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CHAPTER 12 enforcement measures under Chapter

PUBLIC INTERNATIONAL LAW VII.

Human rights, in general terms, are Article 62(2) it authorized the UN


those inalienable and fundamental Social and Economic Council
rights which are essential for life as (ECOSOC) to make
human beings. But there is no recommendations for the purpose of
agreement as to what these rights are. promoting respect for, and the
observance of, human rights and
The United Nations became the cradle fundamental freedoms for all and
for the development of the new commanded it, through Article 68,
international law on human rights. But largely through the intervention of
the U.N. Charters own provisions on American non-governmental
human rights were preliminary. organizations, to set up commissions
in economic and social fields and for
UNITED NATIONS PREAMBLE the promotion of human rights.
Its human rights goal was set down It would take another eighteen
in Article 1(3): To achieve international years before the United Nations
co-operation in solving international could convert the aspirations of
problems of an economic, social, the Declaration into conventional
cultural, or humanitarian character, international law embodied in the
and in promoting and encouraging International Covenant on Civil
respect for human rights and for and Political Rights, the
fundamental freedoms for all without International Covenant on
distinction as to race, sex, language, Economic, Social and Cultural
or religion Rights and the Optional Protocol
No clear cut definitions of human to the Covenant on Civil and
rights and no clear commitment of Political Rights.
members to avoid violations. DISTINCTION BETWEEN A
Evident also is the sensitivity of DECLARATION AND A COVENANT.
nations to their sovereignity as the core of an international covenant
reflectied in Art 2(7) lies a meeting of minds of the
Nothing contained in the present contracting parties on the specific
Charter shall authorize the United duties and obligations they intend to
Nations to intervene in matters which assume, and the agreement that the
are essentially within the domestic undertakings must be effectively
jurisdiction of any state or shall performed
require the Members to submit such Declaration - A declaration by
matters to settlement under the contrast admits the presumption that
present Charter; but this principle shall something less than full effectiveness
not prejudice the application of in terms of law is intended.
A covenant - leaves no doubt about Articles in the covenant which must be
the legal nature of the provisions it looked into;
contains, whereas a declaration is
often deemed to enunciate moral rules Article 9(5) says: Anyone who has
only been a victim of unlawful arrest or
detention shall have an enforceable
WITH RESPECT TO VINCULUM right to compensation, and Article
JURIS This is created in a covenant 14(6) says that a person who has
which is absent in a declaration. It been a victim of miscarriage of justice
places a duty on the contracting shall be compensated according to
parties to bring their laws and law, unless it is proved that the non-
practices into accord with international disclosure of the unknown fact in time
obligations and refrain from is wholly or partly attributable to him.
introducing new practices which are at The only place where the Philippine
variance with such obligations. Constitution asks for compensation is
in Section 12(4) of the Bill of Rights
where the legislature is asked to
THE COVENANT ON CIVIL AND compensate violations of rights of a
POLITICAL RIGHTS. person under investigation.

Substantive rights Article 26 Guarantee of equality.

Articles 1, 6 to 27. Torture, ill-treatment and prison


conditions
Article 6 ( 1 ) Right to life
Article 6(4) provision on genocide Article 7 and 10 - proscription of
Article 9 (1 ) general guarantee of torture and other forms of ill-
liberty treatment that offend not only against
bodily integrity but also against
ALL THESE PROVISIONS DONT GO personal dignity and the requirement
BEYOND WHAT ARTICLE III, SEC. 1 of humane prison conditions
OF THE PHILIPPINE BILL OF
RIGHTS GUARANTEES. It should be noted that the UN
Human Rights Commission has
Article 8 9 and 11 Aspects of expressed the view that
physical liberty, and arrests and imprisonment in conditions
detention. seriously detrimental to a
prisoners health constitutes
Article 14 and 15 Rights of an
violation of Articles 7 and 10(1)
accused
of the Covenant.
Philippines prison conditions
These have long been part of
are far from adequate.
the Philippine accusatory
system.

Freedom of Movement
Article 12(1) and 2 Right to travel Article 13 The right of aliens not to
within the country, right to leave, right be expelled without due process from
to change ones residence. a territory.

Exptn: Legal personality, privacy and the


family
Article 12(3): those which are
provided by law, are necessary to Article 16 Right to be recognized as
protect national security, public order a person before the law.
(ordre public), public health or morals
or the rights and freedoms of others, Legal personality vs Capacity to act
and are consistent with the other
The first belongs to all, whether
rights in the present Covenant
citizens or aliens
Difference with Philippine Bill of Rights the second may not be
: Court order not required for available to some by reason, for
impairment of liberty of abode. instance of infancy, minority, or
insanity.
Exile prohibited by customary
law. State parties must treat every human
being everywhere, male or female,
Right to leave ones country and right young or old, alien or citizen, as a
to return to ones country are different person before the law, enjoying the
and distinct rights. protection of the law and of the forces
of the law, with power to have rights
PHILIPPINE SC : The Court argued that and assume obligations: to own,
since the Declaration of Human Rights acquire, and dispose of property; to
and the Covenant on Human Rights make contracts; to sue and be sued;
separate the right to leave the country and to invoke other legal remedies.
from the right to return to ones
country, the two rights are distinct and No similar guarantee in the
the right to return to ones country is constitution but is presumed to
not guaranteed by the specific exist.
guarantees for the right to travel and
liberty of abode and that therefore When does one become a person?
President Marcos could not appeal to
Covenant silent
Section 6 of the Bill of Rights.
Consti - the life of the unborn from
Related to freedom of movement is
conception
the right of aliens not to be expelled
without due process from a territory.
Civil Code - for purposes beneficial to
This is guaranteed in Article 13 of the
him the unborn is considered a person
Covenant.
Article 17 - Covenant protects
privacy, family, home or
correspondence as well as honour Already subject of Treaty of
and reputation Versailles and Polish-German
Upper Silesia Treaty of 1922.
Articles 23-24 provisions on the
rights of the family and of children. 2 fold concern for minorities:

These are covered by Article XV The first is the fear of a secessionist


on the FAMILY in the Consti. movement by minorities, threatening
territorial integrity of the state, or
Thought, conscience, religion, about the danger of interference by
expression and political freedoms other states with which the minorities
Article 18 Freedom of thought, are connected by ties of race, national
conscience and religion. origin, language, or religion.

Article 19 Freedom of expression The second is a genuine concern for


the human rights of minorities and
Article 21 Right of assembly and the desire that minorities will flourish
petition. so as to preserve that diversity of the
human race, which, since the
Article 20 Prohibits propaganda for beginning of mankind, has provided a
war. motive power for the development of
civilization and culture by weaving
This can conflict with our
many strands into a single multi-
freedom of expression under
colored tapestry
our consti
Self-determination of peoples
Article 25 Guarantee of political
freedom The right to self-determination is
found in Article 1 of the Covenant.
Associations and unions
USSR proposed its application to
Article 22 Right to form associations
those under colonial domination
and unions
but others pused for the
The Covenant is silent about the inclusion of this right for people
right of government employees oppressed by despotic
to form unions; the Constitution governments, under alien
is explicit in the assertion of the domination, and peoples of
right. multi-national states deprived of
self-determination by the
Minorities central authorities.

Article 27 - guarantees ethnic, The right to self- determination covers


religious or linguistic minorities the 2 important rights :
right to enjoy their own culture, to
profess and practice their own religion, 1st - the right freely to determine their
or to use their own language. political status and freely pursue their
economic, social and cultural The internal right of self-determination
development consists of the elements enumerated
in the first two paragraphs of Article 1
2nd - the right for their own ends, [to]
freely dispose of the natural wealth The external right of self-
and resources without prejudice to any determination belongs to colonies and
obligations arising out of international to those enumerated in the third
cooperation, based upon the principle paragraph: non-self-governing and
of mutual benefit, and international Trust Territories.
law.
Optional Protocol on the Covenant
Who are considered as peoples in on Civil and Political Rights.
the Declaration on the Granting of
Independence and Permanent - Supplement to the Covenant on
Sovereignty over Natural resources. Civil and Political Rights.
- The Philippines has ratified this
- Those ruled by colonial powers; protocol.
but under present - This is designed to enable
circumstances this is now of private parties who are victims
limited significance. Peoples of human rights violations to
also mean those who form a have an international legal
component part of a personality.
- Complaints may however be
multinational state
filed only to those states which
Minorities dont have the right to self- have ratified the same.
determination.
The Covenant on Economic, Social
The basis is Article 27 of the Covenant and Cultural Rights.
- does not have a right of self-
- Adopted on the same day
determination in the sense of the right
but why on a separate
to secede
instrument?
AND
Reason:
Penultimate article of the 1960
Western countries vs Third World
Declaration on the Granting of
countries.
Independence which provides;
Western countries - that its
Any attempt aimed at the partial or
government would find difficulty in
total disruption of the national unity
accepting a treaty containing
and territorial integrity of a country is
economic and cultural rights beyond
incompatible with purposes and
those guaranteed by the Constitution
principles of the Charter of the United
Nations. Third world - the absence of economic,
social and cultural guarantees could
The internal and external aspect
of right of self-determination
render civil and political guarantees laws or practices which would be at
meaningless. variance with such obligations.

In the end, the decision to divide, Article 2 of the Covenant on Civil and
which would at least assure approval Political Rights.
of a document on civil and political
rights, prevailed. But significantly, Some provisions of the Covenants are
Article 1 of both Covenants say self-executing in nature and are
exactly the same thing about the right therefore, part of domestic law. For the
of self-determination of people. rest, they may become part of the law
Moreover, there are substantial of the land by legislative or executive
overlappings on other subjects of the measures.
Covenants. Article 2 of the CESC.
RIGHTS SPECIFIC TO THE COVENANT principle of progressive realization -
ON ECONOMIC .. that a state is obligated to undertake a
he rights specific to the Covenant on program of activities . . . and to realize
Economic, Social and Cultural Rights those rights which are recognized by
are social welfare rights stated in the Economic Covenant.
detail. They include: the right to work
(Article 6), to favorable conditions of Other Conventions on Human
work (Article 7), to form free trade Rights.
unions (Articles 8), to social security
and insurance (Article 9), to special
assistance for families (Article 10), to
- 1948 Genocide Convention,
adequate standard of living (Article - the 1966 Convention on the
11), to the highest standard of Elimination of All Forms of
physical and mental health (Article Racial Discrimination
12), to education including compulsory - the 1979 Convention on the
primary education (Articles 13 and Elimination of All Forms of
14), and to the enjoyment of cultural Discrimination Against Women
and scientific benefits and - the 1984 Convention Against
international contacts (Article 15) Torture and Other Cruel,
Inhuman, or Degrading
The Duty to Implement. Treatment or Punishment,
- the 1989 Convention on the
Philippines is a party to
Rights of the Child, and
- Universal Declaration of Human
- the 1990 Convention on
Rights, 2 covenants, United Nations
Migrants Workers.
Charter
Customary human rights law
Therefore it has an obligation to -
bring [its] laws and practices into It can also be said that some human
accord with the accepted international rights principles have become
obligations and not to introduce new customary law in the light of state
practice. This would include the The goal of the court, moreover, is to
prohibition of torture, genocide, demand individual and not collective
slavery and the prohibition of accountability.
discrimination
the principle of complementarity -
International Implementation of The court is meant to be a court of last
Human Rights Law. resort. It normally must await referral
of a crime either by a state party or by
The International Criminal Court the Security Council. The court is not
What is the significance of the allowed to act when the local judicial
establishment of the International system is able and willing to
Criminal Court? prosecute. Once a state has taken the
initiative to investigate a crime, even
Unlike the temporary tribunals which if it ultimately decides that there is no
were plagued with allegations that reason to proceed, the international
proceedings were politically court cannot intervene. The
motivated, the new court has been international court is not intended to
established without any specific supplant the functioning of military
country in mind. It helps facilitate and civilian tribunals in national
reconciliation by avoiding judicial systems. However, if a state
condemnation of entire societies intentionally tries to avoid its
international obligation by shielding a
criminal from responsibility, the court
may come in

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