Lesson 2: INTERNATIONAL HUMAN RIGHTS LAW

Lesson 2.1: SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW

Sources of International Human Rights Law

According to Article 38(1) of the Statute of the International Court of Justice, the sources
of international human rights law are:

1. International Conventions/Agreements/Treaties
Treaty is a legally binding written agreement concluded between States.

2. International custom, as evidence of a general practice accepted as law

To be considered international customary law, there must be:
a. The objective element of acts amounting to “settled practice” of States; and,
b. The subjective element consisting of a “belief that this practice is rendered obligatory
by the existence of a rule of law requiring it”.

Jus Cogens or peremptory norm is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted and which
can be modified only by subsequent norm of general international law having the same
character.

Obligatio erga omnes or obligations erga omnes are obligations that are owed by States to all,
regardless of the presence or absence of their assent to be bound thereby. These obligations
are intertwined with the concept of jus cogens and usually arise from jus cogens rights.

3. General principles of law recognized by the community of nations

General principles of law are unwritten, and uncodified concepts from which laws are based. A
principle of law may evolve from local or municipal jurisprudence of a State which is adopted by
other States, from teachings and publications, and from works of experts.
The Philippine Constitution (Sec 2 Art II) adopts the generally accepted principles of
international law as part of the law of the land. This is referred to as the “incorporation clause”.

4. Judicial decisions and the teachings of the most highly qualified publicists.
International judicial decisions or case law may consist of judgments of international tribunals,
the regional courts and even domestic courts, although international tribunals rarely look to
decisions of domestic courts in ruling international dispute.
Numbers 1 to 3 are considered as the principal sources of international law while number 4 is
considered as a subsidiary means for the determination of rules of law.
 Lesson 2.2: INTERNATIONAL BILL OF RIGHTS

The Universal Declaration of Human Rights (UDHR) On 10 December 1948, the United
Nations General Assembly (UNGA) adopted and proclaimed the Universal Declaration of Human
Rights. It called upon all Member countries to publicize the text of the Declaration and to cause
it to be disseminated, displayed, read and expounded principally in schools and other
educational institutions, without distinction based on the political status of countries or
territories.
The UDHR is the world’s primary human rights instrument. It is a milestone document in
the history of human rights. Drafted by representatives with different legal and cultural
backgrounds from all regions of the world, the Declaration was proclaimed by the United
Nations General Assembly in Paris on 10 December 1948 by General Assembly resolution 217 A
(III) as a common standard of achievements for all peoples and all nations thus it is not a treaty.
It sets out, for the first time, fundamental human rights to be universally protected. Since its
adoption in 1948, the UDHR has been translated into more than 500languages - the most
translated document in the world - and has inspired the constitutions of many newly
independent States and many new democracies.

The International Covenant on Civil and Political Rights (ICCPR)

The International Covenant on Civil and Political Rights and its First Optional Protocol
entered into force in 1976. The Second Optional Protocol was adopted in 1989. The First
Optional Protocol provides for the jurisdiction of the Human Rights Committee to receive and
consider communications from individuals who claim to be victims of human rights violations
set forth in the ICCPR. The Second Optional Protocol pertains to the abolition of death penalty
which was effected by the Philippines when it passed RA 9346 abolishing death penalty in the
country.
The Covenant deals with such rights as freedom of movement; equality before the law;
the right to a fair trial and presumption of innocence; freedom of thought, conscience and
religion; freedom of opinion and expression; peaceful assembly; freedom of association;
participation in public affairs and elections; and protection of minority rights. It prohibits
arbitrary deprivation of life; torture, cruel or degrading treatment or punishment; slavery and
forced labor; arbitrary arrest or detention; arbitrary interference with privacy; war propaganda;
discrimination; and advocacy of racial or religious hatred.

International Convention on Economic, Social and Cultural Rights (ICESCR)

The International Convention on Economic, Social and Cultural Rights entered into force
in 1976. The human rights that the Covenant seeks to promote and protect include: the right to
work in just and favorable conditions; the right to social protection, to an adequate standard of
living and to the highest attainable standards of physical and mental well-being; the right to
education and the enjoyment of benefits of cultural freedom and scientific progress.

Rights and Freedoms Under the International Bill of Human Rights

 All human beings are entitled to these rights and freedoms regardless of race, sex,
nationality, ethnicity, language, religion, or any other status.

1. Equality in dignity and rights.

- Regardless of sex, race, religion, status in life or political beliefs, every human is entitled to his
rights. This however does not translate to uniformity of rights, for different classes of persons
may have different rights (e.g. children, indigenous people) but rather to equal opportunity to
enjoy human rights.
2. Right to life, liberty and security.
- The right to life does not include the right to end one’s life.
- The right to liberty and security is not absolute and may be restricted on valid grounds, such
as imprisonment of a convict by way of penalty for the commission of an offense, or the
hospitalization of insane persons.
- United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules)

3. Right against slavery.

- Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children (the Palermo Protocol)
- Human trafficking is considered as “modern day slavery” of which the important factor is
exploitation.
- When persons start to get exploited, whether for debt bondage, sexual commercialism, organ
trafficking and similar purposes, there is human trafficking victimization.
4. Right against torture.
5. Right to equal protection.
- Requisites for a reasonable classification:
a. It must be based on substantial distinctions which make real differences;
b. It must be germane to the purpose of the law;
c. It must not be limited to existing conditions; and,
d. It must apply equally to each member of the class.
- For further discussion on the Right to Equal Protection of Laws, read the case Garcia vs Drilon,
GR No. 179267, June 25, 2013.

6. Right to effective judicial remedy.

- Judicial writs
a. Writ of Habeas Corpus - A writ issued by a judge directed to the person detaining
another, commanding him to produce the body of a prisoner at a designated time and place.
b. Writ of Amparo - The petition for a writ of amparo is a remedy available to any
person whose right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or entity. The
writ shall cover extralegal killings and enforced disappearances or threats thereof.
 c. Writ of Habeas Data - The writ of habeas data is a remedy available to any person
whose right to privacy in life, liberty or security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party.
7. Right to be presumed innocent.
- This right applies to persons accused of crimes that are already filed in court. Persons arrested
for offenses but without cases filed against them in court, and respondents to criminal
complaints lodged before the prosecutor’s offices, cannot yet claim the said right.
- Arrested suspects are instead entitled to the Miranda warning and the protection under RA
7438 (rights of a person under custodial investigation, etc.), while those under preliminary
investigation are entitled to their rights under Rule 112 of the Rules of Court.
8. Right against ex post facto law and bill of attainder.
- No crime and no punishment without a previous penal law:
a. No person shall be held guilty of any penal offense for an act or omission which did not
constitute a penal offense at the time it was committed; and,
b. No person shall suffer a penalty heavier than the one that was applicable at the time of the
commission of the penal offense.
- Bill of attainder is a legislative act that imposes punishment without a trial.
9. Right to privacy
- Art 12 of the UDHR provides that no one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Also,
everyone has the right to the protection of the law against such interference or attacks.
10. Freedom of movement
- Art 13 of the UDHR provides that a person has a right to freedom of movement within the
borders of each State including the right to leave any country, including his own, and to return
to his country.
11. Right to seek asylum
- Non-refoulement for political offenders and refugees. The State having the obligation to
grant asylum cannot return the asylum-seeker to his State of origin where he is in peril of
persecution, rejection, torture or cruel treatment.
- Extradition (for criminal offenses). An act of sending, by authority of law, a person accused of
a crime to a foreign jurisdiction where it was committed in order that he may be prosecuted or
sentenced there.
-Extradition may be the subject of an agreement or treaty between the States involved.
However, it cannot be validly exercised when it is a means to refoule refugees or persons
accused of political offenses.
- Deportation (for immigration offenses). It is the removal from a country of an alien whose
presence is unlawful or prejudicial. An offender of the immigration laws of a State may be
validly returned to his State of origin. But if the deportation will result in a refoulement, such
deportation would be a violation of the International Human Rights Law.
12. Right to a nationality - Citizenship or nationality may be acquired through any of the
following modes:
a. Jus sanguinis (by blood) – The child acquires the citizenship of his parents, regardless of the
place of birth. This is the mode of citizenship acquisition observed in the Philippines.
b. Jus soli (by place) – The child is a citizen of the place where he was born. This is the mode of
citizenship acquisition observed in the US.
c. Naturalization – A foreigner is granted citizenship through a legal act which may be a decree
by a tribunal or quasi-judicial tribunal.

13. Right to marry and found a family - Marriage shall be entered into only with the free and
full consent of the intending spouses. Arranged marriages which do not have the free and full
consent of either or both of the intending spouses is prohibited.

14. Right to property - No one should be arbitrarily deprived of his property. The property
owner is entitled to just compensation if the State will use or expropriate his property.

15. Freedom of thought, conscience and religion - This right includes the freedom to change
one’s religion or belief.

16. Freedom to practice or manifest religious beliefs

- Read: American Bible Society vs City of Manila, GR No. L-9637, April 30, 1957.

17. Freedom of expression - This right may be subject to restrictions as shall be provided by law
and are necessary for the respect of the rights or reputations of others, or for the protection of
national security or of public order, public health, or morals.

18. Freedom of assembly and association - Art 20 of the UDHR provides that everyone has the
right to freedom of peaceful assembly and association but no one may be compelled to belong
to an association.

19. Right to take part in government

- Elections shall be genuine and periodic, and suffrage be equal and universal.
- By “genuine” is meant that election must be free, honest, intelligent and truly reflective of the
people’s will; by “equal and universal” is meant that all votes must carry same weight
regardless of the voter’s sex, religion, or status in life.

20. Right to social security

- Social security is aimed at ensuring that every member of society has access to resources by
which he can maintain his human dignity and enjoy his economic, social and cultural rights
including his right to an adequate standard of living.
21. Right to work - Art 23 of the UDHR provides that everyone has the right to work, to free
choice of employment, to just and favorable conditions of work and to protection against
unemployment. Everyone, without any discrimination, has the right to equal pay for equal
work.

22. Right to rest and leisure - The internationally-accepted daily working hours is eight (8)
hours.

23. Right to adequate standard of living - The rights to food, housing and medical care are the
three (3) most basic rights of human beings. The term “adequate” shall be understood to mean
the minimum requirement for subsistence.

24. Right to education - Art 26 of the UDHR and Art 13 of the ICESCR provides for a right to free
and compulsory elementary education.

25. Right to enjoy economic, social and cultural life

26. Right to self-determination - This right does contemplate secession by a group from an
established State. Any attempt aimed at partial or total disruption of the national unity and the
territorial integrity of a country is incompatible with the purposes and principles of the UN
Charter.

27. Right to health - Art 25 of the UDHR provides that everyone has the right to a standard of
living adequate for the health and well-being of himself and of his family. As can be seen from
above, the “International Bill of Rights” covers a wider range of rights than those under the “Bill
of Rights” in our Philippine 1987 Constitution. The rights under the “Bill of Rights” in our
Philippine 1987 Constitution pertains, in general, only to civil rights.

References and Additional Resources

1. Atty. Pepita Jane A. Petralba (2013) Hornbook on International and Philippine Human Rights
Laws
2. https://www.ohchr.org/documents/publications/training9chapter1en.pdf