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Chapter I First generation human rights refer mostly to the political

INTRODUCTION rights and civil liberties found in the ICCPR, such as the prohibition
against searches and seizures, interruption of peaceful meeting, or
undue intervention to the freedom of expression. These are negative
Human rights are rights inherent to all human beings, rights in the sense that they prohibit the doing of something.
whatever our nationality, place of residence, sex, national or ethnic
origin, color, religion, language, or any other status. We are all equally Second generation human rights are positive rights that
entitled to our human rights without discrimination. These rights are all enjoin States to perform an act or do something for the enjoyment of
interrelated, interdependent and indivisible. these rights by the people. These are mostly economical, social and
cultural rights found in the ICESCR, such as the right to work, to
Universal human rights are often expressed and guaranteed education, and to food.
by law, in the forms of treaties, customary international law, general
principles and other sources of international law. International human Third generation human rights are newly emerging rights;
rights law lays down obligations of Governments to act in certain ways the right to development, the right of the people to live in a clean
or to refrain from certain acts, in order to promote and protect human environment, right to live peace, among others. These are also known
rights and fundamental freedoms of individuals or groups. as solidarity rights.

Chapter II Chapter III


HUMAN RIGHTS, ITS ATTRIBUTES, ORIGIN AND STATE RESPONSIBILITY
THE THREE ‘GENERATIONS’

WHY THE STATE?


The Preamble of the Universal Declaration of Human Rights
mentions the “inherent dignity and the equal and inalienable rights of State as a guarantor of human rights
all members of the human family.” Human rights are not granted by the
State, nor stemmed from citizenship in a country. Human rights are The role of the State in the social order is to see to it that
rights which necessarily spring from being a member of the human members of society acknowledge its authority and governs the people
species. properly. In turn, the State must recognize that the people have rights
and freedoms that are inherent in them and cannot be taken away.
With this recognition, it is the State’s duty to guarantee the continued
ATTRIBUTES OF HUMAN RIGHTS enjoyment by the people of their rights.

(1) Universal. Human rights apply to all humans; regardless of As guarantor of human rights, the state may be held
race, culture, sex, creed or other status. accountable when people are deprived of their rights by its action or
(2) Inherent. All human beings are born with these rights; these inaction.
are not conferred by any authority.
(3) Equal. Every human being has the same set of rights as any People vs. Andre Marti (1991)
other.
(4) Inalienable. Human rights cannot be taken from or given The Bill of Rights governs the relationship between the individual and
away by any human. the state. Its concern is not the relation between individuals, between a
private individual and other individuals.

ORIGIN OF HUMAN RIGHTS The constitutional proscription against unlawful searches and seizures
applies as a restraint directed only against the government and its
‘Human rights’ is a relatively modern concept that gained agencies tasked with the enforcement of the law. Thus, it could only be
considerable attention only after WWII. Although the rights of men are invoked against the State to whom the restraint against arbitrary and
as old as man himself, the concept of human rights and their protection unreasonable exercise of power is imposed.
by the State were unheard of then.
If the search is made at the behest or initiative of the proprietor of a
It was after the two world wars when the issue of human private establishment for its own and private purposes, as in the case at
rights took center stage. The destructive effects of the wars impelled bar, and without the intervention of police authorities, the right against
leaders from different countries to come together and forge alliance to unreasonable search and seizure cannot be invoked for only the act of
maintain order through the protection of human rights. private individual, not the law enforcers, is involved. In sum, the protection
against unreasonable searches and seizures cannot be extended to acts
On 26 June 1945, the Charter of UN was adopted. On 10 committed by private individuals so as to bring it within the ambit of
December 1948, the UNGA adopted the UDHR. Other treaties and alleged unlawful intrusion by the government.
protocols were thenceforth entered into by states.
US vs. Mexico | RIAA (1926)

THREE GENERATIONS OF HUMAN RIGHTS Mere nonperformance of contractual obligations by a government in its
civil capacity withholds jurisdiction, whereas it grants jurisdiction when the
The three (3) generation of human rights refer to order in non-performance is accompanied by some feature of the public
time when a particular set of rights began to develop and gain the capacity of the government as an authority.
recognition by states.

HUMAN RIGHTS LAW Notes CHF CARIAGA | 1


US vs. Panama | RIAA (1933) In order that human rights violation committed by individuals
who are not state actors can be properly dealt with, it is necessary that:
The mere fact that an alien has suffered at the hands of private persons
an aggression, which could have been averted by the presence of a (1) The State must enact the appropriate laws to criminalize the
sufficient police force on the spot, does not make a government liable for human rights violations; and
damages under international law. There must be shown special (2) The State must provide adequate judicial remedies.
circumstances from which the responsibility of the authorities
arises: either their behavior in connection with the particular occurrence, US vs. United Mexican State | RIAA (1926)
or a general failure to comply with their duty to maintain order, to prevent
crimes or to prosecute and punish criminals. Certain cases coming before the international tribunals may have revealed
some uncertainty whether the acts of soldiers should properly be regarded
Human rights and the rule of law as private acts for which there was no liability on the State, or acts for
which the State should be held responsible. But we do not consider that
In order for society to strike delicate balance between the the participation of the soldiers in the murder at Angangueo can be
government’s authority to rule and the people’s entitlement to their regarded as acts of soldiers committed in their private capacity when
inherent rights, a strict adherence to the Rule of Law must be it is clear that at the time of the commission of these acts the men were on
observed. duty under the immediate supervision and in the presence of a
commanding officer. Soldiers inflicting personal injuries or committing
Under the Rule of Law, “the law is preeminent and can serve wanton destruction or looting always act in disobedience of some rules
as a check against abuse of power.” laid down by superior authority. There could be no liability whatever for
such misdeeds if the view were taken that any acts committed by soldiers
Violations by ‘state actors’ in contravention of instructions must always be considered as personal
acts.
States are abstract entities; they do not act on their own.
States act through their agents, or state actors. When a State actor
violates the human rights of an individual, it is deemed a violation by INTERNATIONAL STATE RESPONSIBILITY
the State itself.
Whenever a State ratifies a human rights treaty, it commits
France vs. Mexico | RIAA (1929) itself not only to observe the standards set forth in the treaty and see to
it that its agents do likewise, but also to enact domestic laws and
A state may be held internationally responsible for the unauthorized regulations in order to hold private individuals accountable.
acts of state officials, such as the unlawful killing of a foreign national by
an army or police officer, where those officials purported to act in an International State responsibility for internationally wrongful acts
official capacity and used the means placed at their disposition by virtue of
that capacity. In the international level, State liability may be incurred for
internationally wrongful acts. Every internationally wrongful act of a
The officers in question … consistently conducted themselves as officers; State entails the international responsibility of that State.
in this capacity they began by exacting the remittance of certain sums of
money; they continued by having the victim taken to a barracks of the The elements of an internationally wrongful act of the State
occupying troops; and it was clearly because of the refusal of M. Caire to are:
meet their repeated demands that they finally shot him. Under these
circumstances, there remains no doubt that, even if they are to be (1) The acts or omission is attributable to the State under
regarded as having acted outside their competence, which is by no means international law; and
certain, and even if their superior officers issued a counter-order, these (2) The conduct constitutes a breach of an international
two officers have involved the responsibility of the State, in view of the fact obligation of the State.
that they acted in their capacity of officers and used the means placed at
their disposition by virtue of that capacity. The state responsibility extends to acts committed by
instrumentalities of the State. Persons and entities which have the
People vs. Chan Fook (1921) status of organs in the internal law of the State are included in the term
state organs.
Citing the case of Yick Wo vs. Hopkins (118 U. S., 356, 369), Justice
Matthews says: The conduct of any State organ shall be considered an act of
that State under international law. States also incur liability if they fail to
The Fourteenth Amendment to the Constitution is not confined to the prevent private individuals or groups from violating the human rights of
protection of citizens. It says: "Nor shall any State deprive any person of persons.
life, liberty, or properly without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws." These provisions Velásquez-Rodríguez vs. Honduras | IACHR (1988)
are universal in their application to all persons within the territorial
jurisdiction, without regard to any differences of race, of color, or of The practice of disappearances in Honduras often involved secret
nationality; and the equal protection of the laws is a pledge of the executions and concealment of bodies, the practice is a flagrant violation
protection of equal laws. of the right to life. Since Mr. Velásquez-Rodríguez has been disappeared
for seven years, and because his body was never discovered, there was a
Violations by private individuals reasonable presumption that he had been killed. Taking the evidence
along with the State’s failure to investigate or to take steps to prevent
Individuals or groups can commit human rights violations such forced disappearances from happening, the Court found that the
and can be held liable for such. Individual responsibility for human State violated the right to life.
rights violations committed by private persons are treated and
punished under the criminal law system.

HUMAN RIGHTS LAW Notes CHF CARIAGA | 2


US vs. Iran | ICJ Rep (1980) encompasses not only military commanders, but also civilians holding
positions of authority, and not only persons in de jure positions but also
The Court finds that Iran, by committing successive and continuing those in such position de facto.
breaches of the obligations laid upon it by the Vienna Conventions of 1961
and 1963, the 1955 Treaty, and the applicable rules of general In Re Yamashita | US SC (1946)
international law, has incurred responsibility towards the United States. As
a consequence, there is an obligation on the part of the Iranian State to The charge was "an unlawful breach of duty as an army commander to
make reparation for the injury caused to the United States. Since, control the operations of members of his command by 'permitting them to
however, the breaches are still continuing, the form and amount of such commit' the extensive and widespread atrocities."
reparation cannot yet be determined.
The Court recognized that international law, through the law of war,
At the same time the Court considers it essential to reiterate the "presupposes that [violations of the law of war] are to be avoided through
observations it made in its Order of 15 December 1979 on the importance the control of the operations of war by commanders who to some extent
of the principles of international law governing diplomatic and consular are responsible for their subordinates." The absent such a duty upon
relations. After stressing the particular gravity of the case, arising out of commanders, nothing would prevent occupying forces from committing
the fact that it is not any private individuals or groups that have set at atrocities upon the civilian population. The Court held that General
naught the inviolability of an embassy, but the very government of the Yamashita was, by virtue of his position as commander, under an
State to which the mission is accredited, the Court draws the attention of "affirmative duty to take such measures as were within his power and
the entire international community to the irreparable harm that may be appropriate in the circumstances to protect prisoners of war and the
caused by events of the kind before the Court. Such events cannot fail to civilian population."
undermine a carefully constructed edifice of law the maintenance of which
is vital for the security and well-being of the international community. This ruling became known as the Yamashita Standard.

Derivative State responsibility for complicity


PHILIPPINE CASES ON STATE RESPONSIBILITY
Under the international law, a State may be held liable for a
human rights violation even if it did not directly commit the act Justiciability of the solidary right to a healthy environment
constituting the violation, provided that it assisted in the commission of
the act or allowed it to happen. Oposa vs. Factoran (1993)

Derivative responsibility exists when: Children have legal standing to file the case based on the concept of
“intergenerational responsibility”. Their right to a healthy environment
(1) The State aids and assists in the commission by another of carried with it an obligation to preserve that environment for the
the internationally wrongful act; and succeeding generations. The Court recognized legal standing to sue on
(2) The state exercises direction and control over the behalf of future generations. The petitioners were able to file a class suit
commission of the act. both for others of their generation and for succeeding generations as “the
minors' assertion of their right to a sound environment constitutes, at the
Nicaragua vs. USA | ICJ (1986) same time, the performance of their obligation to ensure the protection of
that right for the generations to come.”
The United States was held liable for violation of customary international
law on non-interference in the affairs of another State for training, Also, the law on non-impairment of contracts must give way to the
arming, equipping, financing and supplying the contra forces or otherwise exercise of the police power of the state in the interest of public welfare.
encouraging, supporting and aiding military activities in and against
Nicaragua. For this reason, the United States was ordered to make The Writ of Kalikasan
reparations for the injury caused by such violation.
The Writ of Kalikasan is a remedy available to a natural or
US vs. Great Britain | RIAA (1920) juridical person, entity authorized by law, people’s organization, non-
governmental organization, or any public interest group accredited by
It is a well-established principle of international law that no government or registered with any government agency, on behalf of persons whose
can be held responsible for the act of rebellious bodies of men constitutional right to a balanced and healthful ecology is violated, or
committed in violation of its authority, where it is itself guilty of no threatened with violation by an unlawful act or omission of a public
breach of good faith, or of no negligence in suppressing insurrection. official or employee, or private individual or entity, involving
environmental damage of such magnitude as to prejudice the life,
health or property of inhabitants in two or more cities or provinces.
COMMAND RESPONSIBILITY
Commission on Human Rights
Liability for violation of human rights may be incurred by an
act or omission. Command responsibility applies not only during war The Constitution clearly and categorically grants to the
time but also during peace time. Commission the power to investigate all forms of human rights
violations involving civil and political rights. It can exercise that power
Delalic Case | ICTY (2001) on its own initiative or on complaint of any person.

The doctrine of command responsibility establishes that: the fact that Cariño vs. CHR (1991)
[an act] was committed by a subordinate does not relieve his superior of
criminal responsibility if he knew or had reason to know that the The threshold question is whether or not the Commission on Human
subordinate was about to commit such acts or had done so and the Rights has the power under the Constitution to do so; whether or not, like
superior failed to take the necessary and reasonable measures to prevent a court of justice, or even a quasi-judicial agency, it has jurisdiction or
such acts or to punish the perpetrators thereof. The doctrine adjudicatory powers over, or the power to try and decide, or hear and

HUMAN RIGHTS LAW Notes CHF CARIAGA | 3


determine, certain specific type of cases, like alleged human rights rule of law requiring it. The need for such a belief, i.e., the existence of a
violations involving civil or political rights. subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are
The Court declares the Commission on Human Rights to have no such conforming to what amounts to a legal obligation. The frequency or even
power; and that it was not meant by the fundamental law to be another habitual character of the acts is not in itself enough. There are many
court or quasi-judicial agency in this country, or duplicate much less take international acts, e.g., in the field of ceremonial and protocol, which are
over the functions of the latter. performed almost invariably, but which are motivated only by
considerations of courtesy, convenience or tradition, and not by any sense
The most that may be conceded to the Commission in the way of of legal duty.
adjudicative power is that it may investigate, i.e., receive evidence and
make findings of fact as regards claimed human rights violations involving Jus cogens
civil and political rights.
Jus cogens (compelling law; peremptory norms) is a unique
class of customary law that occupy highest echelon in Human Rights
Chapter IV Law hierarchy. This group of fundamental norms is superior to other
SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW sources of international law and need not be agreed upon by states in
a treaty in order to form part of their jurisprudence. They are deemed
inderogable as well. The elements of jus cogens are:
(1) International conventions;
(2) International custom, as evidence of a general practice (1) It is a peremptory norm of general international law;
accepted as law; (2) It is accepted and recognized by the international
(3) General principles of law recognized by the community of community;
nations; and (3) There can be no derogation therefrom; and
(4) Judicial decisions and the teachings of highly qualified (4) It can be modified only by a subsequent norm of general
publicists. international law having the same character.

Among the universally-accepted norms are the rights against


INTERNATIONAL AGREEMENTS slavery, genocide, acts of aggression, and racial discrimination.

International agreements, more commonly known as Nicaragua vs. USA | ICJ (1986)
treaties, usually are officially called conventions or covenants.
Jus cogens is superior as a source of human rights. The principle of
 Treaty is a legally binding written agreement concluded non-use of force is jus cogens, so that even if the UN Charter and the
between States. treaty were not applicable in the case, the Court may still rule on the
 Protocol is a supplement or subsequent agreement relative issue. In this case involving the United States, the latter did not ratify the
to an existing treaty applicable treaty and did not make a categorical acceptance of the
jurisdiction of an international court.
A State’s consent to be bound by a treaty is expressed
through ratification, approval, or acceptance. Generally, the act of Obligatio erga omnes
merely signing a treaty is not enough to bind a State. Once a treaty is
ratified, the State is bound to faithfully comply with its treaty obligations Obligatio erga omnes are obligations that are owed by
under the doctrine of pacta sunt servanda. States to all, regardless of the presence or absence of their assent to
be bound by the treaty. These obligations are intertwined with the
 Pacta sunt servanda (agreements must be kept). An concept of jus cogens and usually arise from jus cogens rights.
expression signifying that the agreements and stipulations of
the parties to a contract must be observed. Barcelona Traction Case (Belgium vs. Spain) | ICJ Rep (1970)

If a state violated a treaty with another State and the treaty only pertains,
INTERNATIONAL CUSTOMARY LAW for instance, to their bilateral agreement regarding trade, that infringement
is a private matter between the contracting States. However, where
To be considered international customary law, there must human rights laws which are of paramount importance for international
be: community are violated, all states have legal interest in their protection for
they are obligation owed by the State to the community of States.
(1) The objective element of acts amounting to settled practice
of States; and Universal jurisdiction
(2) The subjective element consisting of a belief that this
practice is rendered obligatory by the existence of a rule of The principles of jus cogens and erga omnes transcend
law requiring it. boundaries. Under universal jurisdiction, a State may prosecute a
crime committed elsewhere if such crime is a jus cogens.
 Opinio juris sive necessitatis (an opinion of law or
necessity) Actio popularis

North Sea Continental Shelf Case | ICJ (1969) Actio popularis is an action brought by a third person in the
interest of the public; it is a rule of procedure in bringing a suit on
Not only must the acts concerned amount to a settled practice, but they another’s behalf. Prosecution of jus cogens crimes may be initiated by
must also be such, or be carried out in such a way, as to be evidence of another person or group of persons for the benefit of another through a
a belief that this practice is rendered obligatory by the existence of a complaint actio polularis.

HUMAN RIGHTS LAW Notes CHF CARIAGA | 4


(4) Regional courts. European Courts of Human Rights, Inter-
GENERAL PRINCIPLES OF LAW American Court of Human Rights, African Court of Human
and People’s Rights, and hybrid or internationalized court.
General principles of law are unwritten and uncodified
concepts from which laws are based. A principle of law may evolve Teachings of jurists and publicists
from local or municipal jurisprudence of a State which is adopted by
other States, from teachings and publications, and from works of The teachings of highly qualified jurists and publicists are a
experts. subsidiary means of determining international human rights law. In
case of international laws of armed conflict, the declaration of the
Incorporation clause Russian delegate, Martens, became a guiding principle of sorts in
determining how States should conduct themselves during wartime
Incorporation Clause: “The Philippine Constitution adopts the when there are no specific rules enacted which apply to the situation.
generally accepted principles of international law as part of the law of
the land.” This means that the Philippines has the obligation to observe The Martens Clause: “Until a more complete code of the
generally accepted principles of international law not only as laws of war is issued, the High Contracting Parties think it right to
customary law but because of the express provision of the declare that in cases not included in the Regulations adopted by them,
incorporation clause. populations and belligerents remain under the protection and empire of
the principles of international law, as they result from the usages
Kuroda vs. Jalandoni (1949) established between civilized nations, from the laws of humanity and
the requirements of the public conscience.”
The Court holds that the Military Commission created by the President of
the Philippines which tried a general of the Japanese Imperial Army for Chapter V
the war crimes committed in the Philippine territory during WWII was valid THE INTERNATIONAL BILL OF RIGHTS
and constitutional by virtue of the incorporation clause, despite the
fact that the Philippines was not a signatory of The Hague and Geneva
Conventions at that time. The UDHR, ICCPR, and ICESCR are collectively known as
the International Bill of Rights.
Yogyakarta Principles

Presently there is no human rights treaty on the rights of UNIVERSAL DECLARATION OF HUMAN RIGHTS
lesbians, gays, bisexuals, and transgender. There is, however, a set of
principles formulated by human rights experts on gay rights, known as The primary human rights instrument, the UDHR, is not a
the Yogyakarta Principles. Yogyakarta Principles is a collection of 29 treaty; it is a resolution, thus legally it has the force and effect only of a
principles that declares the rights of LGBT. Many of these rights are recommendation, which is considered soft law, and which traditionally
found in the UDHR and other treaties. would have lacked binding effect upon States. It, however, has been
observed by states as if it was a treaty, and has since evolved into
general accepted international law.
JUDICIAL DECISIONS AND TEACHINGS
Among the notable declarations found in the Preamble of
International case law is recognized as a subsidiary means UDHR are:
for the determination of rules of law. It may consist of judgments of
international tribunals, the regional courts and even domestic courts. (1) That human rights are inalienable rights of all members of
The teachings of the most highly qualified publicist may also be human family;
consulted in ruling an international dispute. (2) The recognition of human rights is the foundation of
freedom, justice, and peace in the world;
The international and regional tribunals are: (3) The freedoms of speech and belief as well as the freedom
from fear and want are the highest aspiration of the common
(1) International Court of Justice (ICJ). The principal judicial people; and
organ of the UN. Only member may lodge complaints. (4) Rebellion against tyranny and oppression is recognized as
Individuals are not recognized as parties in this court. It last resort where human rights are not protected.
exercises jurisdiction in two kinds of cases:
a. Contentious cases. Cases submitted by State
Members of the UN, or other States which are INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
parties of the Statute of the Court, or which have
accepted its jurisdiction. ICCPR has two additional protocols:
b. Advisory proceedings. Requests for advisory
opinions on legal matter submitted by UN organs (1) First Optional Protocol, which provides for the jurisdiction
and specialized agencies. of the Human Rights Committee to receive and consider
(2) International Criminal Court (ICC). The ICC is an communications from individuals who claim to be victims of
independent permanent international criminal court known human rights violations.
as the court of last resort, and will only try cases after the (2) Second Optional Protocol, which is aimed at the abolition
exhaustion of remedies before domestic courts, and only for of death penalty
the gravest offenses.
(3) Ad hoc criminal tribunals. International Criminal Tribunal ICCPR has compliance and monitoring mechanism which is
of the Former Yugoslavia, International Criminal Tribunal for the Human Rights Committee.
Rwanda, etc.

HUMAN RIGHTS LAW Notes CHF CARIAGA | 5


INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND (4) It must apply equally to each member of the class.
CULTURAL RIGHTS
Right to effective judicial remedy
The ICESCR has a reporting mechanism called the
Committee on Economic, Social and Cultural Rights. There is one Everyone has the right to an effective remedy by the
optional protocol to the ICESCR which provided for the jurisdiction of competent national tribunals for acts violating the fundamental rights
the CESCR to receive and consider communications from individuals granted him by the constitution or by law.
and groups claiming to be victims of violations of any of the rights set
forth in the ICESCR. Free access to the courts and adequate legal assistance
shall not be denied to any person by reason of poverty.

RIGHTS AND FREEDOMS UNDER THE Among the remedies and writs that maybe availed of by
INTERNATIONAL BILL OF RIGHTS human rights victim are:

Equality in dignity and rights (1) Writ of habeas corpus. A writ issued by a judge directed to
the person detaining another, commanding him to produce
This declaration ensures that every human is entitled to the body of a prisoner at a designated time and place.
rights regardless of sex, race, religion, statues in life or political beliefs.
Except as otherwise expressly provided by law, the writ of
habeas corpus shall extend to all cases of illegal
Right to life, liberty and security confinement or detention by which any person is deprived of
his liberty, or by which the rightful custody of any person is
Right to life, liberty and security of persons encapsulates the withheld from the person entitled thereto.
key political and civil rights of a person must be protected by the State.
The privilege of the writ of habeas corpus shall not be
Pretty vs. UK | EC+HR (2000) suspended except in cases of invasion or rebellion, when the
public safety requires it.
Mrs. Pretty was suffering from advanced stage of motor neuron disease
which paralyzed her from neck down. She argued that she had the right to (2) Writ of Amparo. The petition for a Writ of Amparo is a
life as well as the right to die. The court rules that the petitioner did not remedy available to any person whose right to life, liberty
have right to die and such right can not be derived from the right to life. and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of
Clearly, the right to liberty and security is not absolute and may be a private individual or entity. The writ shall cover extralegal
restricted on valid grounds. killings and enforced disappearances or threats thereof.

Right against slavery (3) Writ of Habeas Data. The writ of habeas data is a remedy
available to any person whose right to privacy in life, liberty
The right against slavery is jus cogens a higher level human or security is violated or threatened by an unlawful act or
right. States cannot validly enter into a treaty to the contrary. The jus omission of a public official or employee, or of a private
cogens right against slavery includes all forms of slavery, such as individual or entity engaged in the gathering, collecting or
human trafficking. As a form of slavery, trafficking is a crime against storing of data or information regarding the person, family,
humanity. home and correspondence of the aggrieved party.

Rights against torture Right to be presumed innocent

Torture means any act by which severe pain or suffering is Everyone charged with a penal offence has the right to be
intentionally inflicted in a person. The right against torture is non- presumed innocent until proved guilty according to law in a public trial
derogable. States cannot derogate from it even in times of war or at which he has had all the guarantees necessary for his defense.
emergency; and no torture is justified.
Right against ex post facto law and bill of attainder
Aside from torture, acts constituting cruel, inhuman or
degrading treatment or punishment are also punishable. No one shall be held guilty of any penal offence on account
of any act or omission which did not constitute a penal offence, under
Right to equal protection national or international law, at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at
Equal protection does not mean that each and every person shall the time the penal offence was committed.
be treated in the same manner at all times, regardless of class and
circumstances; reasonable classification is allowed. Right to privacy

People vs. Cayat (1939) No one shall be subjected to arbitrary interference with his
privacy, family, home or correspondence, nor to attacks upon his honor
The requisites for reasonable classification: and reputation. Everyone has the right to the protection of the law
against such interference or attacks.
(1) It must be based on substantial distinctions which make real
differences;
(2) It must be germane to the purpose of law;
(3) It must not be limited to existing conditions only; and

HUMAN RIGHTS LAW Notes CHF CARIAGA | 6


Freedom of movement Article 14 of the 1930 Hague Convention. Article 2 of the 1961 United
Nations Convention on the Reduction of Statelessness merely gives effect
The liberty of abode and of changing the same within the to Article 15(1) of the UDHR.
limits prescribed by law shall not be impaired except upon lawful order
of the court. Neither shall the right to travel be impaired except in the Right to marry and found a family
interest of national security, public safety, or public health, as may be
provided by law. Men and women of full age have the right to marry and to
found a family. Marriage shall be entered into only with the free and full
Marcos, et. al. vs. Manglapus, et. al. (1989) consent of the intending spouses. The family is the natural and
fundamental group unit of society and is entitled to protection by
Among the duties of the President under the Constitution, in compliance society and the State.
with his (or her) oath of office, is to protect and promote the interest and
welfare of the people. Her decision to bar the return of the Marcoses and Right to property
subsequently, the remains of Mr. Marcos at the present time and under
present circumstances is in compliance with this bounden duty. In the Everyone has the right to own property alone as well as in
absence of a clear showing that she had acted with arbitrariness or with association with others. No one shall be arbitrarily deprived of his
grave abuse of discretion in arriving at this decision, the Court will not property.
enjoin the implementation of this decision. (residual power)
Freedom of thought, conscience and religion
This case is unique. It should not create a precedent, for the case of a
dictator forced out of office and into exile after causing twenty years of Everyone has the right to freedom of thought, conscience
political, economic and social havoc in the country and who within the and religion; this right includes freedom to change his religion or belief,
short space of three years seeks to return, is in a class by itself. and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief in teaching, practice, worship
Right to seek asylum and observance.

This right may not be invoked in the case of prosecutions Freedom to practice or manifest religious beliefs
genuinely arising from non-political crimes or from acts contrary to the
purposes and principles of the United Nations. Tolentino vs. Secretary of Finance (1995)

(1) Non-refoulment. For political offenses, asylum may be Citing American Bible Society vs. City of Manila, the Court rules that:
validly sought in other countries by persons facing political
prosecutions in their own country, or by refugees. The State (1) Sales tax may be imposed for the sale of religious materials;
having the obligation to grant asylum cannot return the (2) License fees/Mayor’s permits for the sale of religious
asylum-seeker to his State of origin. materials cannot be imposed on religious organizations
(2) Extradition. For criminal offenses, an accused can be because it is tantamount to imposing a condition for the
validly returned to the State having criminal jurisdiction over exercise of the organization’s right;
the case for criminal prosecution or sentencing. (3) Registration fees (on EVAT) may be validly collected because
(3) Deportation. For immigration offenses, an offender may be they are not imposed for the exercise of a privilege but only
validly returned to his State of origin if he is not authorized to for the purpose of defraying part of the cost of registration.
be in the receiving country under immigration laws.
Sahin vs. Turkey | EC+HR (2005)
Right to a nationality
The ban on wearing of religious symbols in universities was based on
Poe-Llamanzares vs. COMELEC (2016) secularism, separation of Church and State, pluralism and respect for the
rights of others. The freedom to manifest one’s religion could be
The common thread of the UDHR, UNCRC and ICCPR is to obligate the restricted in order to defend those values and principles.
Philippines to grant nationality from birth and ensure that no child is
stateless. This grant of nationality must be at the time of birth, and it Freedom of expression
cannot be accomplished by the application of naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of Freedom of opinion and expression may be subject to
which require the applicant to be at least 18 years old. restrictions as shall be provided by law and necessary for the respect
of rights or reputations of others of the rights or reputations of others,
The principles found in two conventions, while yet unratified by the or for the protection of national security or of public order, public
Philippines, are generally accepted principles of international law. The first health, or morals.
is Article 14 of the 1930 Hague Convention on Certain Questions Relating
to the Conflict of Nationality Laws under which a foundling is presumed to Chaplinsky v State of New Hampshire (1942)
have the "nationality of the country of birth.
The right of free speech is not absolute at all times and under all
The second is the principle that a foundling is presumed born of citizens of circumstances. There are certain well-defined and narrowly limited
the country where he is found, contained in Article 2 of the 1961 United classes of speech, the prevention and punishment of which has never
Nations Convention on the Reduction of Statelessness. been thought to raise any Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or ‘fighting’
That the Philippines is not a party to the 1930 Hague Convention nor to words-those which by their very utterance inflict injury or tend to incite an
the 1961 Convention on the Reduction of Statelessness does not mean immediate breach of the peace. It has been well observed that such
that their principles are not binding. While the Philippines is not a party utterances are no essential part of any exposition of ideas, and are of
to the 1930 Hague Convention, it is a signatory to the Universal such slight social value as a step to truth that any benefit that may be
Declaration on Human Rights, Article 15(1) of which effectively affirms

HUMAN RIGHTS LAW Notes CHF CARIAGA | 7


derived from them is clearly outweighed by the social interest in order and Right to health
morality.
Everyone has the right to a standard of living adequate for
Freedom of assembly and association the health and well-being of himself and of his family.

Everyone has the right to freedom of peaceful assembly and


association. No one may be compelled to belong to an association. Chapter VI
APPLICATION, ENFORCEMENT AND LIMITATIONS
Right to take part in government

Everyone has the right to take part in the government of his DOMESTIC APPLICATION OF IHRL
country, directly or through freely chosen representatives. Everyone
has the right to vote and to be elected at genuine periodic elections There are two theories on the domestic applicability of
which shall be by universal and equal suffrage and shall be held by international human rights law:
secret ballot, guaranteeing the free expression of the will of the
electors. (1) Monist theory. International law and domestic law comprise
one legal system. In absolute monism, international law
Right to social security automatically becomes domestic law, without need to enact
a separate national law.
Everyone, as a member of society, has the right to social (2) Dualist theory. International law and domestic law are
security and is entitled to realization, through national effort and different legal systems. International law does not become
international co-operation and in accordance with the organization and obligatory to its citizens until the State passes a
resources of each State, of the economic, social and cultural rights corresponding domestic law containing its provisions.
indispensable for his dignity and the free development of his
personality.
INTERNATIONAL APPLICATION OF IHRL
Right to work
The consent to be bound by a treaty may be expressed by
Everyone has the right to work, to free choice of signature, exchange of instruments constituting a treaty, ratification,
employment, to just and favorable conditions of work and to protection acceptance, approval or accession, or by any other means, if so
against unemployment. Everyone, without any discrimination, has the agreed.
right to equal pay for equal work.
Signature
Right to rest and leisure
Signature to a treaty, however does not automatically mean
Everyone has the right to rest and leisure, including consent of a State to be bound by said treaty, if under the national law,
reasonable limitation of working hours and periodic holidays with pay. it is the act of ratification which operates to bind that State.

Right to adequate standard of living Signature ad referendum means that the signature becomes
definitive only once the signature is confirmed by the State. Definitive
Everyone has the right to a standard of living adequate for signature operates as the consent of a State to be bound by a treaty
the health and well-being of himself and of his family, including food, when that treaty is not subject to ratification, acceptance or approval.
clothing, housing and medical care and necessary social services.
Exchange of letters or notes
Right to education
The basic characteristic of this procedure is that the
Everyone has the right to education. Education shall be signatures do appear not on one letter or note but on two separate
directed to the full development of the human personality and to the letters or notes. The agreement therefore lies in the exchange of both
strengthening of respect for human rights and fundamental freedoms. letters or notes, each of the parties having in their possession one
It shall promote understanding, tolerance and friendship among all letter or note signed by the representative of the other party.
nations, racial or religious groups, and shall further the activities of the
United Nations for the maintenance of peace. Act of formal confirmation

Right to enjoy economic, social and cultural life Act of formal confirmation is used as an equivalent for the
term ratification when an international organization expresses its
Everyone has the right freely to participate in the cultural life consent to be bound to a treaty.
of the community, to enjoy the arts and to share in scientific
advancement and its benefits. State parties may be allowed to limit, restrict, or modify the
application of a treaty by:
Right to self-determination
Reservation.
All peoples have the right of self-determination. By virtue of
that right they freely determine their political status and freely pursue A reservation is a declaration made by a state by which it
their economic, social and cultural development. purports to exclude or alter the legal effect of certain provisions of the
treaty in their application to that state. However, reservations are not
allowed when: (a) it is prohibited; (b) it is not included in the

HUMAN RIGHTS LAW Notes CHF CARIAGA | 8


reservations specified; and (c) it is incompatible with the object and (4) The least intrusive measure should be applied; and
purpose. (5) The law must be strictly interpreted against restriction.

Interpretative declaration. Derogation

Sometimes states make "declarations" as to their Derogation is allowed of rights, provided that:
understanding of some matter or as to the interpretation of a particular
provision. (1) There is a public emergency which threatens the life of the
nation;
Modification (2) The existence of public emergency is officially proclaimed;
(3) The derogation is to the extent strictly required by the
The term "modification" refers to the variation of certain exigencies of the situation;
treaty provisions only as between particular parties of a treaty, while in (4) The measures are not inconsistent with other obligations
their relation to the other parties the original treaty provisions remain under international law; and
applicable. If the treaty is silent on modifications, they are allowed only (5) The measures taken do not involve discrimination solely on
if the modifications do not affect the rights or obligations of the other the ground of race, color, sex, language, religion or social
parties to the treaty and do not contravene the object and the purpose origin.
of the treaty.
Non-derogable rights include: torture; thought, conscience
Denunciation and religion; life; slavery; ex post facto; discrimination; and non-
imprisonment for debt.
Denunciation means the withdrawal by a State Party from a
treaty. Treaties such as CRC, ICERD, and CAT allow denunciation;
ICCPR, ICESCR and CEDAW do not allow denunciation. Chapter VII
MONITORING SYSTEMS

ENFORCEMENT MECHANISMS
The rule of pacta sunt servanda requires that States comply
States and governments are the guarantors and protectors with their obligations arising from international human rights laws and
of human rights, and because of the doctrine of State responsibility, treaties. In order to check on the compliance by States of these
they can be the violators at the same time. obligations, monitoring mechanisms are set up.

Enforcement against individuals (1) Charter-based. Those provided under the United Nations
Charter itself, or through UN organs
(1) Domestic enforcement. The enactment of national laws to (2) Treaty-based. Those provided under the treaties
enforce international human rights commitments translates a themselves.
soft law into a hard law. (e.g. Revised Penal Code for
criminal acts; New Civil Code for compensation for
damages; Revised Administrative Code for violators in CHARTER-BASED MECHANISMS
government service)
(2) International enforcement. Individuals may be brought to Complaints procedure: The 1503 Procedure
justice before hybrid courts, ad hoc international courts, or
before the ICC. The 1503 Procedure is a procedure whereby individual
complaints from human rights victims or groups representing them are
Enforcement against states accepted by the UN body. Among the main features of the complaint
mechanism is its confidentiality provision and the need for prior
(1) Court action. Where the violator is a State. Redress may be exhaustion of domestic remedies.
sought at the national, regional, or international courts.
(2) Diplomatic means. Aside from bringing complaints before The procedure is two-tiered: (a) first, the complaint goes to
human rights courts, States whose nationals have been the Working Group on Communications who assesses the admissibility
victims of human rights violations by another State may opt and merits of the complaint; and (b) second, the complaint is endorsed
to avail of diplomatic means. to the Working Group on Situations who examines the complaint and
(3) Retorsion. These are unfriendly acts which do not presents its recommendations to the Human Rights Council on the
necessarily constitute violation of rights of offending State. course of action to take.
(4) Countermeasures. These are responses by a State to the
wrongful conduct of another, as a tool of self re-dress. State Reports
(5) Military intervention.
States are required to render a report on their human rights
Restrictions and limitations situation. These annual reports are called Human Rights Reports.

While the substance of human rights cannot be taken away, Special Procedures: 1235 Special Rapporteurs
its exercise may, however, may be regulated in consideration of the
following: Aside from reports coming from the States themselves, UN
rapporteurs also provide the UN important information on the extent of
(1) There must be a clear legal provision of law; compliance by States in their international commitments. Rapporteurs
(2) The restriction must be a specific legitimate purpose; may be country-specific or thematic.
(3) The proportionality test must be applied

HUMAN RIGHTS LAW Notes CHF CARIAGA | 9


NGOs and NHRIs
Chapter VIII
Non-governmental organizations and National Human Rights THE UNITED NATIONS
Institutions play vital role in providing the UN with information on the
human rights situations in a State by submitting written reports.
The United Nations Organization is the international body
Universal Periodic Review composed of the family of nations. Currently, it has 193 member
States. Through its organs, offices, agencies, programmes, and
States were required by the Human Rights Council to render subsidiary agencies, it is instrumental in human rights and
a report on its human rights situation once every four years. humanitarian law policy making, implementation, and monitoring.

TREATY-BASED MECHANISMS PURPOSE OF THE UN

Human rights treaties usually contain provisions to monitor (1) To maintain international peace and security;
compliance by states of their obligations under the treaty. These treaty (2) To develop friendly relations among nations;
bodies render views on complaints before it. (3) To achieve international cooperation in solving international
problems and in promoting respect for human rights and
Human Rights Committee fundamental freedoms; and
(4) To be a center for harmonizing the actions of nations in the
Composed of 18 members, is the body charged with attainment of common ends.
overseeing compliance of the ICCPR. They perform two main
functions: (a) receive and review State Reports and (b) decide on PRINCIPAL ORGANS OF THE UN
complaints against member States.
General Assembly
Its functions include:
(1) Examining the reports of States on measures adopted; The General Assembly is the main deliberative,
(2) Provide good offices and facilities for a formal conciliation in policymaking and representative organ of the UN. All 193 Member
an inter-state machinery; States of the UN are represented in the General Assembly. Decisions
(3) Implementation measures – receive communications from on important questions, such as those on peace and security,
individuals (conditions as to admissibility: must be against admission of new members and budgetary matters, require a two-
State party; domestic remedies must be exhausted; and thirds majority of the General Assembly. Decisions on other questions
complaint should not be anonymous) are by simple majority. The Human Rights Council is a subsidiary of
(4) Send complaint to State Party; and UNGA.
(5) Report findings to the UNGA

Action popularis is not allowed before this Committee. The Security Council
ruling in this Committee does not have legal binding effect. However,
an interim measure which is mandatory in character can be issued. The Security Council has primary responsibility, under the
UN Charter, for the maintenance of international peace and security. It
Piandiong vs. Philippines | HRC (1999) has 15 Members (5 permanent: France, USA, China, Russian
Federation, and UK; and 10 non-permanent members elected for 2-
By adhering to the Optional Protocol, a State party to the Covenant year term). Under the Charter, all Member States are obligated to
recognizes the competence of the Human Rights Committee to comply with Council decisions. The Security Council takes the lead in
receive and consider communications from individuals claiming to be determining the existence of a threat to the peace or act of aggression.
victims of violations of any of the rights set forth in the Covenant. It calls upon the parties to a dispute to settle it by peaceful means and
recommends methods of adjustment or terms of settlement.
Interim measures pursuant to rule 86 of the Committee's rules adopted in
conformity with Article 39 of the Covenant, are essential to the Economic and Social Council
Committee's role under the Protocol. Flouting of the Rule, especially by
irreversible measures such as the execution of the alleged victim or The Economic and Social Council is the principal body for
his/her deportation from the country undermines the protection of coordination, policy review, policy dialogue and recommendations on
Covenant rights through the Optional Protocol. economic, social and environmental issues, as well as implementation
of internationally agreed development goals. It has 54 Members,
Marcellano and Gumanoy vs. Philippines | HRC (2007) & elected by the General Assembly for overlapping three-year terms. It is
Lumango and Santos vs. Philippines | HRC (2006) the United Nations’ central platform for reflection, debate, and
innovative thinking on sustainable development.
Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognized the competence of the Committee to Trusteeship Council
determine whether there has been a violation of the Covenant or not and
that, pursuant to article 2 of the Covenant, the State party has undertaken The Trusteeship Council was established to provide
to ensure to all individuals within its territory and subject to its jurisdiction international supervision for 11 Trust Territories that had been placed
the rights recognized in the Covenant, and to provide an effective and under the administration of seven Member States, and ensure that
enforceable remedy in case a violation has been established, the adequate steps were taken to prepare the Territories for self-
Committee wishes to receive from the State party, within 180 days, government and independence. By 1994, all Trust Territories had
information about the measures taken to give effect to the Committee's attained self-government or independence. The Trusteeship Council
Views. suspended operation on 1 November 1994.

HUMAN RIGHTS LAW Notes CHF CARIAGA | 10


Chapter XVI
International Court of Justice THE INTERNATIONAL CRIMINAL COURT

The International Court of Justice is the principal judicial


organ of the United Nations. Its seat is at the Peace Palace in The The ICC is a permanent criminal tribunal created by the
Hague (Netherlands). The Court’s role is to settle, in accordance with Rome Statute. Being a criminal court, only natural persons, so far, may
international law, legal disputes submitted to it by States and to give be brought before the ICC. It is the court of last resort as it will not take
advisory opinions on legal questions referred to it by authorized United cognizance of cases prosecuted before domestic courts.
Nations organs and specialized agencies.
The following principles must concur for the ICC to acquire
Secretariat jurisdiction:

The Secretariat comprises the Secretary-General and tens (1) Ratio materiae – the subject matter, i.e. the crimes charged
of thousands of international UN staff members who carry out the day- must fall under the jurisdiction of ICC.
to-day work of the UN as mandated by the General Assembly and the a. Genocide. Acts committed with intent to destroy a
Organization's other principal organs. The Secretary-General is chief national, ethnical, racial or religious group.
administrative officer of the Organization, appointed by the General b. War crimes. Grave breaches of the Geneva
Assembly on the recommendation of the Security Council for a five- Conventions and serious violations of the laws
year, renewable term. UN staff members are recruited internationally and customs of armed conflict.
and locally, and work in duty stations and on peacekeeping missions c. Crimes against humanity. Acts committed as part
all around the world. of a widespread or systematic attack directed
against any civilian population.
d. Crimes of aggression. The use of armed force by
OFFICES, AGENCIES, PROGRAMMES, a State against the sovereignty, territorial integrity
AND SUBSIDIARY BODIES IN THE UN or political independence of another State, or in
any other manner inconsistent with the Charter of
The principal organs of the United Nations have their own the United Nations
subsidiary bodies, departments, agencies and programs that carry out (2) Ratio temporis – the crime must be committed after the
specific tasks, with the exception of the ICJ and TC. State became a member of the ICC.
(3) Ratio soli – the crime must be committed within the territory
Among the subsidiary bodies in the UNGA are the Human of the member state.
Rights Council, International Law Commission, and Disarmament (4) Ratio personae – the crime must be committed by a citizen
Commission. of the member state.

Human Rights Council The ICC may exercise jurisdiction over criminal cases
referred to the Prosecutor by a State Party; those referred by the
This Council is tasked to strengthen the promotion and Security Council, or those where the Prosecutor initiated an
protection of human rights; it is made up of 47 States and it directly investigation.
reports to the UNGA.
The Rome Statute adopts general principles of criminal law,
Specialized programmes and funds such as nullum crimen sine lege, non-retroactivity of application, and
individual criminal responsibility.
The UNGA and the ECOSOC operate programmes and
funds for the world community. Among these are: UNICED, UN Command Responsibility
WOMEN, UNEP, etc.
A military commander or person effectively acting as a
Specialized agencies, commissions and bodies military commander shall be criminally responsible for crimes within the
jurisdiction of the Court committed by forces under his or her effective
The ECOSOC has several specialized agencies, command and control, or effective authority and control as the case
commissions and bodies. The agencies are autonomous organizations may be, as a result of his or her failure to exercise control properly
which are linked through agreements. Among these are: WHO, over such forces, where:
UNESCO, IMF, etc. (1) That military commander or person either knew or, owing to
the circumstances at the time, should have known that the
Chapter IX forces were committing or about to commit such crimes; and
MILLENIUM DEVELOPEMNET GOALS (2) That military commander or person failed to take all
necessary and reasonable measures within his or her power
Chapter X-XV to prevent or repress their commission or to submit the
PHILIPPINE LAWS PROMOTING THE RIGHTS OF THE CHILD; matter to the competent authorities for investigation and
PROTECTION OF WOMEN’S RIGHTS UNDER PHILIPPINE LAWS; prosecution.
THE RIGHTS OF MIGRANT WORKERS;
THE RIGHTS OF PERSONS WITH DISABILITY; A superior shall be criminally responsible for crimes within
THE RIGHT AGAINS TORTURE; and the jurisdiction of the Court committed by subordinates under his or her
RIGHTS AGAINST ENFORCED DISAPPEARANCES effective authority and control, as a result of his or her failure to
exercise control properly over such subordinates, where:
(1) The superior either knew, or consciously disregarded
information which clearly indicated, that the subordinates
were committing or about to commit such crimes;

HUMAN RIGHTS LAW Notes CHF CARIAGA | 11


(2) The crimes concerned activities that were within the effective International humanitarian law covers two areas:
responsibility and control of the superior; and
(3) The superior failed to take all necessary and reasonable (1) Protection of those who are not, or no longer, taking
measures within his or her power to prevent or repress their part in fighting;
commission or to submit the matter to the competent (2) Restrictions on the means of warfare – in particular
authorities for investigation and prosecution. weapons – and the methods of warfare, such as military
tactics.
Prosecutor vs. Alfred Musema | ICTR (2000)

The Chamber finds that it has also been established that Musema was the ORIGIN OF IHL
superior of said employees and that he not only held de jure power over
them, but also de facto control. Considering that Musema was personally IHL is rooted in the rules of ancient civilizations and
present at the attack sites, the Chamber is of the view that he knew or, religions – warfare has always been subject to certain principles
at least, had reason to know that his subordinates were about to and customs. Universal codification of IHL began in the
commit such acts or had done so. The Chamber notes that the Accused, nineteenth century.
nevertheless, failed to take the necessary and reasonable measures
to prevent the commission of said acts by his subordinates, but rather Since then, States have agreed to a series of practical
abetted in the commission of those acts, by his presence and personal rules, based on the bitter experience of modern warfare. These
participation. rules strike a careful balance between humanitarian concerns and
the military requirements of States. As the international
community has grown, an increasing number of States have
Chapter XVII contributed to the development of those rules.
THE INTERNATIONAL HUMANITARIAN LAW

GENEVA CONVENTIONS
IHL is a set of rules which seek to limit the effects of
armed conflict. It protects persons who are not or are no longer The four Geneva Conventions are:
participating in the hostilities and restricts the means and methods
of warfare. International humanitarian law is also known as the (1) Wounded and Sick Convention. It defines the basis
law of war or the law of armed conflict. on which rest the rules of international law for the
protection of the victims of armed conflicts.
IHL is part of international law, which is the body of (2) Maritime Convention. It adapts the main protections of
rules governing relations between States. International law is the First Geneva Convention to combat at sea.
contained in agreements between States – treaties or (3) Prisoners of War Convention. It defines humanitarian
conventions –, in customary rules, which consist of State practice protections for prisoners of war.
considered by them as legally binding, and in general principles. (4) Civilians Convention. It defines humanitarian
protections for civilians in a war zone.
Two components of IHL

(1) The laws of war or armed conflict THE HAGUE CONVENTIONS


(2) The laws for the protection of the victims of war
The Hague Conventions of 1899 and 1907 are a series
of international treaties and declarations negotiated at two
APPLICATION OF IHL international peace conferences at The Hague in the Netherlands.
Along with the Geneva Conventions, the Hague Conventions
IHL applies only to armed conflict; it does not cover were among the first formal statements of the laws of war and war
internal tensions or disturbances such as isolated acts of crimes in the body of secular international law.
violence. The law applies only once a conflict has begun, and
then equally to all sides regardless of who started the fighting.
FUNDAMENTAL RULES OF IHL
IHL distinguishes between international and non-
international armed conflict. (1) Belligerent States or combatants cannot use methods
and weapons of warfare which are prohibited or
(1) International armed conflicts are those in which at restricted under the IHL –
least two States are involved. They are subject to a a. Failing to discriminate between those taking
wide range of rules, including those set out in the four part in the fighting and those who are not;
Geneva Conventions and Additional Protocol I. b. Causing superfluous injury or unnecessary
(2) Non-international armed conflicts are those suffering; or
restricted to the territory of a single State, involving c. Causing severe or long-term damage to the
either regular armed forces fighting groups of armed environment;
dissidents, or armed groups fighting each other. A more (2) Attacks must be limited to military objectives and must
limited range of rules apply to internal armed conflicts avoid civilians;
and are laid down in Article 3 common to the four (3) Torture, corporal punishment or cruel or degrading
Geneva Conventions as well as in Additional Protocol treatment must not be used;
II. (4) Civilians and persons hors de combat shall be treated
humanely, so shall the enemy who surrenders. The

HUMAN RIGHTS LAW Notes CHF CARIAGA | 12


wounded and the sick shall be afforded treatment and
protection;
(5) Relief and medical providers must be protected

IHL vs. IHRL

It is important to differentiate between international


humanitarian law and human rights law. In particular, human
rights law – unlike international humanitarian law – applies in
peacetime, and many of its provisions may be suspended during
an armed conflict.

Under the IHL, the killing of a combatant in an armed


conflict may be justified. However, HRL apply and must be
observed at all times. Thus, States involved in an armed conflict
must apply a proportionality test to determine the necessity of
killing under IHL in relation to the rights of a person; under IHRL,
before launching an attack.

Protected persons

Persons protected by the Convention are those who, at


a given moment and in any manner whatsoever, find themselves,
in case of a conflict or occupation, in the hands of a Party to the
conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the


Convention are not protected by it. Nationals of a neutral State,
who find themselves in the territory of a belligerent State, and
nationals of a co-belligerent State, shall not be regarded as
protected persons while the State of which they are nationals has
normal diplomatic representation in the State in whose hands they
are.

HUMAN RIGHTS LAW Notes CHF CARIAGA | 13