free. We

• SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW
should learn about the UN and how to get on with others. Our
parents can choose what we learn. 1. International conventions

2. International custom, as evidence of a general practice

accepted as law
• Article 27 - Right to cultural life, copyright
3. General principles of law recognized by the community of
• Article 28 - Right to a world where all rights can be realized
nations
Comments
4. Judicial decisions and the teachings of the most highly
27. Copyright is a special law that protects one’s own artistic qualified publicists
creations and writings; others cannot make copies without
International agreements
permission. We all have the right to our own way of life and to
enjoy the good things that “art”, science and learning bring. • Commonly known as “treaties”
28. A free and fair world. There must be proper order so we can • Officially called conventions or covenants
all enjoy rights and freedoms in our country and all over the
world. • Protocol

Comments:

• Article 29 - Everyone has duties to the community for The Vienna Convention on the Law of Treaties
human rights Treaty – a legally binding written agreement concluded between
• Article 30 - No one can take our human rights states

Comments Protocol – a supplement or subsequent agreement relative to an

existing treaty
29. Our responsibilities. We have a duty to other people and we
should protect their rights and freedoms.
A state’s consent to be bound by a treaty is expressed through • International Convention for the Protection of All
ratification, approval or acceptance. The act of merely signing a Persons from Enforced Disappearance
treaty is not enough to bind the State. Once a treaty is ratified, the
INTERNATIONAL CUSTOMARY LAW
State is bound to faithfully comply with its treaty obligations under
the doctrine of “pacta sunt servanda”. • Objective element
In human rights treaties there can be liability in the absence of bad • Subjective element
faith.
• Jus cogens

• Obligatio erga omnes

NINE CORE INTERNATIONAL HUMAN RIGHTS TREATIES AND
CONVENTIONS • Universal jurisdiction

• International Covenant on Civil and Political Rights • Actio popularis

• International Covenant on Economic, Social and Comments

Cultural Rights Objective element – acts amounting to settled practice of states
• Convention on the Rights of the Child Subjective element – a belief that this practice is rendered
• Convention on the Elimination of All forms of obligatory by the existence of a rule of law requiring it (opinion of
Discrimination against women law or necessity)

• Convention against Torture and other cruel, degrading Jus cogens (compelling law) – superior to other sources of
or inhuman treatment or punishment international law

• International Convention on the protection of the rights - need not be agreed upon by States in a treaty
of all Migrant Workers and their Members of their inorder to form part of their juris
families elements:
• Convention on the Rights of Persons with Disabilities 1. It is a peremptory norm of general international law.
• International Convention on the Elimination of all forms 2. it is accepted and recognized by the international
of Racial Discrimination community

3. there can be no derogation therefrom

 4. it can be modified only by a subsequent norm of general Pang kontra: ICC, ICJ
international law having the same character.
Actio popularis: Prosecution of jus cogens crimes may be initiated
Risk: difficulty in determining what is the norm (usual, typical, by another person or group of persons for the benefit of
standard) due to different cultural influences and standards to
another through a complaint action popularis
determine what is peremptory norm
- a rule procedure in bringing a suit on another’s behalf
. Universally accepted norms: rights against slavery, genocide,
maritime piracy, torture, war of aggression and racial Who can file: NGO’s of good standing in the international
discrimination., non-use of force community may be allowed to sue for and in behalf of the victims
who
Obligatio erga omnes – latin meaning towards all, towards everyone
do not have the means to do so.
-obligations that are owed by states to all/ to the
international community, regardless of the presence or absence of
their assent to be bound thereby.

-intertwined with jus cogens and arise from jus cogens

rights. General principles of law

-trade violations/ bilateral agreement –not erga omnes • Unwritten and uncodified concepts from which
laws are based
-human rights violations – erga omnes… owed by the State
to the community of States • The incorporation clause

International crimes – jus cogens Comments:

State shall prevent and prosecute – erga omnes A principle of law may evolve from local or municipal jurisprudence
of a State which is adopted by other states, from teachings and
Universal Jurisdiction – if a right is jus cogens and erga omnes, refer publications, and from works of experts.
to UJ.
Ex. Yogyakarta principles on LGBT but di pa kilala and accepted.
-example. A state may prosecute a crime committed Matatanggap lang siya ng ibang regions sa buong mundo.
elsewhere if such a crime is a jus cogens crime.
The incorporation clause, section 2, art. 2
Risk and difficulty: It is deemed an intervention of a State’s
sovereignty over its citizens The Philippine constituition adopts the generally accepted principles
of international law as part of the law of the land.
Meaning : the Philippines has the obligation to observe generally -it has jurisdiction in 2 cases:
accepted principles of international law not only as customary law
a. Contentious cases – cases submitted by
but because of the express provision of the incorporation state members of the UN
clause
other states which are
parties to the statute of the court

Judicial decisions and teachings which have accepted its

jurisdiction
• International case law
b. Advisory proceedings – requests for advisory
• Teachings of jurists and publicists
opinions on legal matters submitted by UN organs and specialized
Comments: agencies

Recognized as a subsidiary means for the determination of rules of -composed of 15 judges, who are elected for terms of office
law under article 38 of the Vienna Convention on the Law on of nine (9) years by the UN General Assembly and the Security
Treaties Council

May consist of judgements of international tribunals, the regional -assisted by its administrative organ known as the Registry
courts and even domestic courts.
-individuals do not have a jus standi to bring a complaint
1. International and regional tribunals before the ICJ, they may be beneficiaries of such suit, which can be
brought in their behalf by a state
a. International Court of Justice – principal judicial organ of the
UN org. In the case of the Barcelona traction case, ICJ laid down 2 important
doctrines:
- established June 1945
1. A state can bring the case for the benefit of a corporation
-based in the Hague, the Netherlands (Legal Capital of the
World) 2. it made an obiter dictum recognizing and expanding the
meaning of erga omnes obligations
- the only UN organ located outside New York, USA where
the UN has its headquarters b. International Criminal Court

-only member states may lodge complaints, individuals not - a court created by the Rome Statute of the International
recognized Criminal Court on July 17, 1998
 -also based in the Hague e. Hybrid or International courts

-an independent permanent international criminal court -mix of domestic and international, both in the judges and staff as
well as the laws applied, integrated in the domestic judicial system
-court of last resort
or appended to it.
-will only try cases after the exhaustion of remedies before
Example. Special Court for Sierra Loeone
domestic courts and only for the gravest offenses
Special Panels of serious crimes – east timor
-Cases to be tried:
Teachings example: (subsidiary means) international laws of armed
a. crimes against humanity such as terrorism
conflict, the declaration of the Russian delegate Fyodor Fyodorovich
b. war crimes (military) Martens to the 1989 Hague Convention on the Laws and Customs of
War on Land became a guiding principle of sorts in determining how
c. genocide states should conduct themselves during wartime when there are
d. crimes of aggression no specific rules enacted which apply to the situation

c. Ad Hoc criminal tribunals

International Criminal Tribunal of the former Yugoslavia International bill of rights

INTERNATIONAL criminal tribunal for Rwanda • UDHR

Tokyo Tribunal • ICCPR

Nuremburg Tribunal • ICESCR

d. Regional Courts Application, enforcement and limitations of international human

rights laws
European Court of Human Rights (EC + HR)
• Theories
Inter American Court of Human Rights
1. Monist theory
African Court of Human and People’s Rights
2. Dualist theory
No Asian Human Rights court yet (Asean Human Rghts
Commission) Comments:
 1. MONIST THEORY – International law and domestic law • The consent of a state to be bound by a treaty may be
comprise one legal system expressed by signature, exchange of instruments
constituting a treaty, ratification, acceptance, approval or
- in absolute monism, international law automatically
accession, or by any means, if so agreed.
becomes domestic law without need to enact a separate national
law. Signature to a treaty

- domestic laws including the constitution, that contravene • Not automatic

international law, may be declared invalid
• Depends on what is written in the national law
-example: Netherlands
Comments:
2. DUALIST THEORY – International Law and Domestic Laws are
If the national law states that the act of ratification which operates
different legal systems.
to bind the state, then this must be followed.
- international law does not become obligatory to
Without ratification, the signature may only operate as a
its citizens until the state passes a corresponding domestic law
means of authentication and to show the openness of the signatory
containing its provisions.
state for further discussions on the treaty making process.
- at times local laws are considered more binding and
SIGNATURE AD REFERENDUM – the signature becomes definitive
superior by judges and legal practitioners
only once the signature is confirmed by the state
- most times, local laws are revisited and amended to
DEFINITIVE SIGNATURE – operates as the consent of a state to be
conform to international law, but until such amendment, the local
bound by a treaty when that treaty is not subject to ratification,
laws remain valid, although this could be a possible violation by the
acceptance or approval.
stae of its treaty obligations

LEX POSTERIOR PRINCIPle – whichever is the latter law

prevails Exchange of letters or notes
Philippines: its treaty obligations are usually taken into • 2 letters – if the treaty is bilateral
consideration in the enactment of laws
Act of formal confirmation

• International organization intends to be bound by a treaty,

International application of IHRL instead of ratification
Comments: - CRC, ICERD and CAY allow denunciation

State parties may be allowed to limit, restrict or modify the - ICCPR, ICESCR and CEDAW do not allow
application of a treaty by: denunciation

1. Reservation

- A unilateral statement where the state purports to Enforcement mechanisms

exclude or to modify the legal effect of certain
• Enforcement against individuals
provisions of the treaty in their application to that
state: • Domestic enforcement
Not allowed when: • International enforcement
a. It is prohibited by the treaty Comments:
b. It is not included in the reservations specified by the - Enactement of national laws
treaty.
- -Revised Penal Code and other penal statutes
c. It is incompatible with the object and purpose of
the treaty - New Civil Code

2. Interpretative Declaration – an instrument that is annexed to a - Revised Administrative Code

treaty with the goal of interpreting or explaining the provisions of - Protective writs – writ of habeas corpus, amparo and
the latter. habeas data
3. Modification – variation of certain treaty provisions only as - - restraining orders
between particular parties of a treaty, while in their relation to the
other parties the original treaty provisions remain applicable - International enforcement – before hybrid courts,
ad hoc international courts or before the ICC = all
If the treaty is silent on modifications, they are allowed only if the criminal courts
modifications do not affect the rights or obligations of the other
parties to the treaty and do not contravene the object and the - Enforcement
purpose of the treaty

4. Denunciation – withdrawal by a state party from a treaty • Enforcement against states

 • court action - Iraq, no authority

• Diplomatic means

• Retorsion

• Countermeasures

• Military intervention

Comments:

1.Court action – ICJ = state vs. state

- ICC = heads/ individuals vs. states

2. Diplomatic means

-negotiations and dialogue

-states whose nationals have been victims of human rights

violations by another state may opt to avail this.

3. Retorsion

- withholding of foreign assistance (US) or stoppage of oil

imports (Oil producing countries)

- these are unfriendly acts which do not necessarily

constitute violations of the rights of the offending state

4. Countermeasures

- responses by a State to the wrongful conduct of another,

as a tool of self-redress

5. Military internvention

- use of armed forces Libya 2011 thru UN Resolution