Human Rights Reviewer (Finals)

Pointers:
A. Nature of International Human Rights Law
(Lecture)
Two views of Conception
1. Orthodox (Philosophical)
2. Practical (Political)
Orthodox
defines human rights
as those rights that
each human has
against every other
the virtue of
humanity.
-more familiar in
philosophical sense
-inherent, inalienable

Practical
human rights define
a boundary of
***legitimate
political action

2) Set terms, provisions, conditions,

and proposals through the
President/ Chief Executive
3) Concluded agreement will be
SIGNED by the Heads of the State
Implication: Signing is mere expression
of intention to be bound by the
agreement
Obligation: to undergo procedure on
respective countries
In PHILIPPINES: Treaties of any kind
require concurrence of the Senate, i.e.
2/3 votes of ALL members of Senate
b. Doctrine of PSS and CRSS

-more familiar in
political sense
-not ideal

*** legitimate political action

- The STATE as state actors/ agents
guarantee Human Rights
- Practical view in HR specify how the
state actors must and must not act
toward their citizens
- Any HR violation can be demanded
against the State through interference by
the international community

1) Doctrine of pacta sunt servanda

- Compliance with international law that
agreement must be kept
- It entitles the State to require obligations
be respected and to rely upon the
obligations being respected
2) Doctrine of clausula rebus sic stantibus
- Legal principle which allows for treaty
obligations to be unfulfilled due to a
FCIC (fundamental change in
circumstances)
Q: What constitutes FCIC?
A:
- Must be something that was never
contemplated
- It should have resulted in a radical
transformation of the | extent of the
obligations imposed

B. Sources of International Human Rights Law

(Lecture + Petralba pp.28-39) [tig-jd]
1.
2.
3.
4.

Treaties/International Agreements
International Customary Law
General Principles of Law
Judicial Decisions and TMHQP
c.

1.

Treaties/International Agreements
- Commonly treaties
- Entered into between sovereign states
who agreed to bind themselves
bilaterally the undertaking to faithfully
comply with the provision of State
- Agreed by sovereign for common
CAUSE

Cases
Prefect of La Gironde v Mahmedi
-

a.
-

How treaties are made

1) Delegation of States
Conference Conventions or the event
meeting of States

Human Rights Law REVIEWER| ATTY. BAYON

UC Law 2A 2016 | Ezra Ramel

French government suspended a

clause in an international treaty with
Morocco which exempts the
Moroccan nationals from VISA
requirements.
This was done on the ground of a
FCIC of the wave of terrorist attacks
in Paris

UK v Iceland
-

The advancement of fishing

machineries of UK is not an FCIC
since there is already contemplation
of improvement

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2.

2 views
1) Permissive view does not lay total
ban on the use of force; permitted to
use of force in:
(1) anticipation of future attack
(2) rescue nationals abroad
(3) humanitarian intervention
(4) regime change (intervention for
democracy
2) Restrictive View total ban on the use
of force except:
(1) *self-defense (Art 51; Charter)
(2) enforcement action (Chapter VII;
Charter)

Germany v Iceland
the change of circumstances alleged
by Iceland cannot be said to have
transformed radically | the extent of
the jurisdictional obligation imposed
the dispute relating to an extension
of Icelandic fisheries jurisdiction is
exactly of the character anticipated
in the compromissory clause of the
Exchange of Notes

International Customary Law

a. Requisites
1) Objective element settled state
practice
2) Subjective element belief that
the settled practice is obligatory
Practice: must be:
1. uniform and consistent
2. participation is widespread and
representative
North Continental Shelf
- Principle of equidistant

Basic rule: threat or use of force is

prohibited
XPN: self-defense
Force armed force and not other
means of political or economic pressure
Nicaragua v. USA - Indirect use of force
is also prohibited
Threat of force also prohibited;
ultimatum announcing recourse to
military measures

b. Jus cogens or peremptory norm

-

compelling law which is superior to

all sources of human rights

Requisites of jus cogens [pard-mo]

1) It must be a peremptory (nonderogable) norm of general intl law
2) It must be accepted and recognized
by international community
3) There must be no derogation
permitted
4) It can only be modified by a
subsequent norm of general intl law
of the same character

Nicaragua v US

Nicaragua claimed that US used armed force

by laying mines in Nicaraguan waters and
that US gave assistance in Nicaraguan
guerillas (contras) to overthrow the
Nicaraguan government
US argued that its activities was justified as
collective self-defense in response to
Nicaraguas act of supporting the rebels in El
Savador (friendly country of US)

c. Principle of non-use of force

Art. 2.4 of Charter of the UN
All Members shall refrain in their
international relations from the threat or
use of force against the territorial
integrity or political independence of any
state, or in any other manner
inconsistent with the Purposes of the
United Nations.

Human Rights Law REVIEWER| ATTY. BAYON

UC Law 2A 2016 | Ezra Ramel

*Self Defense Art 51; UN Chapter

The right of individual or collective selfdefense is restricted in an armed attack
occurs
Nicaragua v. USA armed attack must
be understood to include the sending
by/on behalf of a State of armed bands
or groups of such gravity that amount
to actual armed attack conducted by
regular forces

Ruling:
> 1. mere supply of funds to the contras,
while undoubtedly an act of
*intervention in the internal affairs of

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FORBIDS all States to intervene directly or

indirectly in internal/external affairs of other
States
>>note: intervention is wrongful when it uses
methods of coercion (coercion is present in
case; direct form military action; indirect
form support for subversive
groups/terrorist)

>2. Use of force is NOT ALLOWED

except the right of self-defense

3 criteria of self-defense
(1) armed attack; (2) necessity of selfdefense; (3) proportionality
In case of collective self-defense, the 3
criteria + request by the victim of
armed attack

3.

Nicaragua, does not in itself amount to

use of force
>>note: principle of non-intervention

Pretty v UK (2002)
- Right to life could not be interpreted
as conferring a right to die
- States must refrain from the
unlawful taking of life and
- State shall take appropriate steps to
safeguard lives
- Right to life is not corollary to the
right to die
Purdy v UK (2014)
- Right to be respected of her life

General Principles of Law

- Art 38(1) of Statute of ICJ- The Court, whose
function is to decide in accordance with
international law such disputes as are
submitted to it, shall apply:
a. international conventions, whether general
or particular, establishing rules expressly
recognized by the contesting states

General principles recognized by

States
Principles of municipal law should be
regarded as sources of inspiration rather
than as sources of rules of direct
application

Human Rights Law REVIEWER| ATTY. BAYON

UC Law 2A 2016 | Ezra Ramel

4.

Judicial Decisions and TMHQP

- TMHQP Teachings of the most highly
qualified publicists of the various
nations
- can be referred to, not as a source of law
as such, but as a means of recognizing
the law established in other sources
- There is no rule of stare decisis in
international law. The decision of the
Court has no binding force except
between the parties and in respect of
that particular case but it may refer to its
past decisions and opinions.

1.
-

2.

3.

C. The International Bill of Rights

(Petralba, pp.40-79)
UDHR
Universal Declaration of Human Rights
declaration adopted by the UN General
Assembly
ideal standard held in common by
nations around the world, but it bears
no force of law.
is a fundamental constitutive document
of the United Nations
widely cited in protecting the
recognized human rights
ICCPR
International Covenant on Civil and
Political Rights
multilateral treaty adopted by the UN
GA
It commits its parties to respect the civil
and political rights of individuals
ICESCR
International Covenant on Economic,
Social and Cultural Rights
multilateral treaty adopted by the UN
GA
It commits its parties to work toward
the granting of economic, social, and
cultural rights (ESCR) to the Non-SelfGoverning and Trust Territories and
individuals

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4.

Rights and Freedoms

ICCPR
ICESCR
[led-fair]

[LHEL]

1. right to life,
2. electoral rights
3. rights to due
process
4. right to a fair
trial

1. labor rights
2. right to health
3. right to
education
4. right to an
adequate
standard of living

Ex.
ECHR
Prohibition on
torture and
slavery
Non-retroactivity
of laws

Inter-American
CHR
Prohibition
against slavery
and torture
Prohibition
against ex post
facto law

1.freedom of
religion
2. freedom of
speech
3. freedom of
assembly
D. Basic Principles
(Lecture)
1. Domestic Jurisdiction
States have no right to encroach on
another States internal affairs

Based on principle of Equality and

Sovereignty State is free to choose any
political, econ, soc and cultural system
whatever it likes

& based on principle of nonintervention

forbids all States to intervene D/I in
internal/external affairs of other States
2.

The Exhaustion of Domestic and Local

Remedies Rule
It prevents any litigant from seeking
recourse from international mechanisms
until all remedies have been exhausted
or settled within the State.
Litigant is not necessary required to
bring up the case to the Intl Court

case should be submitted first within

States decision because of States
Sovereignty
3.

Priorities of Rights
- relates to the non-derogability of rights
which rights occupy the PRIMARY
POSITION of hierarchy of rights

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UC Law 2A 2016 | Ezra Ramel

Clawback clauses/ limitations

- absolute rights are however subject to
exceptions
E. The United Nations' Main Bodies /
Principal Organs
(Lecture)
1. United Nations
- international body
- composed by community of nations
- 193 member States
- Founded in 1945 (Sec Gen Ban
Kichmoon)
2.

Principal Organs
1) GA
2) SC
3) EcoSoc Council
4) Trusteeship
5) Intl Court of Justice The Hague
(Netherlands)
6) Secretariat
1)
-

General Assembly
deliberative policy-making
representative of the UN System
setting the Standards of Laws and
codification of laws

2) Security Council (SC)

- promotion/maintenance of peace
and security
- peaceful settlements of disputes
3) Economic and Social Council
(EcoSoc)
- of UN Council
- provides the 3 dimensions of
Sustainable Development (econ, soc,
envi)

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4) Trusteeship Council
- Ensures trust territories (colony) not
capable of self-governance by being
administered by another Sovereign
State (UN TC)
- To promote the advancement of
habitants
- Achieve the aim of independence
and self-governance
- NOTE: TC is suspended in Nov 1,
1994; Palau last trustee

5) Intl Court of Justice The Hague

(Netherlands)
- PRIMARY judicial arm/ organ of
the UN
6) Secretariat
- ADMINISTRATIVE arm of UN in
its day to day event

1.

F. The United Nations System

(Lecture)
The Protection of the collective rights
of groups and individuals
purely
individual

- Right to life
- Freedom of
expression

individual but
necessarily
expressed
collectively

- Freedom of assembly

purely
collective rights

- Freedom to self-

(necessarily need
another)
- Freedom to manifest
ones belief
determination

- Freedom to be
protected to the
prohibition of
genocide
collective &
manifestation
of individual
rights

2.
-

- Freedom to express
ones culture,
language, religion
= ethnic minorities

Prohibition of Genocide (Read also:

Protected or Victim Groups)
Convention Prevention on Prohibition
on the Crime of Genocide

Human Rights Law REVIEWER| ATTY. BAYON

UC Law 2A 2016 | Ezra Ramel

Genocide
- any of the following acts committed
with intent to destroy, in whole or
in part, a national, ethnical, racial or
religious group, as such:
1) Killing members of the group;
2) Causing serious bodily or mental
harm to members of the group;
3) Deliberately inflicting on the group
conditions of life calculated to bring
about its physical destruction in
whole or in part;
4) Imposing measures intended to
prevent births within the group;
5) Forcibly transferring children of the
group to another group
The term as such has great
significance, for it shows that the offence
requires intent to destroy a collection of
people who have a particular group
identity
Heart of the crime: desctruction of
groups
PROTECTIVE GROUPS
- The law protects four groups - national,
ethnical, racial or religious groups.
(defn: Akayesu case)
1) national group - collection of people
who are perceived to share a legal
bond based on common citizenship,
coupled with reciprocity of rights
and duties
2) ethnical group - generally defined
as a group whose members share a
common language or culture
3) racial group - based on the
hereditary physical traits often
identified with a geographical
region, irrespective of linguistic,
cultural, national or religious factors
4) religious group - one whose
members share the same religion,
denomination or mode of worship

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3.

The Prohibition of Racial

Discrimination
1965 UN International Convention on
the Elimination of All Forms of Racial
Discrimination defines:
Racial Discrimination - shall mean any
(derp)- rcde
>distinction, >exclusion, >restriction, or
>preference based on
race, colour, descent, or natl ethnic origin

or that has the purpose of the

nullifiying &
impairing the
Recognition
Exercise
of
Enjoyment

1. HR or
2. Fundamental
freedom of
PECSCr or any
other field of
public life

Art 2(1) of ICCPR

State party shall respect & ensure the
individuals its rights preset in the covenant
without distinction of any kind, such as
race, colour, sex, language, religion, political
or other opinion, national or social origin,
property, birth or other status.
Art 26 of ICCPR
All persons are equal before the law and are
entitled without any discrimination to the
equal protection of the law.
Any discrimination is prohibited
All persons shall be guaranteed equal and
effective protection against discrimination
on any ground such as race, colour, sex,
language, religion, political or other opinion,
national or social origin, property, birth or
other status.

Ex. Kosovo by disassociating the

group from the State they belong to

5. The Protection of Minorities

Minorites
- They are treated as minority
because: (2 views)
1) Outsider-looking in concept
- Groups does not belong to the
mainstream
2) Insider-defining concept
- See themselves as minority

Lovelace v Canada
- Their right to be protected was
violated
- State should not prevent them from
their enjoyment of their culture
Art. 27 of ICCPR
In those States in which ethnic, religious or
linguistic minorities exist, persons
belonging to such minorities shall not be
denied the right, in community with the
other members of their group, to enjoy their
own culture, to profess and practice their
own religion, or to use their own language.

4.

The Principle of Self-Determination (2

Expressions)
Self-determination
- Purely collective right
2 Expressions
1) Internal Kind
- SD within the realms of State
- Ex. BBL by asserting its group as
distinct from the Other
2) External Kind
- People as a group desires to
establish their own State

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G. The International Criminal Court (ICC)

1.

Four Organs and their Divisions

(Lecture)

Human Rights Law REVIEWER| ATTY. BAYON

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2.

Jurisdiction of ICC and some

Exceptions (Lecture)
Art 5 of the Rome Statute

4 principles that must concur

a. Ratione materiae (what)
b. Ratione temporae (when)
c. Ratione soli (where)
d. Ratione personae (who)
e. + How
f. + notice
a.
-

Ratione materiae (what)

Cases that fall under jurisdiction of ICC
that is, most heinous/ serious crimes
concerned to ICC as a whole
1) Genocide
- See Genocide section
2) Crimes against Humanity
- Widespread/systematic attack
against civilian
3) War Crimes
- Violation of provisions in Geneva
Convention
4) Crimes of Aggression
- not defined in Rome Statute
- (2010) Review Conference Kampalla
Amendment
- Any initiation, planning,
preparation or execution of acts
resorting to the illegal use of armed
forces
threatening the sovereignty,
territorial integrity or political
independence of another State

b. Ratione temporae (when)

- Crime that are alleged to be committed
after July 1 2002 fall under ICC
- Any case before July 1, 2002 cant be
taken cognizance by ICC
- On the 1st day of the month following
the 60th day of deposit

Human Rights Law REVIEWER| ATTY. BAYON

UC Law 2A 2016 | Ezra Ramel

c.
-

Ratione soli (where)

Principle of territoriality

1.a Crime is
committed in territory
of State party (SP)
1b. Crime is
committed in territory
of SP (not ratifying
State) but accepted the
jurisdiction of ICC
2a. If the person who
committed the crime is
a citizen of the SP
2b. If the person who
committed the crime is
NOT a citizen of the
SP
>(2b)If the person who
committed the crime is
NOT a citizen of the
SP and
>does not recognized
the juri of ICC
>crime is committed in
the territory non-SP

Jurisdiction
of the ICC

d. Ratione personae (who)

- Citizen of SP
+
e. (5.) How 3 ways
1) Initiated by the Prosecutor himself
2) SP initiates the investigator/
prosecution of the case
3) Victim: when it initiates, the case
goes to Pretrial Chamber to assess
WoN the alleged crime is cognizable
by the ICC
If the 4Ws concur, the Pretrial
Chamber will transmit to prosecutor

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 Q: If a State is not party, is there no way

for it to be brought in the ICC? also not
citizen of the SP
A: Yes, (xpn) When the situation of the
case is referred to Office of the
Prosecutor by the UN Security Council
- NOTE: UN Security Council - responsible
for promotion of advancement and
preservation of peace
If the case is referred to UN Security
Council, theres no need Ratione Soli to
be complied
- Chapter 7 of the UN Charter
- Acts that threaten peace and security of
breaches of Peace or Acts of Aggression
- Not needed that he is citizen of SP
f. (6) Aside from 4Ws, NOTICE is very
important to be issued to the State Party &
the alleged perpetrator.
Key Feature of the JCC
Complementarity
Basic rule in Intl Humana Rights
Law
Seeming violation of crime that is
widespread and systematic attack
Not directed to ICC first BUT first
tried in National Laws
o Doctrine of Exhaustion of
Remedies
o Principle of Complementarity
- National Courts: Natl Laws
ICC: Court of Last Resort

State decided not to prosecute the case

through Decision/ Resolution
ex. theres no probable cause
3) There is trial on accused/
perpetrator XPT if there is showing
that the conducted hearing was:
a. Trial is perfunctorily conducted
- Just to show that the conduct of
trial was complied with to save
the perpetrator from Criminal
responsibility in the ICC
b. The judges were impartial/ lack
of independence

ICC can send its members in other State

for proper administration of justice

3.

Concept of Superior/ Command

Responsibility (Petralba, pp. 137-138)

Doctrine of Greatest Responsibility

- One who has the greatest responsibility
for the crime committed will be brought
in the ICC

Case will be outright inadmissible by

ICC if not exhausted remedies
Instances: [PAp-Tpi]
1) Prosecution stage at SP
XPN: showing Natl Prosecutor/
Investigator is unwilling. Unable to
properly investigate/ prosecute
- matter of proof and require
cooperation of NGO,
Intergovernmental Entities or other
concerned agencies
2) Case already properly
prosecuted/investigated

Human Rights Law REVIEWER| ATTY. BAYON

UC Law 2A 2016 | Ezra Ramel

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