Human Rights Law - Sarmiento

HUMAN RIGHTS LAW,
HUMAN RIGHTS CULTURE
RENE V. SARMIENTO
—■
INTRODUCTION
Human Rights Law is the branch of public law that deals with the
body of laws, rules, procedures, and institutions designed to respect,
promote, and protect human rights at the national, regional, and
international levels.
A dynamic and productive branch of public law, Human Rights
Law also deals with decisions of the Supreme Court and the Inter-
national Criminal Court and writings of advocates of human rights.
It is because of the dynamism of Human Rights Law, the wealth of
this subject, that I included in the Readings of this new edition, recent
decisions of the Supreme Court, one decision of the International
Criminal Court, Pope Francis’ papal encyclical entitled “Laudato Si”
(2015), the Paris Agreement on Climate Change (2016), the Colombia
Final Peace Agreement (2016) and my article entitled “Social Justice:
Roots and Wings” (2016).
Though not recent, the 2003 article of 1991 Nobel Peace Prize
awardee Aung San Suu Kyi entitled “Freedom From Fear” adds an Asian
and woman voice to the rich human rights discourse, serving as a
constant reminder and continuing challenge to those who seek to wage a
revolution by human rights law.
The inclusion of human rights law in the curriculum of all law
schools in the country is one development worth rejoicing. It signals the
mainstreaming into the study of law one subject that has, through so
many decades, undergone rapid growth and has acquired its own
dynamic. From the time it first appeared on the international agenda
when the United Nations Charter declared in its preamble that the
United Nations is determined “to reaffirm faith in fundamental human
rights, in the dignity and worth of the human person, in the equal rights
of men and women and of nations large and small” and “to promote social
programs and better standards of life in larger freedom,” human rights
law has become an important component of discourses and debates at the
national and global arenas, an inspirational tool and moral force in
schools, in peace processes and in social upheavals and has wormed its
vii
way in domestic, regional, and international legal systems and in peace
agreements. For instance, Article II, Section 11 of The 1987
Constitution of the Philippines provides that the “State values the
dignity of every human person and guarantees full respect for human
rights." Article 1 of The 1992 Constitution of Czech Republic states that
the “Czech Republic is a sovereign, unified, and democratic law-abiding
State, based on the respect for the rights and freedoms of the individual
and citizen.”
The basic source of human rights is the 1948 Universal Dec-
laration of Human Rights that has profoundly shaped and influenced
local and international landscapes. One Filipino who figured
prominently in the drafting of this Declaration was Carlos P. Romulo
who served as the President of the Fourth Session of UN General
Assembly from 1949-1950. Author Morsink is correct that there is today
“not a single nation culture or people that is not in one way or another
enmeshed in human rights regimes” (Morsink, 1999, p. 5).
May this book serve as a useful storehouse of human rights
information and as an encouraging instrument to equip law students
and lawyers, workers in government and non-government sectors,
advocates and social entrepreneurs an understanding of human rights,
international instruments, approaches, remedies and preventive
mechanisms aimed at addressing human rights violations and human
rights abuses. And may this book contribute in ushering a “human
rights spring” in the Philippines and various parts of the globe.
RENE V. SARMIENTO
FOREWORD
I first met Rene Sarmiento when I led a teachers’ union in Jose Rizal
College in the early eighties during martial law. The late Senator Jose
Diokno, whom we all fondly called Ka Pepe, organized the Free Legal
Assistance Group (FLAG) where Rene became an active member as a
human rights lawyer. Ka Pepe helped me organize the union by explaining
to the members, composed of teachers and non-teaching personnel, the
importance of a unified, collective and informed voice for defending and
promoting teachers’ rights. When the school refused to give in to our
demands, FLAG assigned Rene to be our legal counsel when we finally
waged our strike. He stood by us in the thick of the strike and I learned in
practical struggle how to defend human rights at the picket lines. Though
we lost the strike — the vigilant strikers were all removed from office —
the school came to improve its policies in wages, working conditions and
security of tenure for both teachers and non-teaching personnel.
My second encounter with Rene was when he was chosen as one of
the framers of the 1987 Constitution. Because we were so much a part of
the people’s movement that fought the dictatorship, the street
parliamentarians who were chosen to write the Charter continued their
ties with those of us who had our work in communities, factories and
schools, organizing and mobilizing various sectors of the community in
defending and promoting our specific rights as teacher, student, lawyer,
church worker, farmer, and businessman. As a member of the
Constitutional Commission, Rene was among the more active human
rights lawyers who touched base with us and consulted us often while
deliberations were ongoing in the framing of the post-Marcos charter.
The book on “Human Rights Law, Human Rights Culture” puts on
record the basics of human rights, its development and the remedies that
are made available when such rights are violated. It reminds all and
sundry — students in secondary or tertiary levels, teachers, ordinary
citizens — the rudiments of what makes human rights. As Ka Pepe put it
succinctly, the enjoyment of human rights
ix
mmm
is what makes a person human, Thu laws un human right* muni therefore
be fully enforced in order to ensure that human being* both individually
and collectively are able to realize their self'worth and humanity.
At a time when milestone laws on human rights have been passed,
such as the law on the reparation and recognition of victim* of martial law,
the law against torture, the law criminalizing enforced disappearance, the
law on reproductive health care, the magna carta of women and the like,
this book on human rights is a timely reader that can help the ordinary
Filipino understand how he or she can in fact enjoy the benefits and
entitlements of thoso new pieces of legislation.
In behalf of the Commission on Human Rights, let me oxpross our
deep gratitude and appreciation to Rene Sarmiento for taking time out to
write this human rights book to make accessible to the ordinary citizen
and student the importance of human rights in our daily life.
Loretta Ann P. Rosales

Chairperson
Commission on Human Rights
CONTENTS
Page
Dedication...................................................................................... iii
About the Author......................................................................... v
Introduction .................................................................................. vii
Foreword......................................................................................... ix
Acknowledgment ............................................................................ xi
Chapter 1
THE NATURE OF HUMAN RIGHTS
Definition......................................................................................... 1
Kinds ........................................................................................... 1-3
Principles ......................................................................................... 3
Characteristics ................................................................................ 4
Components ................................................................................. 4-5
Stages .............................................................................................. 5
Three Obligations of State Parties.............................................. 5-6
Readings .......................................................................................... 6
Chapter 2
SOURCES AND FOUNDATIONS
OF HUMAN RIGHTS LAW
The 1987 Constitution............................................................... 7-8

The InternationalBill of Rights ................................................ 8-9
Philosophy ..................................................... . ..... ......... ... 9-10
Religion ................................................................................. 10-11
Readings ................... ... ................ ................................ 11-12
Chapter 3
CIVIL AND POLITICAL RIGHTS
(FIRST GENERATION OF RIGHTS)
Bill of Rights in The 1987 Constitution ............... .... .... 13-14

Comprehensive Agreement on Respect for Human
Rights and International Humanitarian Law ....... 14-15
xiii
Universal Declaration of Human Rights ...... ........ .... 15
International Covenant on Civil and (•
Political Rights ................................... ... 15-10
Reading's .......... ... .............................................. ... j.g J
Chapter 4
ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
(SECOND GENERATION OF RIGHTS)
Social Justice and Human Rights in The 1987

Constitution ........................................................................... 17
Universal Declaration of Human Rights ........................................ 18
The International Covenant on Economic, Social, and
Cultural Rights ............ ... ............................................... 18*19
Readings............................................................................................ 19
Chapter 5
SOLIDARITY/COLLECTIVE RIGHTS
(THIRD GENERATION OF RIGHTS) J
Peace, Development, Environment ......................................... 20*22 <
Women, Children, Persons with Disabilities, I<
Indigenous Peoples .................. . ................... ... .........:i 22 j *
Women ........................................................................................ 22
Children ........................................................................... 22-23
Persons with Disabilities (PWDs) ...................................... 23-24
Indigenous Peoples .......... ................................................. 24-25
Readings .............................................................................. 25-26
Chapter 6
REMEDIES AND PROCEDURES FOR RESPONDING
TO HUMAN RIGHTS VIOLATIONS AND HUMAN
RIGHTS ABUSES
Human Rights Violations ........................................................... 27
Remedies ........................................................................... 27-28
Domestic Remedies.......... ......... .. .............. .................. 28-29
Administrative Remedies ............................................................. 29
International Remedies ............................................................ 30
The Reporting Requirement .... ................................................ 30
Investigation of Communications/Complaints..... ..... .... 30-31
The International Criminal Court .......................................... 31-32
The Public 1235 Procedure.... ........ .......... ..... ......... ... ....... 32
The Confidential 1503 Procedure ........................................... 32-33
XIV
Special Country Rapporteurs and Thematic
Rapporteurs ................................................................... 33-34
Readings ...................................................................................... 34
Chapter 7
PREVENTIVE MECHANISMS IN THE FIELD
OF HUMAN RIGHTS
The Office of the UN High Commissioner
for Human Rights .......................................................... 35-36
National Human Rights Institutions ..................................... 36-37
Non-Governmental Organizations (NGOs) ............................ 37-38
Readings .................................................................................... 38
Chapter 8
THE JUDICIARY, THE ACADEME,
AND THE FAMILY ON BUILDING
A HUMAN RIGHTS CULTURE
Human Rights Culture ............................................................... 39
The Judiciary ......................................................................... 39-41
The Academe ......................................................................... 41-42
The Family............................................................................. 42-43
Readings .................................................................................... 43
Chapter 9
THE ROAD AHEAD.............................. 44
APPENDICES
The 1987 Constitution —

Preamble, Article II (Declaration of Principles
and State Policies), Article III (Bill of Rights),
Article XIII (Social Justice And Human Rights)...... 47-57
Universal Declaration of Human Rights.... ........................... 58-64
International Covenant on Civil and Political Rights .... 65-87
International Covenant on Economic, Social and
Cultural Rights ........................................................ 88-100
i Comprehensive Agreement on Respect for Human
Rights and International Humanitarian Law ..... 101-115
'■J References ............................... ... ......... ... . ... .......... . 116-119
xv
Chapter 1
Definition
Human Rights are the aggregate of privileges, claims, benefits,
entitlements, and moral guarantees that pertain to man because of his
humanity. Chilean lawyer Jose Zalaquett wrote that human rights are
regarded as a system of values or elements which are inherent to
human dignity. In his book, “The Rights of Man” French philosopher
Jean Jacques Maritain stressed why man has rights. “The human
person,” he said, "possesses rights because of the very fact that it is a
person, a whole, master of itself, and of its acts, and which
consequently is not merely a means to an end, but an end which must
be treated as such” (,Sarmiento, 1993, p. 3).
Pope John XXIII shares the thoughts of Jean Jacques Maritain.
In his papal encyclical “Pacem In Terris,” he showed the connection
between a human person and his possession of rights. He wrote that
“any human society, if it is to be well-ordered and productive, must lay
down as a foundation, this principle, namely, that every human being
is a person, that is, his nature is endowed with intelligence and full
will. By virtue of this, he has rights and duties, flowing directly and
simultaneously from his very nature....” (pp. 3-4).
Human rights are also defined as “legal and moral entitlements
that have evolved as a basis for constructing how state power is used
and particularly to limit its use against the rights of citizens”
(Wahiu, 2011, p. 3).
Human rights lawyer and civil libertarian Jose W. Diokno said
in 1981 that “no cause is more worthy than the cause of human rights”
and “they are what make man human” (Diokno, 1982, p. 20).
Kinds
The rights of every person are so many, compelling Czech-
French jurist Karel Vasak in 1979 to classify them into three
2 HUMAN RIGHTS LAW, HUMAN
generations of rights. The first generation is known as the first

generation of civil and political rights. The second generation is known
as the second generation of economic social and culturalrights. The
third generation is known as the third generation of solidarity rights or
collective rights. Karel Vasakfs tizthree divisions follow the French
Revolution's three slogans: Liberty, Equality, Fraternity.
1. The first generation of rights gradually evolved over
centuries during the long development of democratic society and serve
as a protection of the individuals from the arbitrary exercise of police
power. Examples of these rights are the right TO LIFE liberty and
security of person; right against torture;right-ID equal protection
against any discrimination; right against arbitrary arrest and
detention; right to a fair and public hearing by an independent and
impartial tribunal; right to be presumed innocent until proven guilty;
right to privacy, freedom of opinion and expression, etc. The first
generation of civil and political rights is also known as the first
generation of liberty rights.
Winluck Wahiu writes that civil and political rights are individual
rights against the state and are partly seen as negative rights because they
prevent the state from the performance of certain things that are considered
harmful (Wahiu, p. 3).
2. The second generation of rights started to be recognized when
people realized that possession of the first generation of liberty rights
would be valueless without the enjoyment of economic, social, and cultural
rights. The experience of the Third World countries in their struggle
against colonialism, the influence of Socialism and the encyclicals of the
Popes all contributed to the development and appreciation of the economic,
social, and cultural rights. Examples of these rights are the right to work,
right to social security, right to form and to join trade unions; right to
education, right to rest and leisure, right to health, right to shelter, etc.
The second generation of economic, social, and cultural rights is also
known as the second generation of equality rights.
3. The third generation of rights is intended to benefit
individuals, groups and peoples and its realization will need global
cooperation based on international solidarity (Rosas and Scheinin, 1999, p.
65). Examples of these rights are right to peace, right to development,
environmental rights, right of self-determination, right to food, rights of
women, rights of children, and right to
CHAPTER 1 3
humanitarian disaster relief. The latest right is right to water. This

third generation of rights is also known as the third generation of
solidarity rights.
Principles
The three principles of human rights are universality,
indivisibility, and interdependence.
Universality means that rights belong to and are to be enjoyed by
all human beings without distinction of any kind, such as race, color, sex
or language, religion, political and other opinion, national or social
origin, property, birth or other stature. In other words, human rights
belong to everyone wherever they are because they are human beings
endowed with dignity (Sarmiento, 1995, p. 49).
Universality also means that the internationally-recognized
human rights are the basic core minimum to be observed everywhere
without regional differences. These human rights belong to everyone,
everywhere, by virtue of being human. No one, no group, no place in the
world should be denied the enjoyment of human rights (p. 50).
The two related principles of indivisibility and inter-dependence
mean that the first generation of liberty rights and the second
generation of equality rights are inter-related and are co-equal in
importance. They form an indivisible whole and only if these rights are
guaranteed that an individual can live decently and in dignity (p. 51).
The international community must treat human rights in equal
manner, on the same footing, and with the same emphasis (p. 52).
The experience of Jose W. Diokno in handling human rights
cases involving the marginalized and basic sectors confirms the validity
of the principles of indivisibility and interdependence of human rights.
He said:
“As lawyer for small farmers, fishermen, workers,
students, and urban poor, many of whom have been
detained, most of whom have been threatened with
detention, a few of whom have been shot and wounded,
when they were peacefully exercising their rights of
assembly, I have learned the painful lesson that we cannot
enjoy civil and political rights unless we enjoy economic,
cultural and social rights, anymore than we can insure our
civil and political rights. True, a hungry man does not have
much freedom of choice. But equally true, when a well fed
man does not have freedom of choice, he cannot protect
himself against going hungry” (at p. 51).
4 HUMAN RIGHTS LAW, HUMAN RIGHTS CULTURE
Characteristics
Human rights are inherent, inalienable, and universal.
Inherent means that rights are the birthright of all human beings,
existing independently of the will of either an individual human being or
group. They are not obtained and granted through any human action or
intervention (Piechowiak> 1993, p. 5). When one is born, he carries with
him these rights. They cannot be separated or detached from him.
Inalienable (“unalienable” according to America’s Declaration of
Independence) means that no person can deprive any person these rights
and no person can repudiate these rights by himself (p. 6). It also means
that these rights cannot be the subject of the commerce of man.
Universal means that these rights belong to every human being, no
matter what he or she is like (p. 5). Because rights are universal, its
promotion and protection are the duty of all States, regardless of cultural,
economic or political systems.
Components
The four components of a human right are a subject or a rightholder,
a duty-holder, an object and implementation.
A subject or a right-holder is an individual (natural person), a group
of individuals or a non-governmental organization entitled to rights
under the law and can take legal action to protect or to promote those
rights (Drzewicki, 1993, p. 28).
A duty-holder is an entity, normally a State that is obliged to
respect, to ensure and to protect the subject’s rights or demands. In
human rights, States are considered a duty-holders rather than subjects
though in international law the role of States as subjects is recognized as
incontestable (pp. 28-29).
An object is the content of any given right and any duty of the holder
of the right and the holder of the obligation. This right and this duty are
the human values and needs which are found in human rights rules and
norms (p. 29).
The implementation is a set of measures, approaches, and
initiatives designed to realize the right concerned: This includes laws,
administrative measures, legal writs and mechanisms adopted by the
three branches of government, namely, Congress, Executive and
Judiciary (p. 29).
CHAPTER 1 5
A sample subject or right-holder and an object or content of a human

right can be found in Article III, Section 12 of the 1987 Constitution that
provides “1. Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and
to have competent and independent counsel preferably of his own choice.”
There are many more in the Article on the Bill of Rights and Article on
Social Justice and Human Rights of the 1987 Constitution.
Stages
The three stages of human rights are idealization, positivization,
and realization.
Idealization means that notions about human rights have started in
the realm of ideas that reflect a consciousness against oppression,
dehumanization or inadequate performance by the State ([Drzewicki, 1993,
p. 25).
Positivization is the second stage where support for the ideas
became strong and the stage is set to incorporate them into some legal
instruments, whether domestic law or international law (p. 25).
Realization is the last stage where these rights are enjoyed by the
citizens of the State by the transformation of the social, economic, and
political order (p. 25).
Three Obligations of State Parties

State Parties to International Covenants have obligations: obligation to
respect, obligation to ensure, and obligation to protect.
Article 2(1) of the International Covenant on Civil and Political
Rights (ICCPR) contain the obligation to respect. It indicates the
negative character of civil and political rights, commanding State Parties
to refrain from restricting the exercise of these rights where such is not
expressly allowed. Take the example of prohibition of torture in Article 7
of ICCPR. It is absolute, meaning, States must refrain from practicing
torture under all circumstances. Other provisions like right to life in
Article 6(1) of ICCPR or the protection of privacy in Article 17 of ICCPR
only prohibit arbitrary interference. Other provisions like the political
freedoms in Articles 18, 19, 21, and 22 of ICCPR authorize the State
Parties to impose restrictions (Nowak, 1997, p. 87).
Article 2(1) of the same International Covenant on Civil and

Political Rights (ICCPR) containing the obligation to ensure indicates
the positive character of the civil and political rights and the economic,
social, and cultural rights. Under the obligation, State Parties must be
proactive to enable individuals to enjoy their rights.
In concrete, this means that State Parties has the obligation under
Article 2(2) to adopt executive, judicial, and legislative measures, to
provide an effective remedy to victims of human rights violators under
Article 2(3) and to safeguard certain rights by means of procedural
guarantees and legal institutions (p. 87).
The obligation to ensure includes the obligation to protect. And
this means preventing private individuals, groups or entities from
interfering with the individual’s civil and political rights. The
horizontal efforts (application of human rights between individuals or
other private subjects) depend on the wording of a given right. For
example, the prohibition of slavery in Article 8 of ICCPR or the
prohibition of advocacy of racial hatred in Article 20 of ICCPR applies
primarily on the horizontal level. The right to the protection of law
under Articles 6, 17, 23, 24, and 26 signify the need to take positive
means, to protect children, the family and the rights to life, liberty and
equality (pp. 87-88).
Readings:
Simon v. Commission on Human Rights, G.R. No. 100150, January
5,1994
Soriao v. Pineda, CA-G.R. SP No. 31546, August 10,1994
Oposa v. Factoran, 224 SCRA 792 (1993)
Baldoza v. Dimaano, 71 SCRA 152 (1976)
David v. Pres. Gloria Macapagal-Arroyo, et al., G.R. No. 171396
(2006)
Almario v. The Executive Secretary, 701 SCRA 269 (2013)
Vivares v. St Theresa's College, G.R. No. 202666, September 29,
2014
Pestilos v. Generoso, G.R. No. 182601, November 10, 2014
Sen. Jinggoy Estrada v. Ombudsman, G.R. Nos. 212140-41, January
21, 2015
Chapter 2
SOURCES AND FOUNDATIONS
OF HUMAN RIGHTS LAW
The 1987 Constitution

The basic source of human rights law in the Philippines is The
1987 Constitution. It is rich in human rights content and constitutes a
vast improvement of the previous Philippine Constitutions, namely,
The 1897 Biak-na-Bato Constitution, The 1899 Malolos Constitution,
The 1935 Constitution, The 1943 Constitution, The 1973 Constitution
and The 1986 Freedom Constitution. In it are found the first generation
of rights (Article III, Bill of Rights), the second generation of rights
(Article XII, National Economy and Patrimony; Article XIII, Social
Justice and Human Rights; Article XIV, Education, Science and
Technology, Arts, Culture and Sports) and the third generation of rights
(Article II, Declaration of Principles and State Policies; Article XV, The
Family),
A novel feature of the 1987 Constitution is the independent
constitutional office called the Commission on Human Rights, one of
the first national human rights commissions in the world. Two of its
important functions under Section 18, Article XIII of The 1987
Constitution are to investigate human rights violations involving civil
and political rights either committed by the government or by
non-governmental entities and to establish a program of education and
information to enhance respect for the primacy of human rights.
$ The 1987 Constitution has been the basis of laws passed by
Congress dealing with the first generation of rights like Republic Act
No. 7438 (Rights of Persons Arrested, Detained or Under Custodial
Investigation), Republic Act No. 8493 (Speedy Trial Act of 1998),
Republic Act No. 10350 (Anti-Enforced Disappearance Act), Republic
Act No. 9745 (Penalizes Acts of Torture), Republic Act No. 9851
(Penalizes Crime Against International Humanitarian Law, etc,) and
Republic Act No. 10368 (Creation of Human Rights Victims Claims
Board)*, those dealing with second generation of
rights like Republic Act No. 6657 (Comprehensive Agrarian Reform Law),
Republic Act No. 7279 (Urban Development and Housing Act of 1992),
Republic Act No. 8282 (Social Security Act of 1992), Republic Act No. 6938
(The Cooperative Code), Republic Act No. 8435 (Agriculture and Fisheries
Modernization Act of 1997); and those dealing with third generation of rights
like Republic Act No. 7192 (Women in Development and Nation-Building Act),
Republic Act No. 8505 (Rape Victim Assistance and Protection Act of 1998),
Republic Act No. 6955 (Declares Unlawful the Practice of Matching Filipino
Women for Marriage To Foreign Nationals on a Mail Order Basis), Republic
Act No. 9710 (An Act Providing for the Magna Carta of Women), Republic Act
No. 7610 (An Act Providing For Stronger Deterrence and Special Protection
Against Child Abuse, etc.), Republic Act No. 8749 (Philippine Clean Air Act
of1999), Republic Act No. 9003 (Ecological Solid Waste Management and
Protection Act) and Republic Act No. 9147 (Wildlife Resources Conservation
and Protection Act).
The 1987 Constitution is sometimes called a Human Rights
Constitution because of its many human rights and human rights- related
provisions found in several of its Articles.
The 1987 Constitution is the seventh Constitution drafted by Filipinos.
The six Constitutions were The 1897 Biak-na-Bato Constitution, The 1899
Malolos Constitution, The 1935 Constitution, The 1943 Constitution, The
1973 Constitution and The 1986 Freedom Constitution. All seven
Constitutions have provisions on human rights.
The International Bill of Rights

The 1987 Constitution contains an Incorporation Clause found in its
Article II, Section 2, stating “[T]he Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles of
international law as part of the land. ...” This clause made possible the
application in the Philippines of the human rights principles stated in the
International Bill of Rights (composed of the threesome Universal
Declaration of Human Rights, the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and
Cultural Rights).
U Thant, former Secretary General of the United Nations has called
the three documents plus the Optional Protocol to the Covenant on Civil and
Political Rights as “a Magna Carta for mankind” and “is the essential
prerequisite for peace at home and in the world” (Sarmiento, 1993, p. 6).
CHAPTER 2 9
SOURCES AND FOUNDATIONS OF HUMAN RIGHTS LAW
The Commission on Human Rights of the United Nations was

tasked to prepare the Universal Declaration of Human Rights. The
Commission established a drafting committee composed of eight
members chaired by Mrs. Eleanor Roosevelt. In 1948, the Commission
after holding eight meetings over almost two years, adopted the draft
Declaration and submitted it to the UN General Assembly through the
Economic and Social Council. On December 10, 1948, the General
Assembly adopted the Declaration at the Chaillot Palace in Paris. The
Declaration was adopted by 48 votes in favor, none against and eight
abstentions (Byelorussia, Czechoslovakia, Poland, Saudi Arabia, South
Africa, Ukraine, USSR, and Yugoslavia) (Drzewicki, 1997, p. 71).
The Preamble to the Declaration is important because it refers to
the concepts of inherent human dignity and the inalienable nature of
human rights as the philosophical sources of the Declaration and
inspiration for further development of human rights. The Preamble calls
for inter-cultural consensus by indicating that “a common understanding
of the rights and freedoms is of greatest importance for the full
realization” of the pledge of Members of the United Nations to achieve
the promotion of universal respect for and observance of human rights
and fundamental freedoms (Ibid.).
The Preamble’s reference to “freedom of speech and belief and
freedom from fear and want” in its paragraph 2 reflects the Four
Freedoms Message to the U.S. Congress by Franklin D. Roosevelt in
January, 1941 (p. 72).
Today, the Declaration is considered as the first internationally
adopted catalogue of human rights and is one of the best legal
instruments on human rights ever adopted (p. 73). It sets the
Guinness World Record for most translated document in the world.
Former High Commissioner for Human Rights, Mary Robinson, said
that the common language of humanity, the language of human rights,
is enshrined in the Declaration (Office of the High Commissioner of
Human Rights, 2013).
Philosophy
The other sources of human rights are philosophy and religion.
The writings, exposition and discourses of John Locke, Jean
Jacques Rousseau, Baron de Montesquieu, Immanuel Kant,
Thomas Hobbes, John Stuart Mill and others influenced the
development and enrichment of human rights. These Western
thinkers inspired
the formulation of the Universal Declaration of Human Rights the

English Bill of Rights (1689), the American Declaration of
Independence (1776), the French Declaration of the Rights of Man and
of the Citizens (1798) and other human rights instruments,
John Locke (1632-1704), English philosopher, wrote the Second
Treatise of Government where he argued that sovereignty resides in the
people and explained the nature of government in terms of natural
rights and social contract. He wrote that legitimate government is
instituted by the covenant of the governed and that this legitimate
government is duty-bound to preserve the rights of life, liberty, health
and property of its citizens; and, to prosecute and punish those who
violate the rights of others and to pursue the public good. This social
contract theory is what permeates many national constitutions today
(Standard Encyclopedia of Philosophy, 2012).
Jean Jacques Rousseau (1712-1978), a Franco-Swiss philosopher,
authored his masterpiece “The Social Contract” Here, he postulated a
social contract by which the citizens surrender their rights to the
“general will” of the people which must aim at the impartial good.
Submission to the authority of the “general will” of the people by the
citizens who joined together into civil society through the social contract
and abandoning their claims of natural right, citizens preserve
themselves and remain free (Standard Encyclopedia of Philosophy,
2010).
Baron de Montesquieu (1689-1755), a French philosopher, wrote
“The Spirit of the Laws* his magnum opus, to explain human laws and
institutions. He saw despotism “a single person directs everything by his
own will and caprice,” as a standing danger for any government not
despotic and argued that it could best be prevented by a system of
separation of powers in which different bodies exercise legislative,
executive, and judicial powers. Today, this theory of separation of powers
that initially inspired the U.S. Constitutional Convention of 1787 is what
underlies many modem governments (Britannica Concise Encyclopedia).
Religion
Embedded in the sacred scriptures and books of the world’s
religions are lessons and teachings on human dignity, sanctity of life,
worth of conscience, social justice, respect for the integrity of creation,
rights of prisoners, rights of persons with disabilities,
CHAPTER 2 n
SOURCES AND FOUNDATIONS OF HUMAN RIGHTS LAW
rights of minorities, rights of children, etc. In Christianity, one finds them in

the Old Testament and New Testament.
Amos 5:24 commands “let justice flow like a stream, and
righteousness like water that never goes dry.”
Isaiah 61:1-3 instructs us “to bring good news to the poor,” “to heal the
broken hearted,” and “to announce release to captives.”
Matthew 26:35 reminds us that one who is blessed by God and one who
will inherit the Kingdom is he or she who gives food to the hungry, drink to
the thirsty, clothing to the naked, care to the ill and visitation to those in
prison.
Luke 1:46 is the Canticle of Mary and it speaks of the Mighty One who
has dispersed the arrogant mind and heart, thrown down the rulers from
their thrones but lifted up the humble and filled the hungry with good things.
In the “ Our Father” the prayer taught by Jesus Christ, we are told
about the Father of all who gives food (material/spiritual bread, etc.) to His
children.
The primacy attached to life and dignity of the human person, the
principle of tolerance based on the inalienability of personal conscience,
respect for dwelling and the right to asylum are found in Islam.
Koran 5:2 states that “who so slays a soul not to retaliate for a soul
slain, nor for corruption done in the land, shall be us if he had slain mankind
altogether.
Koran 2:84 requires that “Ye shall not shed your brother’s blood, nor
dispossess one another of your habitations.”
Readings:
Article II, Article III, Article XIII, The 1987 Constitution of the
Philippines
Universal Declaration of Human Rights
Mejoff v. Director of Prisons, 90 Phil. 70 (1951)
Kuroda v. Jalandoni, 42 O.G. 4282
John Locke’s Second Treatise of Government
Amos 5:24, Isaiah 61:1-3 (Old Testament); Matthew 26:35, Luke 1:46
(New Testament)
Koran 5:2, Koran 2:84
Chapter 3
Bill of Rights In The 1987 Constitution

The Bill of Rights is a regular fixture in all Philippine Consti-
tutions, except in the Biak-na-Bato Constitution of 1897. In the 1935
Constitution, the 1973 Constitution and the 1986 Freedom
Constitution, it was called Bill of Rights. In the 1943 Constitution, it
was calle(LD_uties_ and_Rights of the Citizen and in the 1899
Malolos Constitution, it was called The Filipinos and Their National
and Individual Rights. It is Bill of Rights in the 1987 Constitution.
The Bill of Rights is an enumeration of civil and political rights
that are self-executing (no need of implementing legislation) and
serves as a restriction upon the powers of the State. Government, in
order to preserve constitutional harmony and stability has to honor
and respect these rights while exercising its fundamental powers like
police power, eminent domain, and taxation. “What the Bill of Rights
does,” wrote Fr. Joaquin Bernas, S.J., “is to declare some forbidden
zones in the private sphere inaccessible to any power holder” (I
Record of the Constitutional Commission of 1986, p. 674).
The provisions in Article III (Bill of Rights), The 1987
Constitution in relation to Article IV (Bill of Rights), The 1973
Constitution can be classified into four types. They are: (1) the
completely new provisions like Section 12(4), Section 18(1), and
Section 19(2); (2) the old provisions that contain amendments bv
addition like Section 4, Section 6, Section 7, Section 11, Section 12(1),
Section 12(2), Section 12(3), Section 13 and Section 19(1); (3) the old
provisions where words and phrases were amended bv deletion like
Section 2 and Section 15; and (4) the old provisions that remained
intact like Section 1, Section 3(1), Section 5, Section 9, Section 10,
Section 20, Section 21, and Section 22.
13
H
.|J
mrnmmmm m
The Bill of Rights in the 1987 Constitution traces its beginning

to Britain’s 1689 Declaration of Rights that later on became known as
Bill of Rights of 1689. The Bill of Rights of1689 recognized, among
others, the right of the subjects to petition the king, the free election | '
of members of Parliament, the freedom of speech and debates in Parliament, the
prohibition against excessive bail and excessive J
fines and the non-infliction of cruel and unusual punishment. ^
The Bill of Rights of 1689 influenced the inclusion of Bill of *
Rights in the State Constitutions of Massachusetts, New Jersey, I t
and Virgina and finally the introduction of the first 10 amendments I 8
to the U.S. Constitution which are now known as the Bill of Rights | ^
of 1791. 'i
t<
Comprehensive Agreement on Respect for Human Rights ^
and International Humanitarian Law j^
This is the first substantive agreement signed by the Negotiating Panels of the
Government of the Republic of the Philippines j |n
and the National Democratic Front on March 16,1998 in The Hague,
The Netherlands. It took many years of peace talks between the two
Panels at various venues at The Netherlands and of consultations with
their principals before the draft was completed and signed. |^
This Comprehensive Agreement consists of seven parts. I ai
They are: (1) the Preamble which introduces the Agreement and ; m
articulates the reasons for and the intention of the parties in entering * I\
into the Agreement; (2) Declaration of Principles; (3) Bases, Scope, pi
and Applicability; (4) Respect for Human Rights; (5) Respect for | (I)
International Humanitarian Law; (6) Joint Monitoring Committee; and (7) Final
Provisions. |y
The three principles of human rights, namely, universality, JW
indivisibility, and interdependence are enunciated in the Agreement J
through numerous rights like the right of the people to oppose oppression and
tyranny; the right of the victims and their families j ^
to adequate compensation and indemnification, restitution, and ! ^
rehabilitation; the right to effective sanctions and guarantees J rc
against repetition of human rights violations and impunity; the | p<
right against summary executions (salvaging) and involuntary disappearances; the
right not to be subjected to physical or mental | tl
torture, solitary confinement, rape, and sexual abuse; the equal 4 w
right of women in all fields of endeavor; the right of children and
disabled to protection, care and a home; the rights of the minority
CHAPTER 3 15
communities in the Philippines to autonomy, to their ancestral lands

and the natural resources in these lands, etc.

Article 3 to Article 21 of the Declaration contains the catalogue of
civil and political rights of the first generation. These are the right to
life, liberty, and security; freedom from slavery and servitude; freedom
from torture and inhuman treatment or punishment; the right to
recognition as a person before the law; freedom from arbitrary arrest,
detention or exile; the right to equal protection of the law; the right to
an effective remedy; the right to a fair trial; the right to privacy;
freedom of movement and residence; the right to nationality; freedom
of thought, conscience and religion; freedom of opinion and expression;
freedom of assembly and association; the right to property; the right to
participate in government, etc. (Drzewicki, 1999, p. 73).. .
International Covenant on
Civil and Political Rights
This Covenant was adopted unanimously by 106 States and
entered into force in 1976. It is divided into a Preamble and six parts.
Parts I to III (Articles 1 to 27) contain all substantive rights and some
general provisions like prohibition of discrimination and misuse,
gender equality, a derogations and a savings clause. Parts IV to VI
(Articles 28 to 53)^ contain the international monitoring provisions,
some principles of .interpretation and final clauses CNowak, 1999, pp.
84-85).
The individual rights enumerated in Part III include right to life
(Article 6), the prohibition of torture and inhuman prison conditions
(Articles 7 and 10), the prohibition of slavery (Article 8), the right to
personal liberty and security, including prohibition of detention for
debt (Articles 9 and 11), freedom of movement and protection of aliens
against arbitrary expulsion (Articles 12 and 13), procedural guarantees
in civil and criminal trials including prohibition of retroactive criminal
laws (Articles 14 and .15), recognition, of legal personality (Article 16),
etc. (p. 85).
The first Optional Protocol to the Covenant which provides for
the possibility of individual complaints was adopted by 66 to 2 votes,
with 38 abstentions. On December 15, 1989, a second Optional
Protocol aimed at the abolition of the death penalty was adopted by

59 to 28 votes, with 4S abstentions (pp. 83-84).
Readings:
Orquiola v. Tandang Sora Development Corporation, 386
SCRA301 (2002)
Stonehill v. Diokno, 20 SCRA 383 (1967)
Government of Hongkong v. Olalia, G.R. No. 153875, April
19, 2007
Time, Inc. v. Hill, 385 U.S. 374 (1967)
Hudgen v. National Labor Relations Board, 424 U.S. 507
(1976) Ru&i v. Provincial Board of Mindoro, 39 Phil. 660 U.S.
v. Bustos, 37 Phil.731
Disini v. Secretary of Justice, G.R. No. 203335, February 18,
2014
Araullo v. Aquino III, G.R. No. 209287, July 1, 2014
Diocese of Bacolod v. COMELEC, G.R. No. 205728, January
21, 2015
Chapter 4

Social Justice and Human Rights

in The 1987 Constitution
The Article on Social Justice and Human Rights is an
innovation in the 1987 Constitution. It is not found in previous
Philippine Constitutions. It contains a rich inventory of economic,
social and cultural rights like rights of all workers to selforganization,
collective bargaining, and negotiations, and peaceful concerted
activities; right to security of tenure, humane conditions of work, and
a living wage; right to agrarian and natural resources reform; right to
urban land reform and housing; right to health; and right of working
women by providing them safe and healthful working conditions.
Social justice is not defined in the 1987 Constitution. But
Commissioner Teresa Nieva, Chairperson of the Committee on Social
Justice in the 1986 Constitutional Commission, said that social justice
is the centerpiece of the 1987 Constitution and rights, dignity, and
participation remain illusory without social justice. It was Jose P.
Laurel, in Calalang v. Williams (70 Phil. 726), who defined social
justice as "neither communism nor despotism, not atomism, nor
anarchy, but the humanization of laws and the equalization of social
and economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated...
The inclusion of the second generation of rights found in the
Article on Social Justice and Human Rights of The 1987 Constitu-
tion is an acknowledgment of its equally important status vis-a-vis
the first generation of rights.
17

The Declaration is not only a repository of the first generation
of rights but also of the second generation of rights. Articles 22 to 27
enumerates these rights as the right to social security, the right to
work, the right to rest and leisure, the right to an adequate standard
of living, the right to education and the right to participate in the
cultural life CDrzewicki, 1997, p. 73). '
The second generation of rights in the Declaration has served
as an inspirational tool for regional human rights instruments and
national constitutions. The African Charter on Human and People’s
Rights protects the right to work in Article 15, the right to health in
Article 16, and the right to education in Article 17. The European
Social Charter recognizes right to work, to favorable working
conditions, the right to join trade unions and to take collective labor
in Articles 1 to 10, the right to health in Article 11, the right to social
security, including the right to medical assistance and right to social
welfare services in Articles 12 to 14.
International Covenant on Economic,

Social, and Cultural Rights
This Covenant. is the sister covenant of the International
Covenant on Civil and Political Rights. The two sister covenants
were adopted unanimously by 106 States.
The Covenant consists of 31 Articles contained in six
sections: the Preamble and Parts I to V. The meat of the
Covenant is found in Part III that lists the rights to be
protected. These rights are the right to work (Article 6), the
right to fair conditions of employment (Article 7), the right to
join and form trade unions (Article 8), the right to social security
(Article 9), the right to protection of the family (Article 10), the
right to an adequate standard of living, including the right to
food, clothing, and housing (Article 11), the right to health
(Article 12), the right to education (Article 13), and the right to
culture (Article 15)(<Craven, 1999, p. 103).
Several international instruments affirm these rights
mentioned in the Covenant. These instruments include the
International Convention on the Rights of the Child (Articles
24-31); the Convention on the Elimination of All Forms of
Discrimination Against Women (Article 1) and certain
instruments of the International Labor Organization (ILO).
Recognition is given
CHAPTER 4
1
9
to economic, social and cultural rights in the African Charter on
Human and People’s Rights and in the European Social Charter
(ESC) (p. 104).
Readings:
JMM Promotions and Management/Inc. v. Court of Appeals,
260 SCRA 319 (1996)
Bernardo v. NLRC, G.R. No. 122917, July 12,1999 Calalang v.
Williams, 70 Phil. 726 (1940)
Phil. Merchant Marine School, Inc. v. Court of Appeals, 244
SCRA 770 (1995)
MMDA v. Concerned Residents of Manila Bay, G.R. Nos.
171947-48, December 18, 2008
Tablarin v. Gutierrez, 154 SCRA 730
Miriam College Foundation v. Court of Appeals, G.R. No.
127930, November 15, 2000
SSS Employees v. Court of Appeals, 175 SCRA 638 (2012)
Rene V. Sarmiento, feSocial Justice: Roots and Wings,” San
Beda Law Journal, Vol. Ill (May 2016)
Chapter 5
SOLIDARITY/COLLECTIVE RIGHTS (THIRD

GENERATION OF RIGHTS)
Peace, Development, Environment

Right to peace belongs to the category of solidarity/collective
rights. It is universally recognized that peoples of the earth have a
sacred right to peace and that the preservation of the right of peoples to
peace and the promotion of its implementation constitute a
fundamental obligation of each State (Declaration on the Right of
Peoples to Peace, 1984).
Conflicts of an international character and non-international
character have resulted in millions of casualties and have caused
untold sufferings to peoples of the world. Although the number of
conflicts of an international character has declined since World War II,
it is estimated that conflicts of a non-intemational character, internal
conflicts and tyrannical regime victimization during the course of the
twentieth century have resulted in more than 170 million deaths
(.Bassiouni, 1996, p. 322).
International instruments related to peace include the UN
Declaration on Principles of International Law Concerning Friendly
Relations and Cooperation Among States, UN General Assembly
Resolution 33/73 Declaration on the Preparation of Societies for Life in
Peace (1978), Declaration on the Right of Peoples to Peace of 1984,
UNGA Resolution 57/216 Promotion of the Right of Peoples to Peace
(2002), UNGA Resolution 45/14 Implementation of the Right of Peoples
to Peace (1990).
Right to development is another example of a solidarity/
collective right. Development is a comprehensive economic, social,
cultural and political process which aims at the constant
improvement of the well-being of the entire population and of all
individuals through their meaningful participation (Declaration on
the Right to Development, 1986). Amartya Sen defines it as a
20
CHAPTER 5 21
SOLID ARITY/COLLECTIVE RIGHTS
(THIRD GENERATION OF RIGHTS)
process of expanding the freedoms that people enjoy and requires the
removal of major sources of unfreedom like poverty, tyranny, poor
economic opportunities, systematic social deprivation, neglect of public
facilities, intolerance or overactivity of repressive states (Barua-Yap,
2003, p. 277). Poverty embraces the spectrum of conditions where
freedoms are diminished and denied (p. 278).
The right to development was proclaimed in the UN Declaration
on the Right to Development (1986). It is also recognized in the African
Charter on Human Rights and People's Rights and the Arab Charter
on Human Rights. It is re-affirmed in instruments like the 1992 Rio
Declaration on Environment and Development, the 1993 Vienna
Declaration and Programme of Action, the Millennium Declaration,
the 2002 Monterey Consensus, the 2005 World Summit Outcome
Document and the 2007 Declaration on the Rights of Indigenous
Peoples (The Right to Development at a glance, http://
www.un.org/en/events[Accessed on October 5, 2013 — Ed.]).
The right to environment is seen today as an important right
because of global warming, climate change, the damaging effects of
environmental pollution on human beings and the degradation of
the world’s environment that includes land, water, and air. But the
global recognition that human rights and environmental protection
are connected and that man has a fundamental right to an
environment that permits a life of dignity and well-being became
explicit only in 1972 at the Stockholm Conference. This conference
is considered an important starting point in developing
environmental law at the global and national levels. Principle 1 of
the Stockholm Declaration linked environmental protection and
human rights by stating that “[M]an has the fundamental right to
freedom, equality and adequate conditions of life, in an environment
of a quality that permits a life of dignity and well-being, and he
bears a solemn responsibility to protect and improve the
environment for present and future generations.” Today, the right
to environment is directly mentioned in the International Covenant
on Economic, Social and Cultural Rights in Article 12(2) which
states that “[T]he steps to be taken by the States Parties to the
present Covenant to achieve the full realization of this right shall
include those necessary for ... (b) The improvement of all aspects of
environmental and industrial hygiene” (The Right to A Healthy
Environment, http://wwwl.umn. edu/humanrts [Accessed on October
4, 2013 — Ed.]).
Some treaties that contain environmental obligations for States include the
1972 World Heritage Convention, the 1985
Vienna Convention, the 1987 Montreal Protocol on Substances

that Deplete the Ozone Layer, the 1989 Basel Convention on the
Control of Transboundary Movements of Hazardous Wastes and
Their Disposal, the 1992 Convention on Biological Diversity
(The Right to A Healthy Environment,
http://wwwl.umn.edu/humanrts/Accmedon October 4, 2013 —
Ed.]).
Women, Children, Persons With Disabilities,
Indigenous Peoples
Women
Women, children, persons with disabilities and
indigenous peoples are among the world’s vulnerable,
disadvantaged and marginalized groups of people or sectors.
They have rights but these are violated.
Women, though they comprise one-half of humanity, face
persistent and widespread denial of their basic rights. This denial
restrict their choices, increase their vulnerability to violence and make
it difficult for them to obtain justice. Examples of this denial include
over half a million women continue to die each year from pregnancy
and childbirth-related causes; rates of HIV infection among women are
rapidly increasing partly because of their economic and social
vulnerability, gender-based violence kills and disables as many women
between the ages 15 and 44 as cancer; women are twice as likely as
men to be illiterate; women still earn less than men, even for similar
kinds of work and many countries that have ratified the Convention on
the Elimination of All Forms of Discrimination Against Women
(CEDAW) still have discriminatory laws governing marriage, land,
property and inheritance (The Human Rights of Women: Advancing
Human Rights: UNFPA,
http://www.unfpa.org/rights/women.htm[Accessed on October 5, 2013
—Ed.]).
The core international human rights instruments that pertain

to women and their rights are The Declaration on the Elimination of
Discrimination Against Women, Convention on the Elimination of All
Forms of Discrimination Against Women, Convention on the Political
Rights of Women and Declaration on the Protection of Women and
Children in Emergency and Armed Conflict.
Children
Although they are the world’s future, children across the globe
are denied their rights. They are exploited, abused, maltreated, de-
CHAPTER 5 23
SOLIDARITY/COLLECTIVE RIGHTS
prived of education, sold, subjected to cruel methods of punishment, and

discriminated against. These children are the streetchildren, child
workers, child brides, child combatants, child abductees, child offenders
living lives without parole, child refugee, and children without
education.
Children as human beings have rights and because of their
vulnerability are in need of special care, attention and protection. The
full range of human rights that children should enjoy is found in the
Convention on the Rights of the Child, the first legally binding
international instrument on children’s rights. This Convention
enumerates three basic rights that children everywhere should have,
namely, the right to survival, the right to develop to the fullest, to
protection from harmful influences, abuse and exploitation, and to
participate fully in family, cultural and social life (UNICEF Convention
on the Rights of the Child, http://www.unicef.org/crc[Accessed on
October 4, 2013 — Ed.]).
To prevent the growing abuse and exploitation of children
worldwide, the UN General Assembly in 2000 adopted two Optional
Protocols to the Convention. The first is the Optional Protocol on the
involvement of children in armed recruitment and requires States to
do everything they can to prevent children under the age of 18 from
taking direct part in hostilities. The second is the Optional Protocol on
the sale of children, child prostitution, and child pornography that
draws special attention to the criminalization of serious violations of
human rights and emphasizes the need for public awareness and
international cooperation to combat them (Ibid.).
Persons With Disabilities (PWDs)

Article 1 of the UN Convention on the Rights of Persons With
Disabilities (2008) defines persons with disabilities as those “who
have long-term physical, mental, intellectual or sensory impairments,
which in interaction with various barriers may hinder them full and
effective participation in society on an equal basis with others.”
Republic Act No. 7277 (Magna Carta for Disabled Persons), 1992,
defines them as “those suffering from restriction or different abilities,
as a result of a mental, physical or sensory impairment, to perform an
activity in the manner or within the range considered normal for a
human being.”
The United Nations estimates that there are 50 million PWDs in
the world today. Due to war and destruction, unhealthy living
£4 HUMAN RIGHTS HAW, HUMAN 11IQHTS CULTURE
conditions, or the absence of knowledge about disability, its causes,

prevention and treatment, the numbor increases every year (Persons
with Disabilities, http://www.hrea.org/index.php[Accessed on October
4% 2018 — EdJ), The World Health Organization (WHO) estimates
that 15% of the world's population has a disability and the prevalence
is higher in post-conflict countries.
PWDs suffer from discrimination and often do not enjoy the same
opportunities like other people because of lack of access to essential
services. These vulnerable groups that face discrimination include
women, children, elders, victims of torture, refugees, displaced persons
and immigrant workers (Persons with Disabilities,
http://www.hrea.org/index.php/"Accessedon October 4,2013—Ed.]).
The international instruments and documents that pertain to
PWDs are Declaration on the Rights of Mentally Retarded Persons
(1971), Declaration on the Rights of Disabled Persons (1975),
Declaration on the Rights of Deaf-Blind Persons (1979), Convention
No. (59) concerning Vocational Rehabilitation and Employment
(Disabled Persons, 1983), Principles for the Protection of Persons with
Mental Illnesses and the Improvement of Health Care (1991),
Standard Rule on the Equalization of Opportunities for Persons with
Disabilities (1993), Beijing Declaration on the Rights of People with
Disabilities (2000) and Convention on the Rights of Persons with
Disabilities (2007).
Indigenous Peoples
Indigenous peoples are those that have historically belonged to a
particular region or country before its colonization or transformation
into a nation, state and may have different — often unique -- cultural,
linguistic, traditional, and other characteristics to those of the
dominant culture of that region or state (United Nations Permanent
Forum on Indigenous Issues, http://www.globalissues. org/article
[Accessed on October 4,2013 — EdJ), In 2010, there were
approximately 370 million indigenous people spanning 70 countries
worldwide.
In the Philippines, indigenous peoples are estimated to comprise
10% of the population of about 100 million. They generally live in
geographically isolated areas with poor access to basic social services
and limited opportunities for mainstream economic activities. They
lack education and have inadequate political representation. But
minerals, forests and rivers can be found where they are and make
CHAPTER 5 26
S0LIDARITY7C0LLECT1VE RIGHTS
them vulnerable to development aggression (Guia-Padilla, 2011, p.

262).
The UN Declaration on the Rights of Indigenous Peoples (2007)
recognizes that indigenous peoples have suffered from historical
injustices as a result of, among others, their colonization and
dispossession of their lands, territories, and resources, preventing
them from exercising their right to development based on their needs
and interests. It also acknowledges the urgent need to respect and
promote the inherent rights of indigenous peoples which are derived
from their political, economic, and social structures, from their
cultures, spiritual traditions, histories, and philosophies.
The UN Declaration on the Rights of Indigenous Peoples is the
most comprehensive instrument detailing the rights of indigenous
peoples in international law and policy, containing minimum
standards for the recognition, protection and promotion of these
rights. These rights include the right to self-determination, right to
lands, territories and resources, right to health, education,
employment, housing, sanitation, social security, and an adequate
standard of living, right not to be subjected to assimilation or
destruction of their culture, the right to practice and revitalize their
cultural traditions and customs, etc.
Readings:
Declaration on the Right of Peoples to Peace (1984) Declaration
on the Right to Development (1986)
Convention on Biological Diversity (1992)
| Convention on the Elimination of All Forms of Discrimination
Against Women (1979)
Magna Carta of Women (2009)
Convention on the Rights of the Child (1990)
; Convention on the Rights of Persons with Disabilities (2008)
Declaration on the Rights of Indigenous Peoples (2007)
| Villegas v. Subido, 109 SCRA 1 (1981)
People v. Leachon, G.R. No. 108725, September 25,1998 ?
PT& T v. NLRC, G.R. No. 118978, May 23,1997
| Philippine Association of Service Exporters, Inc. v. Drilon, 163
SCRA 386
HUMAN RIGHTS RAW, HUMAN
Villavicencio v. Lukban, 39 Phil, 778

Pope Francis’ Encyclical Letter "Laudato *
Paris Agreement on Climate Change, April 2016
The Power of Parks, National Geographic We Need the Wild),
January 2016
Colombia Final Peace Agreement (2016) on “Comprehewke
Rural Reform”
Michael L. Tan: “ Who are the Lumads?” Philippine Dmfy
Inquirer, October 28, 2015
Chapter 6
REMEDIES AND PROCEDURES FOR
RESPONDING TO HUMAN RIGHTS
VIOLATIONS AND HUMAN RIGHTS ABUSES
Human Rights Violations

These are acts committed by or at the instigation of or with the
consent of a public official or other person acting in an official capacity
contrary to human rights law, causing bodily or mental pain or suffering or
death. They occur when State actors abuse or deny basic human rights.
Republic Act No. 10368 (The Human Rights Reparation and
Recognition 'Act of 2013) defines human rights violation as any act or
omission committed during the period from September 21, 1972 to February
25, 1986 by persons acting in an official capacity and/or agents of the State
and includes any illegal search, arrest and/or detention, any affliction of
physical injury, any enforced or involuntary disappearance, force or
intimidation causing the involuntary exile of a person from the Philippines,
any act or force, intimidation or deceit causing unjust or illegal takeover of a
business, etc.
Traditionally, when non-State actors (rebels, insurgents, non-
governmental entities) commit these transgressions or violations of human
rights, their actions are called crimes. Today, they are also considered
human rights violations. In the Comprehensive Agreement on Respect for
Human Rights and Respect for International Humanitarian Law, signed by
the Government Peace Panel and the CPP/NPA/NDF Peace Panel on March
16, 1998 violations committed by rebels are called human rights abuses.
Remedies
Rights and remedies are inseparable. For rights to be fully enjoyed
and for rights to be amply protected from harm, injury, and
27
iiM HUMAN HIUH'IV, I AW, HUMAN HlOffW CUIJfVHM
assaul, originating from State and non-State actors, remedies must

be in pluce and readily available anytime and anywhere.
Good there are domestic remedies and non-domestic or international
remedies that are found in Constitutions, statutes and international
instruments. AS violations occur and become intense, remedies are
invented to cope up with the indignities and abases.
Domestic Remedies
Domestic remedies may take the form of civil remedies, criminal
remedies and administrative remedies,
A human rights victim can file a civil action for damages in the
appropriate trial courts under Article 32 of the Civil Code, This may be
proved only by a preponderance of evidence. Moral damages, exemplary
damages, costs of suit and attorney's fees maybe awarded by the court as
indemnity.
The civil liability under Article 32 of the Civil Code is separate and
independent from the civil liability that springs from criminal liability
under Article 100 of the Revised Penal Code.
Civil sanctions as an offshoot of a civil remedy availed of by a
human rights victim is acknowledged and affirmed by Section 12f4),
Article III (Bill of Rights) of The 1987 Constitution, by Section 21 of the
Supreme Court’s A.M. No. 07-9-12-SC (The Rule on the Writ ofAmparo),
Section 20 of the Supreme Court’s AM. No. 08-1-16-SC (The Rule on the
Writ of Habeas Data) and Section 1, Rule 10 of Supreme Court’s A.M. No.
09-6-8-SC (The Rules of Procedure for Environmental Cases).
Like civil sanctions, penal sanctions are acknowledged and affirmed
by Section 12(4), Article III (Bill of Rights) of The 1987 Constitution, by
Section 21 of the Supreme Court’s AM. No. 07-9- 12-SC (The Rule on the
Writ ofAmparo), Section 20 of the Supreme Court’s A.M. No. 08-1-16-SC
(The Rule on the Writ of Habeas Data) and Sections 1-3, Rule 9 of the
Supreme Court’s AM. No. 09-6-8-SC (The Rule of Procedure for
Environmental Cases).
The human rights victim may opt to file a complaint with the
Commission on Human Rights whose task is solely fact-finding
investigation. After investigation, prosecution will be handled by the
Department of Justice until case is resolved by the court. The complaint
can be filed for specific crimes relating to categories of human rights
violations like crimes violating the right of the people
CHAPTER 6 29
REMEDIES AND PROCEDURES FOR RESPONDING TO HUMAN RIGHTS
to be secure in their persons, houses, papers, and effects against

unreasonable searches and seizures (e.g., crimes under the Revised Penal
Code like Article 124 [crime of arbitrary detention], Article 269 [unlawful
arrest], Article 125 [delay in the delivery of detained persons], Article 128
[violation of domicile], Article 129 [act of maliciously obtaining search
warrants and abuse in the service of warrants], Article 130 [searching a
domicile without witnesses]); crimes violating the right to freedom of
assembly (e.g., Article 131 [prohibition, interruption and dissolution of
peaceful meetings], Article 153 [tumults and other disturbances of public
order]); crimes violating the right to freedom of religion (e.g., Article 132
[interruption of religious worship], Article 133 [offending the religious
feelings]); crimes violating the right to freedom from involuntary
servitude (e.g., Article 272 [slavery], Article 273 [retaining a minor in his
service against the former’s will], Article 274 [compelling another to work
for him against his will as a household servant or farm laborer]; crimes
violating the right to life (e.g., Article 246 [parricide], Article 249
[homicide], Article 255 [infanticide], Article 256 [intentional abortion],
Article 257 [unintentional abortion], Article 262 [mutilation], Article 263
[serious physical injuries], Article 265 [less serious physical injuries],
etc.); crimes violating the prohibition on torture (e.g., Article 235
[maltreatment of prisoners], Articles 262-266 [offender is not vested with
custody of the prisoner but commits only physical injuries]) and crimes
violating the rights to liberty of abode (e.g., Article 127 [expulsion], Article
268 [grave coercion]) (Muyot, 1999, pp. 389-395).
Since human rights violations are crimes under the Revised Penal Code, a
human rights victim can file a criminal complaint direct to the Office of
the Prosecutor (City or Provincial Prosecutor).
Administrative Remedies
Administrative remedies for human rights violations are
acknowledged and affirmed in Section 12(4), Article III, Bill of Rights,
The 1987 Constitution, The Revised Administrative Code of 1987,
Section 21 of the Supreme Court’s A.M. No. 07-9-12-SC (The Rule on
the Writ ofAmparo) and Section 20 of Supreme Court’s A.M. No.
08-1-16-SC (The Rule on the Writ of Habeas Data).
Under the Revised Administrative Code of 1987, the heads of the
bureaus or office has the authority to discipline his employees in line
with Sections 30 and 36 of Chapter 6, Book IV, Revised Administrative
Code of 1987.
UNIVERSITY OF THE CORDILLERAS

LIBRARIES
SO HUMAN RIGHTO LAW, HUMAN WUWfWp\H1^mij»
International Remedies
The international remedies (hr human right a viola! i human
rights abuses are based on treaties and mm4ruttiu ^ dures. ■ PHJBI
Based on treaties, the mechanisms for the enthrreinet t human
rights are the reporting requirement to ensure Stale on * \\ ance with
treaty obligations, the investigation of Onmimiidoun to determine
breaches of treaty obligat ions and t he inveel itfalP ** prosecution,
and trial of human rights violators under t he Rm ' Statute of the
International Criminal Court.,
Based on non-treaty procedures are the Public 1 33fi Procedure the
1503 Procedure established by Resolution 133ft and Resolution 1503 of
the Economic and Social Council (RGOHOC) In IPfiy and 1970,
respectively.
The Reporting Requirement

State Parties are generally required by the (treaties to periodically
submit reports to the Secretary-General of the United Nations or to the
monitoring body created by the treaty, These reports give a
comprehensive account of the measures adopted by the State Parties to
apply the provisions of the UN Conventions They also contain an
elaboration on the progress that the HI ate Parties have achieved to fulfill
their obligations under the Covenant concerned as well as the factors and
difficulties that may retard their progress (Muyot, 1999, p. 376),
This reporting requirement is found in treaties like the Inter*
national Covenant on Economic, Social and Cultural Rights, Ml®
International Covenant on Civil and Political Rights, the Con vein tion on
the Elimination of All Forms of Racial Discrimination! the Convention
Against Torture, Convention on the Eliminat ion of All Forms of
Discrimination Against Women, the Convention Oil the Rights of a
Child, etc, (p. 376).
Investigation of Communications/Complalnts
This procedure under the quasi-judicial practice of the Hum®"
Rights Committee is the most effective human rights complain^* systems
at the universal level, As of January 1000, Oft of Ilia ' State Parties to the
International Covenant on Civil and Politic® Rights, including most of
the former Communist States of Europe ®
CHAPTER 6 31
well as an increasing member of Latin American and African States
were parties to the First Optional Protocol and submit themselves to
the jurisdiction of the Human Rights Committee in cases of alleged
individual human rights violations. A total of 844 individual
communications/complaints relating to 59 States have so far been dealt
with by the Committee. Communications numbering 248 were
declared inadmissible and 308 were decided on their merits. In 236
cases, a violation of one or more Covenant rights by the States Parties
concerned, above all by Uruguay and Jamaica, has been established
(Nowak, 1997, p. 95).
Under this procedure, only individuals and not groups, NGOs or
other legal entities, may submit a communication to the Committee
under Articles 1 and 2 of the Optional Protocol. The Committee’s
decisions on the merits of the case are structured like court judgments.
Individual members may add their dissenting or concurring opinions to
the decisions. The lack of legally binding effects and of any sanctions
against non-cooperative governments remain the most serious
shortcoming of this procedure (pp. 96-97).
The International Criminal Court

The Rome Statute establishing the International Criminal
Court (ICC) is considered one of the most ambitious international legal
initiatives in the history of modern law and the ICC as the important
new institution for human rights in the new century. Unlike the
International Court of Justice which deals with States, the ICC deals
with and has the power to investigate, prosecute, and convict
individuals.
The Rome Statute was adopted on July 17, 1998, after a five-
week plenipotentiary conference in Rome. On April 11, 2002, a special
treaty event was organized at the United Nations at which 10 states
deposited their instruments of ratification triggering the entry of force
of the Rome Statute on July 1, 2002. As of 2003, 92 nations have
ratified the Rome Statute of the ICC and 139 States have signed the
treaty (The NGO Coalition for the International Criminal Court, 2003,
iii).
Unlike domestic or national courts, the ICC exercises inter-
national jurisdiction over criminals. This addresses the problem of
preventing human rights violators and criminals who may have
escaped from the national jurisdiction where they committed serious
crimes, namely, genocide, crimes against humanity, war crimes
'—... ...... 1
and aggression (Colmenares, Primer on the International Criminal Court,

pp. 3-4).
There are three ways by which an investigation by the ICC may be
initiated. These are: (1) a State Party may refer as “situation* to the
Prosecutor, where it appears that one or more crimes within the
jurisdiction of the Court was committed; (2) the Security Council may
refer a “situation” to the Prosecutor; and (3) the Prosecutor may initiate
investigation motu proprio or on her own, on the basis of information
received from any reliable source as to the commission of crimes.
Prosecutor then applies for a warrant of arrest with the Court’s Pre-Trial
Chamber for the arrest and surrender of the suspect. If approved, a
warrant of arrest shall issue (pp. 16-17).
The Public 1235 Procedure

Economic and Social Council (ECOSOC) Resolution 1235
authorizes the Commission on Human Rights [consists of 53 members
who are elected by the Economic and Social Council (ECOSOC)] and
the Sub-Commission on Prevention of Discrimination and Protection of
Minorities (composed of 26 human rights experts nominated by their
governments and elected by the Commission on Human Rights) to
debate, during their annual sessions, the question of the violation of
human rights and fundamental freedoms. The Commission and
Sub-Commission may examine information relevant to gross violations
of human rights in their public sessions (Flinterman, 1997, pp.
144,147).
Information on human rights violations may be furnished by
States (both members and non-members of the Commission), by
members of the Sub-Commission and by non-governmental
organizations (NGOs) with consultative status with the United
Nations. NGOs attending the annual sessions of the Commission
and Sub-Commission actively participate in the debates of these
organs. The Sub-Commission is authorized to adopt resolutions on
the situation of human rights violations in specific countries but may
not take further action. It is only the Commission that is mandated
to take action it deems necessary with regard to human rights
violations in any part of the world.
The Confidential 1503 Procedure
Resolution 1503 adopted by the ECOSOC provides for a confidential
complaints procedure in order to deal with communica-
CHAPTER 6 33
tions indicating a consistent pattern of gross and reliably attested
violations of human rights and fundamental freedoms. Individuals,
groups and organizations may submit complaints to the Secretary-
General for confidential examination by the Commission and Sub-
Commission. The admissibility criteria specify, among them, that a
complaint may not be anonymous and may not contain insulting or
abusive language.
The Commission decides by a simple majority on the issues
before it. It may decide to keep the matter under review, to undertake
further study, to appoint a special rapporteur with a mandate to submit
a confidential report to the Commission or to transfer the situation from
the confidential 1503 procedure to the Public 1235 Procedure. It may
also make recommendations to ECOSOC which deals with such
recommendations in its public meetings. Although ECOSOC cannot
take any binding decisions, a public condemnation by ECOSOC of the
human rights violation in a specific country puts pressure on the
government concerned to take its human rights obligations under the
UN Charter seriously (pp. 148-149).
Special Country Rapporteurs and Thematic Rapporteurs

The Commission on Human Rights has, over the years, deve-
loped two types of instruments to supervise implementation of human
rights around the world pursuant to ECOSOC Resolution 1235. First, it
has appointed specific country rapporteurs and working groups
mandated to report annually to the Commission on the development of
human rights situation in the country for which they have been
appointed. Such supervision by the international community over the
human rights situation in a specific country puts pressure on the
government of the State concerned to improve its human rights record.
The other instrument developed in the early 1980s is the
thematic rapporteurs or working groups. The thematic rapporteurs or
working groups already formed were on the issues of involuntary
disappearances, torture, extra-judicial executions, arbitrary detention,
freedom of expression, xenophobia and racism, and violence against
women. These thematic rapporteurs or working groups may examine
relevant information from all reliable sources about violations of human
rights wherever they occur in the world. They may also visit specific
countries, with the consent of the government concerned. They submit
their annual reports to the Commission and
these annual reports survey the information received by the special

thematic rapporteurs, the replies by governments and their lack, the
actions taken by the special rapporteur and any general comments or
recommendations the special rapporteur may wish to submit (pp.
147-148).
Readings:
R.A. No. 10368 (The Human Rights Reparation and Recognition
Act of 2013)
R.A. No. 9851 (An Act on Crimes Against International
Humanitarian Law)
Republic v. Sandoval, 220 SCRA 124 (1993)
Aberca v. Ver, 160 SCRA 590 (1988)
Secretary of National Defense v. Manalo, G.R. No. 180906,
October 7, 2008
Chitat Ng v. Canada, Communication No. 469/1991, Human
Rights Committee; Views of Committee, November 5,
1993, UN Doc. A/49/40 (1844), Vol. II, at 189
Villar v. All Tech Contractors, Inc., et al. (April 2012)
Concerned Citizens of Obando v. Ecoshield Development Corp., et
al. (October 2011)
ICC decision on Thomas Lubanga Dyilo of Democratic Republic of
the Congo, July 10, 2012
Aung San Suu Kyi’s “Freedom from Fear”
I
Chapter 7
PREVENTIVE MECHANISMS IN THE FIELD
OF HUMAN RIGHTS
The promotion and protection of human rights cannot be entirely

reactive. Monitoring, investigative, administrative and judicial
mechanisms to combat human rights violations and to put to an end the
practice of impunity must be coupled with and supported by proactive
and preventive arrangements and processes designed to develop a
healthy awareness of and respect for the indivisibility and
interdependence of human rights.
In the United Nations today, the Office of the UN High Com-
missioner for Human Rights plays this role of providing proactive and
preventive response to human rights violations. In various parts of the
globe, this role is performed by national human rights institutions or
commissions and by non-governmental and private sector actors.
The Office of the UN High Commissioner for Human Rights

The Office of the UN High Commissioner for Human Rights is a
United Nations agency that works to promote and prevent the human
rights that are guaranteed under international law and stipulated in
the Universal Declaration of Human Rights. This office was established
by the UN General Assembly on December 20,1993 after the 1993
World Conference on Human Rights.
Under General Assembly Resolution 48/141, which established
the mandate of the Office of the UN High Commissioner for Human
Rights, the High Commissioner has the following proactive and
preventive responsibilities for:
(a) Promoting and protecting the effective enjoyment by all of
all civil, cultural, economic, political and social rights;
(b) Carrying out the tasks assigned to him/her by the competent
bodies of the UN system in the field of human
HUMAN RIGHTS LAW, HUMAN RIGHTS CULTURE
lights and submitting recommendations to them, with a view

to improving the promotion and protection of all
(c) Promoting and protecting the realization of the right to

development;
(d) Providing, through the appropriate mechanisms and
institutions, advisory services and technical and financial
assistance, at the request of the State concerned;
(e) Coordinating relevant UN education and public
information programmes in the field of human rights;
(f) Playing an active role in removing current obstacles and in
meeting the challenges to the full realization of all
humanrights and in preventing the continuation of human
rights violations throughout the world;
(g) Engaging in a dialogue with governments in the imple-
mentation of his/her mandate, with a view to securing
respect for all human rights;
(h) Enhancing international cooperation for the promotion
and protection of human rights;
(i) Coordination of the human rights promotion and protec-
tion activities throughout the United Nations system;
(j) Naturalization, adaptation, strengthening and streamlin-
ing of the UN machinery in the field of human rights to
improve its efficiency and effectiveness;
(k) Overall supervision of the Office of the High Commissioner.
National Human Rights Institutions

A national human rights institution is an organization that has
been established by national governments with the specific role of
protecting and promoting human rights (.Pegram, 2013).
The Principles relating to the status and functioning of national
institutions, known as the “Paris Principleswere adopted by the
United Nations General Assembly in 1993 and provide international
minimum standards for an effective national human rights
institution. These standards are: (a) independence; (b) broad human
rights mandate; (c) adequate funding; (d) an inclusive and
transparent selection and appointment process
CHAPTER 7 37
PREVENTIVE MECHANISMS IN THE FIELD OF HUMAN
RIGHTS
(Paris Principles: 20 years, guiding the work of National Human

Rights Institutions, http://www.ohchr.org/EN/newsevents/Pages/
ParisPrinciples20years [Accessed on October 17, 2013 — Ed J).
In terms of activities, the Principles call for national, institu-
tions to promote and ensure the harmonization of national legis-
lation, regulation, and practices with international human rights
instruments to which a State is a party and their effective imple-
mentation, the ratification of international human rights instru-
ments and the formulation of human rights education programme
and take part in their execution.
It is in the area of human right education that national human
rights institutions like the Commission on Human Rights of the
Philippines, an independent constitutional office under The 1987
Constitution, can play its proactive and preventive role in promoting
respect for human rights. Under The Protection of Human Rights Act
1993, the National Human Rights Commission of India is tasked,
among others, to conduct research and to promote awareness and
education and to encourage the involvement of non-governmental
organizations and other institutions. Not different is the Uganda
Human Rights Commission Act 4 of 1997. It empowers the Uganda
Human Rights Commission to establish a continuing programme of
research, education, and information to enhance report for human
rights and to formulate, implement, and oversee programs intended
to inculcate in the citizens an awareness of their civic responsibilities
and an appreciation of their rights and obligations as free people
(National Human Rights Commission of India, http://
www.en.wikipedia.org/wiki/National_Human_Rights_Commission_
of_India [Accessed on October 4, 2013 — EdJ\ Uganda, http://www.
nhri.net/ni/files).
Non-Governmental Organizations (NGOs)

Non-governmental organizations (NGOs), especially human
rights organizations, have a long and glorious history of upholding
human rights all over the world. Chief Justice Artemio V.
Panganiban (ret.) classifies NGOs as belonging to civil society that
has been in the forefront of the fight for liberty and considered a
pillar of democracy, the conscience of government and the overseer of
governmental actions (Panganiban, 2011, p. 136). In The 1987
Constitution, NGOs are people’s organizations which are bona fide
associations of citizens with demonstrated capacity to promote the
as HUMAN RIGHTS LAW, HUMAN RIGHTS CULTURE
public interest and with identifiable leadership, membership, and

structure.
In their book “International Human Rights In Contoxt (Law,
Politics, Morale),” Henry Steiner and Philip Alston ncknowlodgo
that NGOs pervade and are a vital part of the human rights
rogJmo. They bring out the facts, contribute to standard-setting
as well as to the promotion, implementation, and enforcement of
human rights norms, spread the message of human rights and
mobilize people to realize that message and proceed with a speed,
decisiveness, and range of concerns impossible to imagine in
relation to most of the work of bureaucratic and politically
constrained intergovernmental organizations (Steiner and Alston,
2000, p. 938).
NGOs important proactive and preventive role in promoting
healthy respect for human rights is in the field of human rights
education. This human rights education, writes Rachel Brett, is
“developing a human rights culture by making people aware of
their rights, of their responsibility not to violate the rights of
others, and of the possibilities of redress including supporting
individuals in bringing cases, whether with the national system,
or under regional or international procedures” (Brett, 1997, p.
399).
Readings:
Carino v. CHR, 204 SCRA 483 (1991)
EPZA v. CHR, 208 SCRA 125 (1992)
Civil Liberties Union of the Philippines v. Executive
Secretary, 194 SCRA 317 (1991)
National Association for the Advancement of Colored People
(NAACP) v. Alabama, 357 U.S. 449
Kilosbayan Foundation and Bantay Katarungan Foundation
v. Janolo, et al., G.R. No. 180543, August 18, 2010
Social Justice Society v. Drilon, et al., G.R. No. 208493, November
19, 2013
South Africa’s Truth and Reconciliation Commission (1996)
Colombia Final Peace Agreement (2016) on “Comprehensive
System of Truth. Justice, Reparation and
Non-Repetition0
Chapter 8
THE JUDICIARY, THE ACADEME, AND THE
FAMILY ON BUILDING A HUMAN RIGHTS
CULTURE
Human Rights Culture

Human rights culture is a shared communitarian belief in the
inherent dignity and of the equal and inalienable rights of all members
of the human family. It is also a shared consensus that the dignity and
worth of every human person can be upheld and honored if the State
and non-State actors undertake efforts and initiatives to uphold and
honor human rights.
Jose Ayala Lasso, the first United Nations High Commissioner
for Human Rights, expressed a compelling argument for the
development of a human rights culture when he said:
“I am convinced that the development of a culture of human rights

throughout the world is one of the most important
- contributions that can be made to future generations. The
foundation for this culture is enshrined in the principles of
j the Universal Declaration. A culture of human rights would f. result
in a profound change in how individuals, communities,
, states and the international community view relationships in all
matters. Such a culture would make human rights as much a part of
the lives of individuals as are language, customs, the arts, faith and
ties to place. In this culture, human rights would
- not be seen as a job 'of someone else/ but the obligation and duty of
all” (Dignity for All: Building a Culture of Human Rights,
http://www.sgiquarterly.org/feature20080ct-10.html[Accessed on
October 5,2013 — Ed.]).
The Judiciary
The Judiciary in the Philippines is a key player in the deve-
lopment of a human rights culture. Through its duty to settle actual
39
ftWW'WlAWv HUMAN ftiiiHfS CULTURE
VhlU WYtflW HglUs which Ate legally demandable and

>diVi\ HN dmvY-PUPP \\l\PthPV rt gl*UVe abuse of discretion has
been ^WWCPufod Kv mW UhVUvb UV instrumentality of the
Government \h^ff jndhWt |MW>VV'\ U\U>Vudit;iUi V t;aii be a
potent agent to overcome WtydYeVtehUieiit; discrimination and
inequality. viS \h>\VW hi promulgate tules Concerning the
protection and Of )UVU\nU fights* it call eliminate injustice of
various tsVOUmWv political injustice* and social injustice)
*d\shW H\P h0Vi*mUUl a Oil Vertical frontiers of human
rights. I^VOVtgL H* SMVffiohc vU teaching fiiiictioii* it can educate
and the VOOodHO'S of the bat* litigants* the law students and tit*
pWhlw aKwH U\e majesty and efficiency of human rights.
^KVVgWUMji the important foie of the Judiciary in promoting,
s&thgvmedmg OUd advancing human rights* the International
tXwwwtaaLm on duViSiSi in a conference On Development, Human
fttghia and the Hole of Law (1981)* declared that:
*Tha vnk of Law is a dynamic concept for the

expansion and hdnhmOm of which jUfists are
primarily responsible and which should hO employed
not only to safeguard and advance vho en d and
political eights of the individual in a free society, hut
also IO asmhhsh social; economic; educational and
cultural ooodu wns under which tils legitimate
aspiration and dignity may ho vaahred” {SafiukniCi
$dil* p; 90);
In a workshop held at Kenya in 1985* justices judges, lawyers,
Ugal scholars and social scientists discussed the theme “The Role of
iha Judiciary in Pineal Societies*’ and consensually agreed that
judicial activism can he “an important strategy to overcome all
forms of oppression, a^ploitation* impoverishment* unjustifiable in
any modal of social development in Africa and Asia.” The
participants addad Kv proclaiming tliaf id judicial activism,
encouraged by social action litigation* inspired by Constitutional
values* may be regarded as a vital human technology for social
change in impoverished society" ip, OIL
The Supreme Court of the Philippines through its many
trailhiaaing decisions on human rights (e.g., stonehui v. Diokno, ao
SCffiA %m\ Opm U: Ml™ 224 SCRA 792; The Secretary 0/' Notion ill
I): MunalVt G.tt. No.' 180906, October 7, 2008;
MhffitA i), Dot i Willed timdmts0/ Manila Bayi G.R. Nos. 171947-
4$, December fo 800$) and til rough its three rules it promulgated,
namely, AJVI? No* 074M8-0O (The Hale btt the Writ of Amparo),
CHAPTER 8 41
THE JUDICIARY, THE ACADEME, AND THE FAMILY
ON BUILDING A HUMAN RIGHTS CULTURE
A. M. No. 08-1-16-SC (The Rule on the Writ of Habeas Data) and

A. M. No. 09-6-8-SC (The Rules of Procedure for Environmental
Coses) are immensely contributing to the building of the edifice of human
rights culture in the Philippines and in the world.
The valedictory address of Chief Justice Roberto Concepcion,

though done in 1973, speaks volumes about the role of the Judiciary in
building a human rights culture. He said:
“Upon the other hand, the Supreme Court now exercise the
power of administrative supervision over all courts and the personnel
thereof. ... As a consequence, the Supreme Court is now called upon to
blaze new trails, and the Philippine Bench, as well as the Bar and the
people in general, are looking forward to administrative decisions and
precedent setting decisions tending to bolster up the independence of
justice and otherwise foster the people’s faith in our courts of justice as
instrumentalities of their welfare” (Sarmiento, pp. 93-94).
The Academe
The Academe is another key player in the building of a human
rights culture in the Philippines. The 1987 Constitution of the
Philippines recognizes this important role of the Academe when, in its
Article XIV (Education, Science and Technology, Arts, Culture and
Sports), it provides:
“Section 3.
1. All educational institutions shall include the study , of
the Constitution as part of the curricula.
2. They shall inculcate patriotism and nationalism, foster

love of humanity, respect for human rights, appreciation of the role
of national heroes in the historical development of the country,
teach the rights and duties of citizenship, strengthen ethical and
spiritual values, develop moral character and personal discipline....”
Today, the 1987 Constitution, often referred to as human rights

constitution, is taught in colleges and universities. Effective
schoolyear 2013-2014, human rights law will be taught in all law
schools. Bolstering the study of human rights in the schools are the
establishment of centers and institutes of human rights and social
justice and the foundation of student human rights organizations in
many colleges and universities, here and abroad. Some schools
abroad have summer human rights externships programs where law students
are given the opportunity to spend the summer working with human rights
organizations, human rights attorneys or UN bodies. The program provides
invaluable practical human rights | insights and hands-on-training for the
students and assistance to [ host offices and organizations.
Schools, centers, and institutes can be a rich resource of human rights
creativity. They can undertake human rights field trips (visit ' to prisons,
correctional centers, urban poor communities, ethnic villages); human rights
boot camps (visit to museums and pantheons combined with lectures); human
rights exchange programs for students, domestically and internationally;
human rights cultural I shows and art exhibition (showcasing songs and
dances of ethnic B groups, art works of indigenous artists); human rights
dialogue between government, UN officials and students, human rights I
debate/moot court competition, etc.
This upsurge of interest on human rights education, research, and
externships is a healthy sign for the development of a human rights culture
and should be sustained by vigorous support from school administrators,
teachers, students, and governments.
The Family
Last but not the least contributor in the building of a human rights
culture is the family. The 1987 Constitution of the Philippines acknowledges
the importance of the family by the inclusion of Article XV entitled “The
Family.” Section 1 is about the State’s recognition of the Filipino family as the
foundation of the nation. Section 2 is about marriage as an inviolable social
institution and the foundation of the family. Section 3 is about the State’s
obligation to honor and H defend right that pertain to spouses, children,
family or family associations and the elderly.
The aphorism “values are caught not taught” carry a lot of
insight and poses a moral challenge to spouses vis-a-vis their
children. In school, children learn by instruction. At home, they learn
by transmission. Proverbs 22:6 gives this reminder: “Train up a child
in the way he should go and when he is old, he will not depart from
it.”
First and hands-on lessons related to right to education, right
to food, right to culture, right to health and nutrition, right to water,
freedom of expression, equality, due process, justice, right to
CHAPTER 8 43
THE JUDICIARY, THE ACADEME, AND THE FAMILY
ON BUILDING A HUMAN RIGHTS CULTURE
worship, good governance, accountability, integrity and love, can be
caught at home. As parents are, so children will they be.
George Benson teaches: “Great ideas and fine principles do not live
from generation to generation just because they are good, nor because
they have been carefully legislated. Ideals and principles continue from
generation to generation only when they are built into the hearts of
children as they grow up” (Dosick, 1995, p. 191).
Readings:
UN Basic Principles on the Independence of the Judiciary (1985)
UN Secretary-General’s Report on the Role of Law and
Transitional Justice in Conflict and Post-Conflict Societies
(August 23, 2004)
UNESCO’s Declaration and Integrated Framework of Action on
Education for Peace, Human Rights and Democracy (1999)
United Nation’s Declaration on Human Rights Education and
Training (2011)
The Family, Article XV, The 1987 Constitution
Imbong v. Ochoa, G.R. No. 204819, April 8, 2014
Poe-Llamanzares v. COMELEC, G.R. No. 221697 and G.R. Nos.
221698-700, March 28, 2016
Chapter 9
THE ROAD AHEAD
The road ahead for human rights will not be easy. Problems and
difficulties will be there and they can come from sources like abuses of
authoritarian leaders, inequalities of political and economic powers,
practices of multinational corporations and policies of global financial
institutions. These, despite advances in the field of human rights and
the moral power and influence of human rights.
In short, the battle for human rights and for human dignity is not
yet fully won. A big boost to winning the battle for human rights will be
the active promotion of human rights education towards developing a
human rights culture and a human rights way of life. This is in addition
to the giant strides in “standard set ting” (both international and
domestic laws) and “institutional building” (human rights national
commission, mechanism, and International Criminal Court).
Human rights culture and human rights way of life mean a robust
awareness of human rights and human responsibilities and actively
living these rights and responsibilities in everyday life.
More than ever, the integration of the study of human rights law
in law schools of the Philippines is a wise step in the right national and
international direction.
HORNBOOK ON
IN T ER NA T ION A L AN D
P H IL IPP INE H UMA N
R IGH T S LA WS
PEPITA JANE A. PETRALBA
2013 Edition
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UMRfgRSITV OF TOS CORDILLERAS

UBRAMES
TABLE OF CONTENTS
CHAPTER I
INTRODUCTION
A. Rationale ................................................................................. 1
B. Scope as a subject .................................................................... 2
C. Philippine contribution to International Human
Rights Law ........................................................................... 3
Philippine Contribution to UDHR .......................................... 3
Philippine participation on core human rights treaties 3
On women’s rights: “mother” of CEDAW is a
Filipina ................................................................................... 4
Membership to the International Criminal Court ..... 5
D. Human Rights laws of the Philippines .................................... 5
E. Construction of human rights instruments ............................. 9
CHAPTER II
HUMAN RIGHTS, ITS ATTRIBUTES, ORIGIN AND THE
THREE “GENERATIONS”
A. Meaning of Human Rights ......... ....................................... 10

B. Attributes of Human Rights ......... .................................... 11
C. Origin of Human Rights ........ ............ ... ............. ... ........ 11
D. The Three (3) “Generations” of
Human Rights ....... .................. ______________________ 13
CHAPTER III
STATE RESPONSIBILITY
A. Why the State? .................................................................... .. ..... 16
The State as guarantor of human rights ................................ 16
Human Rights and the Rule of Law ....................................... 16
Violations by “State actors9 ..................................................... 17
Violations by private individuals............................................ 18
State liability for human rights violations

committed by unon-State actors" ............................................. 18
B. International State Responsibility ................................................ 18
International State responsibility for
internationally wrongful acts ......................................................... 19
Derivative State responsibility for complicity . ...................... 21
C. Philippine Cases on State Responsibility .................................. 22
Prohibition on unreasonable searches and
seizures is a restraint against the State,
and not against private individuals ....................................... . 22
Justiciability of the solidary right to a healthy environment
23
Writ of Kalikasan ........................................................................... 25
D. Command Responsibility .............................................................. 25
The Yamashita Standard .............................................................. 25
CHAPTER IV
SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW
A. International Agreements ..................................................... 28
B. International Customary Law ................................................... 29
Jus cogens ..................................... .... .............................;...... 30
Obligatio Erga omnes .................................................................. 31
viii
Universal Jurisdiction .................................................................... 32
Actio Popularis ............................................................................... 33
c. General Principles of Law1 ............................................................. 33

The Incorporation Clause ............................................................... 34
D. Judicial Decisions and Teachings ................................................. 34
Teachings of jurists and publicists ................................................ 38

The International Criminal Tribunal
of Afghanistan .............................................................................. 39
The Kuala Lumpur War Crimes Commission ................ .... . 39
CHAPTER V
THE INTERNATIONAL BILL OF RIGHTS
A. The Universal Declaration

of Human Rights (UDHR) .......... . ........................... 40
B.
International Convention on Civil and
Political Rights (ICCPR) ............................................... 41
International Convention on Economic, Social
and Cultural Rights (ICESCR) ...................................... 42
Rights and Freedoms under the
International Bill of Rights ............................................ 43
a) Equality in dignity and rights ................ .. .... 43
b) Right to life, liberty and security ........................... 43
c) Right against slavery ......... i................................. 46
Trafficking in persons ..........w. ............................ 47
d) Right against torture ........................................... 50
e) Right to equal protection .... ...... ......................... 51
f) Right to effective judicial remedy .......................... 52
Access to justice ...................................................... 53
Judicial writs .......... ... ......................................... 54
g> Right to be presumed innocent umu,uu„uuiuuju gg
>0 Right agUXWSt «W /**$# /itofo low and
hill \>f attoindor 59
|> Right to privncy 60
ij> Freedom of movement 61
k> Right to j^vk asylum 62
l> Right to a nationality 63
SoftdA) Malaysia »»»*%«**»«*, 64
HO Right to marry and found a femily 64
xO Right to property ..... 66
cO Freedom of thought, conscience and religion .... 66
p) Freedom to practice or manifest religious
beliefe 67
Sofcin nersws Titrkoy
,„„„%%*„%%»»%*%%%%»%%»%%•**»*»•**•*»*** 67
q) Freedom of expression 70
r) Freedom of assembly and association 72
s) Right to take part in government ............... ... .............. 72
t) Right to social security 74
ul Right to work 75
v) Right to rest and leisure 75
w) Right to adequate standard of living ................................... 75
x) Right, to education ......... ..................................................... 76
y) Right, to epjoy economic, social and
cultural life 77
z) Right of self-determination 77
aa) Right to health 79
> \*, > * *
CHAPTER VI
80
APPLICATION, ENFORCEMENT AND LIMITATIONS
A. 1. Domestic Application of IHRL
I j Whilin'.
A. 2. International Application oflHRL .......................

Signature ................................................................. gi
Exchange of letters or notes ...... .................... „„ g2
Act of formal confirmation ....... .. .. ..... ......... g2
Reservation ............................................................. g2
Interpretative declaration ............................................. 83
Modification ........................................................... 83
Denunciation ........ ......................................................... 83
B. Enforcement Mechanisms ....... ............. .. ... .. .................... 83
B.l. Against Individuals ...... ............................................. 84
Domestic Enforcement ............................................. 84
International Enforcement .................................... 84
B.2. Against States ................................................................ 85
1. Court Action .... ....................................................... 85
2. Diplomatic Means ................................................ 85
3. Retorsion ... ............................................................ 85
4. Countermeasures .... ............................................ 85
5. Military Intervention .... ..................................... 86
C. Restrictions and Limitations .......................................... 86
Derogation....... .. ................ ..... .... ........ .... ........
CHAPTER VII
MONITORING SYSTEMS
A. Charter-based Mechanisms .................... ... ..... >.... ..................... 88
1. Complaints Procedure: The 1503 Procedure ... 88
2. State Reports ........... ............................................................ 89
I 3. Special Procedures ........................................................... 89
oq
Special Rapporteurs .............................................. 0:7 4
4. NGOs and NHRIs .................................................................... 90
xi
5. Universal Periodic Review .......................... 90
B. Treaty-based Mechanisms ................................................ 9X
Human Rights Committee ............................................... * 93
CHAPTER Vin
THE UNITED NATIONS
A- Purposes of the UN ............................................................. 95

B. ............................................................................................... Principal
Organs of the UN ..................................................................... 95
C. Offices, Agencies, Programmes and
Subsidiary Bodies in the UN .......................... . .............. 96
Human Rights Council ....................................................... 97
Specialized programmes and funds ...................................... 97
Specialized agencies, commissions and bodies ............... 97
Offices under the Secretariat .......................................... 98
/
CHAPTER IX
MILLENNIUM DEVELOPMENT GOALS ............................... 99
CHAPTER X
PHILIPPINE LAWS PROMOTING THE RIGHTS
OF THE CHILD
A, Rights of the child .. ....................... ..... ... ... .................... J 103
Philippine laws and regulations
concerning children....................................................... 105
A. 1. RA 9344 - The Juvenile Justice and Welfare Act 105
Minors exempt from criminal j|j
liability ............................. .................. . .............. 105
The age of conditional criminal
liability ........................................................................ 106
Restorative justice........................................................ 106
Challenges in the implementation
ofRA 9344 .................................................................... 107
A. 2. RA 7610 - The Anti-Child Abuse Law ......................... 108
A. 3. RA 9321 — Elimination of the Worst Forms
of Child Labor.............................................................. 109
A. 4. RA 9975 - Anti-Child Pornography......................... Ill
A. 5. RA 1064 - Expanded Anti-Trafficking in Persons,
Especially Women and Children ............................... 112
CHAPTER XI
THE PROTECTION OF THE RIGHTS OF WOMEN
A. The Rights of Women .................................................. 114
Convention on the Elimination of Discrimination Against
Women (CEDAW)...................................................... 114
A. 1. RA 9262 - Anti-Violence Against Women and
Their Children Act of 2004.......................................... 115
The Magna Carta of Women ....................................... 116
A. 2. RA 8972 - The “Solo Parents
Welfare Act of 2000” ....... ....... ... 117
LGBT (Lesbian, Gay, Bisexual and Transgender) Rights .
.................... .. 119
CHAPTER XII
THE RIGHTS OF MIGRANT WORKERS
A. International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families ..........
120
CHAPTER XIII
THE RIGHTS OF DISABLED PERSONS

A. Convention on the Rights of Persons
With Disabilities ............................................ .... ........ 124
CHAPTER XIV
THE RIGHT AGAINST TORTURE
A. Convention Against Torture and Other
Cruel, Inhuman and Degrading Treatment £
and Punishment (CAT) .. ................................................... 129

B. RA 9745 - The Anti-Torture Act of2009 ....... .....................
CHAPTER XV
THE RIGHT AGAINST ENFORCED DISAPPEARANCES
A. International Convention for the Protection of /
All Persons from Enforced Disappearance ................... 181
CHAPTER XVI
THE INTERNATIONAL CRIMINAL COURT
A. The International Criminal Court (ICC) ........... 1..:. ....... 135
Organs of the ICC ............. ............... ..... .. .... .... .... .................... 136
Responsibility of commanders and other .... 137
Application of the “Command Responsibility”
__<foctrineto civilians .. ............. ........ .. ................................. 138
CHAPTER XVII
INTERNATIONAL HUMANITARIAN LAW (IHL)
A. Definition 139
B. Two (2) components of IHL ................................................... 139
C. Application of IHL .............................................................. 139
D. Origin of IHL .......................................................................... 140
E. ................................................................................... Geneva Conventions
....................................................................................... ... ..... 140
F. The Hague Conventions ........................................................ 141
G. Fundamental Rules of IHL ................................................... 142
H. IHL versus IHRL ................................................................... 142
Ji
Definition of “protected persons39.......................................... 143
I. International Committee of the Red Cross
(ICRC) and the Red Crescent Society ......................... .... A^r
J. Current Issues .................. .... ................... . ................. 145
Environmental degradation and climate change ............... 146
International migration........................................................ 146
Urban Violence ..... .... ..............................1. 146
Emergent and recurrent diseases ......... ............................... 147
International disaster relief and
recovery assistance ...\.;i........................... *........ ... .... .. 147
>
3
7
19
XV
APPENDICES
APPENDIX
A — Universal Declaration
of Human Rights ...........................
APPENDIX
B — International Covenant on
Civil and Political Rights ...............
APPENDIX
C — International Convention on
Economic, Social and Cultural
Rights.............................................
..... 175 ’
APPENDIX
D — Convention on the Elimination of All
Forms of Discrimination Against Women
(CEDAW) .......................................
.... 185
E — Convention on the Rights of the
APPENDIX ... 198
Child (CRC) ........... .............
APPENDIX
F — Convention Against Torture . v and
Other Cruel, Inhuman and
Degrading Treatment ’ or
Punishment (CAT)......;........ ................. 220 j
APPENDIX
G — International Convention on the
Protection of the Rights of All Migrant
Workers and Members ofgfleir Families
................................................ ....
.. 234 j
APPENDIX
H — International Convention for the Protection
of All Persons from Enforced
Disappearance...........
. 272 j
I — Rome Statute of the
APPENDIX International Criminal Court ............. 291
BffiLIOGRAPHY$lKt»3p!S ................................................ 378
XVI
CHAPTER I
INTRODUCTION
I. A. RATIONALE
The United Nations General Assembly (UNGA) proclaimed the
commencement of the World Programme for Human Rights Education
on January 1, 2005, following the UN Decade for Human Rights
Education in 1995-2004.
Pursuant to that, the Commission on Human Rights (CHR) of the
Philippines issued Resolution Nos. A2007-028 and A2007- 029 urging
the Commission on Higher Education and law schools in the Philippines
to offer Human Rights in the Philippine Law curriculum.
Subsequently, on December 19, 2011, the United Nations General
Assembly (UNGA) adopted the United Nations Declaration on
Human Rights Education and Training. Article 3 of the declaration
states that Human Rights education and training “concerns all ages99
and uall levelsn including pre- school, primary, secondary and higher
education.
More than sixty (60) years since the adoption of the Universal
Declaration of Human Rights and the ratification of several human
rights treaties by the Philippines, as well as the consequent enactment
of domestic human rights legislations along the way, the appropriate
and formal education and training on human rights laws in the country
are still slacking. There are still law schools that do not offer Human
Rights Law as a separate subject, and majority of university courses do
not include the subject in their curricula. As a result, we have
professionals who are only semiliterate in human rights. Many do not
have an inkling of what the Universal Declaration of Human Rights is
all about. Millions of Filipinos are not aware of the international human
rights conventions that were ratified by the Philippines by virtue of
which obligations arise. Whenever we get some international attention
for human rights abuses, people tend to think that it is just those “bully
superpowers" interfering in our affairs again. Many people in the
government do not quite comprehend the concept of “State
Responsibility." Whenever these government people are taken to
1
2
INTKKNATIONAh ANU mill 1IMMNW HUMAN ItlUHTH UWfl
task for failure to protect human rights, they tend to think that it’s
just those loudmouthed protesters and "communists" complaining
again. This lack of or insufficient education anti training of human
rights laws has spawned a lot of unnecessary hatred and even
violence in the country* and it is about time that the United Nations
declaration be faithfully heeded,
It is interesting to note* though that the Philippines is usually
among the first countries to ratify important human rights treaties,
and was even one of the members of the first. United Nations
Human Rights Commission responsible in the drailing of the
Universal Declaration of Human Rights, So, while the country's
international participation has always been active, a large part of
the population at home still needs to be educated in order for them to
know, understand and respect, human rights,
Without a doubt, the most effective tool against, human rights
abuse is education: it makes a person less likely to commit human
rights violations, and less likely to become a victim either, As stated
in Article 2 of the UN Declaration on Human Rights Education and
Training, “Human rights education and twining comprises all
educational, training, information, awarenessand learning
activities aimed at promoting universal respect for and observance
of all human rights and fundamental freedoms and thus
contributing to, inter alia, the prevention of human rights violations
and abuses by providing persons with knowledge* skills and
understanding and developing their attitudes and behaviours, to
empower them to contribute to the building and promotion of a
universal culture of human rights *
The aim of this book is to introduce readers to the general
principles of human rights laws, the important human rights
documents, the core human rights treaties, and the strategies and
mechanisms for the protection of human rights, Both international
and Philippine sources of human rights law are treatised in this
book,
I. B. SCOPE AS A SUBJECT
In the Philippine legal education curriculum, International
HumanRights Law is part of Political Law, The Bar Examinations
on Political Law in the recent past asked quite a number of
questions on this particular field of law
CHAPTER I
INTRODUCTION
As an independent subject in law school, it usually covers the

general principles of Human Rights Law, the United Nations System,
the core human rights treaties and their application and monitoring
mechanisms, International Humanitarian Law, and the international
criminal tribunals. In many aspects, the subject intertwines with
Criminal Law, Labor Law, and Tort.
As part of the International Law course, emphasis is given to the
United Nations system and the International Bill of Rights. Other core
human rights treaties are sometimes sidelined in this structure.
The thrust of the United Nations now is to make available at all

levels the proper education and training on human rights law based on
the principles of the Universal Declaration on Human Rights and other
human rights documents. The UN Declaration on Human Rights
Education and Training aims to raise “awareness, understanding and
acceptance of universal human rights standards and principles, as well
as guarantees at the international, regional and national levels for the
protection of human rights and fundamental freedoms”
I. C. PHILIPPINE CONTRIBUTION TO INTERNATIONAL

HUMAN RIGHTS LAW
Philippine contribution to UDHR

The Philippines was a member of the first United Nations
Commission on Human Rights, which was composed of only sixteen (16)
countries. From 1946 to 1948, this Commission was responsible for the
drafting of the Universal Declaration of Human Rights (UDHR), the
first document to embody the aspirations of states for a world
community based on the recognition and respect of human rights. The
Philippines was also one of the original forty-eight (48) countries that
adopted UDHR on December 10, 1948.
Philippine participation on core human rights treaties

Both the International Convention on Economic, Social and
Cultural Rights (ICESCR), and the International Convention on
ANP PPP AWHNto PPM AN UK* UTS LAWS
Civil and Political Rights(ICCPR) were signed by the Philippines on

December 19, 1966, long before they entered into force. However with
the ICESCR was ratified by the Philippines on June 7, 1974, It was not
until October 23, 1986 when the ICCPR was ratified. It must be
remembered that martial Law was in force in the country from 1973 –
1983. It was only in 1986 when President Marcos left thePhilippines,
with President Corazon Aquino taking over the presidency.
The Philippines was also among the first signers of the International
Convention Against Racial Discrimination. To date, the country had
ratified all core human rights treatise, except one, i.e, the International
Convention for the Protection of ALL Persons from Enforce
Disapperance, which entered into force in December 2010. It is
interesting to note that the Philippines usually signs and ratifies
human rights treatise without reservation or comments.
On women’s right: the Mother of CEDAW is a Filipina
One of the core human rights tretisethat could definitely make this
world a better place to live in, and benefit more than half the world’s
population, is the Concention on the Elimination of Discrimination
Against Women (CEDAW). Unknown to many, this is the brainchild of
a Filipina Leticia Ramos Shahani
a former diplomat and senator. She is a genuine trailblazer for

womeas rights and she almost singlehandedly placed the
Philippines in the International map on women rights crusade.
In 1974 she became the chairperson of the UN Commission on the

Status of Women, which organized the First World Conference on
Women In Mexico City.
Shahani is credited for the preparation and submission of the

complete draft of the Convention on the Elimination of
Discrimination Against Women even without the clearance from
the Philippine governments. This author would like to refer to her
as the mother of CEDAW. Another women's rights instrument that
she pushed for was The Forward Looking Strategies for the
Advancement of Women (FLS). As the Secretary-General for the
Nairobi Conforence in 1985, she successfully engineered the
adoption of the FLS despite the initial controversy it generated.
\
CHAPTER I
INTRODUCTION
Membership to the International Criminal Court

Although a latecomer to the International Criminal Court, having
become a member only on November 1,2011, the Philippines lost no
time in actively getting involved in the court’s activities. The following
month, Miriam Defensor-Santiago, a sitting senator, former jurist and
International Law expert, was elected as judge of the court.
I. D. HUMAN RIGHTS LAWS OF THE PHILIPPINES

The Philippines had been conscientious in complying with its
obligations under international treaties in regard to the enactment of
relevant municipal laws designed to ensure domestic compliance. Many
of these domestic laws adopt the language and wording used in the
international conventions, if only to emphasize the country’s
commitment to follow international standards.
The sources of Human Rights jurisprudence in the Philippines are
the Philippine Constitution, legislative enactments, Supreme Court
rules, rulings and orders, and executive issuances. All the three (3)
departments of government are actively involved in the policymaking
aspect of human rights protection. However, the full execution and
widespread implementation of such policies still leave much to be
desired.
Philippine jurisprudence on human rights includes the
following: 1 2
1. The Philippine Constitution — Contains the Bill of Rights;

lays down the bases for all the civil, political, economic,
social and cultural rights of persons.
2. Rights of the child
RA 9344 — Juvenile Justice and Welfare Act of 2006
RA 7610 — Law Against Child Abuse
RA 9231 — Elimination of the Worst Forms of Child
Labor
RA 9775 — Law Against Child Pornography
6
INTERNATIONAL AND PHILIPPINE HUMAN MOUTH MWN
2.5 RA 8044 — Youth in Nation-Building Act

2.6. RA 6972 — Act Establishing Day Caro Center
in Every Barangay
2.7. PD 603 - The Child and Youth
Welfare Code
3. Rights of women
RA 9262 — Anti-Violence Against Women and
Their Children
•3.2. RA 10364 — The Expanded Anti-Trafficking in
Persons Act of 2012
3.3. RA 9710 —* Magna Carta of Women
3.4. RA 7877 — Law Against Sexual Harassment
3.5. Act 4112 — Women Suffrage Act
3.6. PD 633, as amended — Creating the National
Commission on the Role of Filipino Women
3.7. EO 273 — Philippine Plan for
Gender-Responsive Development
3.8. Pres. Proc. 1172 — Campaign to End Violence
Against Women
3.9. RA 6955 — Act Against Mail Order Brides
4. ^Rights of Lesbian, Gay, Bisexual and Transgender
Persons (LGBT)
4.1. Ang Ladlad vs. COMELEC, April 8, 2010
5. Rights of Senior Citizens
5.1. RA 7432 — Senior Citizen’s Act
5.2. RA 7876 — Senior Citizen Center Act
5.3. RA 9994 — Expanded Senior Citizen Act
6. Rights of Disabled Persons
6.1. BP 344 — An Act to Enable The Mobility of
Disabled Persons
6.2. RA 7277 — Magna Carta of Disabled Persons
CHAPTER I 7
INTRODUCTION
6.3. RA 9442 — Law Amending the Magna Carta of

Disabled Persons
6.4. RA 10070 — Act requiring the creation of
Persons with Disability Affairs Office (PDAO) by
local government units
6.5. DILG MC 2009-37 - On issuance of
** identification cards and purchase booklets for PWDs
6.6. DILG MC 2009-29 — On community-based
programs for children with disability
6.7. Adm. No. 35 — Directing departments,
bureaus, agencies and educational institutions to
conduct activities during the annual observance of
the National Disability Prevention and
Rehabilitation Week
7. Rights of Workers and Laborers
7.1. PD 442, as amended — Labor Code of the
Philippines, incorporating the New Labor
Relations Law and the Prohibition on
Discrimination Against Women
7.2. RA 8024 — Migrant Workers Act
7.3. RA 10022 — Law amending the Migrant
Workers Act
7.4. RA 8187 — Paternity Leave Act
8. Right to social security
8.1. RA 8282, amending RA 1161 — The Social
Security Law
8.2. RA 8291 — The Government Service
Insurance System Act
9. Right to Health
9.1. RA 7875 — National Health Insurance Act
9.2. Pres. Proc. 46 — Child and Mother
Immunization Project
8
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
10. Right to a healthy environment

10.1. Oposa vs. Factoran, July 30,1993
11. Right to privacy
11.1. SC A.M. No. 08-1-16-SC - The Rule on
Habeas Data
11.2. RA 9995 — Anti-Photo and Video
Voyeurism Act
11.3. RA 10173 — Data Privacy Act of 2012
12. Right to life, liberty and security
12.1. TheAnti-EnforcedorlnvoluntaryDisappear
ance Act of 2012
12.2. RA 9745 — Anti-Torture Act
12.3. The Rule on the Writ of Arnparo
12.4. Adm. Order 181 — Investigation and
Prosecution of Political and Media Killings
12.5. Adm. Order 197 — Enforced
Disappearances and Killings
13. Remedies of unjustly arrested and/or detained persons
13.1. RA 7309 — Law Creating the Board of
Claims
13.2. Rule 102, Rules of Court — The Rule on
Habeas Corpus
13.3. Rule 9439 — Law Against Hospital
Detention
13.4. RA 10368 — Human Rights Victims
Reparation and Recognition Act of 2013
14. Rights of accused, victims, and witnesses of crimes
14.1. RA 8505 — Rape Victims Assistance Act
14.2. RA 6981 — Witness Protection Act
14.3. RA 9999 — Free Legal Assistance Act
14.4. RA 9346 — Law Abolishing Death Penalty
14.5. Bill of Rights, Philippine Constitution
CHAPTER I \ 9
INTRODUCTION
14.6. Rule 115, Revised Rules of Court

15. Other human rights violations penalized
15.1. Act 3815 — Revised Penal Code of the
Philippines
Human Rights mechanisms
16. 16.1. EO163 — Creating the Commission on Human
Rights
16.2. RA 9201 — National Human Rights
Consciousness Week
16.3. PD 443 — On Delivery of Social Services.
I. E. CONSTRUCTION OF HUMAN RIGHTS INSTRUMENTS

Human Rights law is dynamic, and continues to evolve. The
instruments embodying human rights treaties, laws and principles
are “living* instruments that must be interpreted in the light of
circumstances surrounding and attendant to every case. They
cannot be tied down to obsolete practices and beliefs but have to be
made adaptable to current societal landscapes if they are to have
any relevance at all.
When a human rights law has the effect of modifying another
law without repealing the latter, an attempt at harmonizing
them has to be made. For instance, the law against trafficking in
persons makes clear that trafficked prostitutes are to be considered
victims and are not to be prosecuted. However, the trafficking
law does not operate to repeal Article 202 of the Revised Penal
Code on prostitution absolutely. Thus, this law punishing women
for prostitution still remains, it being one of the few remaining
discriminatory laws against women in this country. Where two (2)
apparently inconsistent laws can stand independently, they have to
be interpreted in favor of the validity of both. Thus, a prostitute who
is not trafficked, or a freelance commercial sex worker, may still be
held liable for prostitution under the Revised Penal Code. (The part
of Article 202 on Vagrancy was finally repealed in April 2012.) ,
CHAPTER II
HUMAN RIGHTS, ITS ATTRIBUTES, ORIGIN AND THE
THREE “GENERATIONS”
II. A. MEANING OF HUMAN RIGHTS

The Preamble of the Universal Declaration of Human Rights (UDHR)
mentions the "inherent dignity and of the equal and inalienable rights of all
members of the human family.” Human rights are not granted by the State, nor
stemmed from citizenship in a country. Human rights are rights which
necessarily spring from being a member of the human species.
Many in the Philippines think that human rights obligations are purely
governmental, or that the scope of the right is limited to political beliefs, or
that human rights pertain to certain economic or social rights of a particular
exclusive group of people. Often, this myopic view gets abused for political
agenda. Thus we see human rights violations committed by state-agents who
are supposed to protect human rights, just as we see violations committed even
by elements calling themselves "human rights advocates.” We see many armed
conflicts fought in the name of freedom and human rights, and yet we see the
innocent and the peace-loving being deprived of their rights and freedoms
because of these so-called “freedom” wars. Without a more open-minded and
comprehensive understanding of human rights, there will always be the
possibility to address one aspect but at the same time violate another.
Human rights law is a broad field, and includes not only the
relationship between men and government, or the civil and political rights of
the people, but extends as well to their economic, social and cultural rights, to
the right to development and a peaceful and clean environment where they
could develop in all facets as human beings. It covers education, employment,
health, family, and marriage, among many others. More importantly, it covers
every individual and does not operate to protect exclusively only a particular
group of people. Both private individuals and public officers have the duty to
respect each other’s rights. i ^
CHAPTER II 11
HUMAN RIGHTS, ITS ATTRIBUTES, ORIGIN AND THE THREE “GENERATIONS”
A. B. ATTRIBUTES OF HUMAN RIGHTS

Human Rights have the following attributes.
1) Universal. — Human rights apply to all humans,
regardless of race, culture, age, sex, or creed.
2) Inherent. — All human beings are born with these
rights; these are not conferred by any authority.
3) Equal. — Every human being has the same set of
rights as any other. Article 1 of the Universal
Declaration of Human Rights states that, “All human
beings are bom free and equal in dignity and rights.
4) Inalienable. — Human rights cannot be taken from
or given away by any human. While its exercise may
be regulated or restricted by law, its substance
cannot be taken away.
H. C. ORIGIN OF HUMAN RIGHTS

“Human Rights” is a relatively modern concept that gained
considerable attention only after World War II. Although the rights of
men are as old as man himself, the concept of human rights and their
protection by the State were unheard of then.
Society needed a government for order and survival. However,
in the past, most government systems were despotic in nature, the
Philippines included. We had the datus and the rajahs before the
Spanish came to colonize us and place the nation under the control of
Spain. Despotic systems had rulers with vast powers, exercising the
roles of lawmaker, judge, landowner, people-owner, high priest, and
in some imperial systems, even the son of God or a supreme deity.
Social order centered on the ruler and the elite, who for some reasons,
tend to develop hubris syndrome. We read of kings who ordered the
killing of subjects without hearing their side, even for the flimsiest
reasons, in very brutal ways, such as burning, mutilation, and feeding
to wild animals. Subjects rendered service without compensation all
their lives for the enrichment of the royalty and nobody cared how
they managed to survive in their daily affairs. The peasantry was not
the only class deprived of their
12 INTERNATIONAL AND PHILIPPINE HUMAN EIGHTS LAWS
human rights. History tells us that members of the royalty also suffered
when they fell from the ruler’s grace.
Although some of the religions started off as refuge from dictatorial
regimes, some of them evolved into dictatorships themselves. When some
religions became very powerful, some of them became selfish, controlling,
manipulative and even brutal. In the medieval period, religion was
sometimes used as an instrument of imperialism, to conquer not only
lands but also the minds of the people into submission. Several bloody
crusades were fought in the name of religion. In Europe and Asia, there
were religious officials who wielded so much power not only in their
church, but also in government and in business.
Back then, the members of the working class were chattels who
were not entitled to anything that their sovereign did not want to give
them. Human Rights protection for the peasantry was unheard of,
freedom of expression was taken as heresy, and the monarchs and
religious leaders were the absolute authority.
In the late 1800’s and the beginning of 1900’s, science and
education empowered more people and made them more critical. The
working class started to assert itself, and the elite began to treat workers
better. The transition was a difficult time for both classes, and a lot of
blood was shed to drive home the point. Consequently, more liberal
rulers emerged, and more democratic governments developed. The
monarchies became more people- oriented, and commoners began
occupying important positions in government. The world started
becoming more liberal in its outlook and respectful of the individual’s
freedom to think and believe. Religions, on the other hand, started
accepting schools of thought which otherwise would have been regarded
as heresy and outrageous. In fact, many religious educational
institutions could be credited for some of the early stages of human
rights education.
As the necessity for trading and mutual assistance among countries
became inevitable, organized governments and economies started
forging diplomatic relations. The League of Nations was born in the
1920’s, and the concepts of sovereignty, independence, and
interdependence were formalized among the members of this
CHAPTER II 13
HUMAN RIGHTS, ITS ATTRIBUTES, ORIGIN AND THE THREE “GENERATIONS”
family of nations. Yet, at that time, human rights principles were not
put in writing, except for the outlawing of slavery and giving
assistance to the sick and the wounded in times of war.
It was after the two (2) world wars when the issue of human
rights took center stage. The destructive effects of the wars impelled
leaders from different countries to come together and forge an alliance
to maintain world order through the protection of human rights. On
June 26, 1945, the Charter of the United Nations was adopted. On
December 10, 1948, the United Nations General Assembly (UNGA)
adopted the Universal Declaration of Human Rights. December 10 has
since been observed as International Human Rights Day. Other
treaties and protocols were thenceforth entered into by states. To this
day, there are ten (10) core human rights treaties.
II. D. THREE (3) “GENERATIONS” OF HUMAN RIGHTS

The three (3) generations of human rights refer to the order in
time when a particular set of rights began to develop and gain the
recognition by states. The term “generation” does not mean that one
set or group came after another set or group, or that the first
“generation” was rendered obsolete when the second “generation”
emerged. The “generations” are not also stages of the rights, because
the third generation is not a mere improvement of the second, nor the
second a mere improvement of the first. Rather, the term “generation”
refers to the succession of periods when societies and governments
began recognizing a set of rights, though not necessarily in the order
of man’s priority, for man’s first priority was more economic than
political, such as the right to food, etc., a right recognized by humans
long before governments and rulers came into being.
1. First generation human rights refer mostly to the political
rights and civil liberties found in the International
Covenant on Civil and Political Rights (ICCPR), such as
the prohibition against searches and seizures, interruption
of peaceful meetings, or undue intervention to the freedom
of expression. These are “negative” rights in the sense that
they prohibit the doing of something. They are the “No one
shall” rights.
2. Second generation human rights are "positive” rights that

enjoin States to perform an act or do something for the
enjoyment of these rights by the people. These are mostly
economic, social, and cultural rights found in the
International Convention on Economic, Social and Cultural
Rights (ICESCR), such as the right to work, to education
and to food. They are the “ shall” rights.
3. Third generation human rights are newly emerging rights,
such as the right to development, the right of the people to
live in a clean environment, right to live in peace, etc. These
are also known as rights.
CHAPTER III
III. A. WHY THE STATE?

We hear so much clamor for the observance of human rights, in the
courts, the streets, and in media. The term human rights is almost a
byword to us; but how fully do we understand it? Many of us wonder why
the term usually crops up only when the victim is a government critic.
We often hear the gripe “Pag rebelde ang biktima, violation of human
rights, pero pag pulis o sundalo ang pinatay, alright?9
The State as guarantor of human rights

The State is not the giver of human rights, for these are inherent
in all human beings. The role of the State in the social order is to see to it
that members of society acknowledge its authority and that it governs
the people 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 is the State’s duty to guarantee the
continued enjoyment by the people of their rights. In other words, in
order to achieve an orderly society where there prevails a harmonious
relationship between the ruler and the ruled, the ruled must bow to the
authority of the ruler, and the ruler must respect the inherent rights and
fundamental freedoms of its citizens.
As guarantor of human rights, the State may be held accountable
when people are deprived of their rights by its action or inaction.
No such guarantee exists on the part of private entities and

civilians. If a security guard at a shopping mall checks a customer’s bag
upon entrance, the customer cannot invoke the protection against
warrantless and illegal searches, and sue the mall for violation of his/her
human rights for the guard’s act. The Supreme Court made a very
instructive ruling on this in the case of People of the Philippines vs. Andre
Marti,1 which will be discussed later. It does
’G.R. No. 81561, January 18,1991.
15
16 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAW8
not mean, however, that private persons are exempt from liability for human
rights violations. They still are, although not directly within the sphere of
our existing “human rights mechanisms,” but under criminal law.
Nonetheless, the Philippine ratification of the Rome Statute in November
2011 may subject Filipino individuals to international criminal liability for
certain offenses. Human rights scholars also opine that corporations could be
liable for human rights violations.
For the meaningful enjoyment of human rights by everyone while
maintaining the delicate balance of ensuring a peaceful and orderly society
under a regime of the rule of law, the State may regulate and limit certain
activities of its people. By virtue of the Police Power, Congress may pass laws
to uphold and promote human rights as well as set parameters within which
they can be enjoyed. Executive officials may implement programs to enhance
the conditions of the people and enforce laws for the observance of those
parameters, and the Supreme Court may issue orders and writs to protect
human rights. In short, that “delicate balance” can only be achieved if the
State promotes the respect for human rights, and members of society
acknowledge that the enjoyment of certain rights is subject to the State's
prudent and reasonable exercise of Police Power. Thus, the wisdom and
application of the legal maxim in property law, “Sic utere tuo ut alienum non
laedas” (“So use your own as not to injure another's property").
Human Rights and the Rule of Law

In order for society to strike the delicate balance between the
government's authority to rule and the people’s entitlement to their inherent
rights, a strict adherence to the Rule of Law must be observed.
Under the Rule Of Law, “the law is preeminent and can serve as a check
against abuse of power."2 3 This is opposed to Rule By Law, where the law
serves “as a mere tool for a government that suppresses in a legalistic fashion."2
2Tamanaha, Bryan, On The Rule of Law: History, Politics, Theory, Cambridge University Press (2004),
citing Chinese law professor Li Shuguang.
3lbid.
CHAPTER III 17
There is perhaps no better illustration of the contrast between

the terms Rule Of Law and Rule By Law than this one by Professor Li
Shuguang. The early concepts of Rule of Law included those which
were enacted at the whim of princes and rulers for their subjects to
obey. Aristotle considered as Rule of Law only that set of laws which
was based on reason, and as Rule of Man that which was based on
other considerations.4 Many of these laws were not always just and
fair. The “dura lex sed lex” maxim became more of a threat rather than
a tenet whereby people can seek redress for grievances.
Even now, the term Rule of Law has been so used and abused
that it is slowly becoming a hollow concept. But the “Rule of Law
argument” should not be confused with the use of procedural
maneuvers which are allowed under certain rules or regulations.
Dexterous juggling of procedural rules may sometimes give an illusion
of legality to an act, but could in fact be “suppression in a legalistic
fashion,”5 the very thing that is anathema to the Rule of Law. This
fishy line of argument actually anchors on rules rather than on law,
and pertains to “rules” as a set of prescribed regulations, rather than
to “rule” as the authority for good governance. Rules are not supposed
to subvert the law, and the law must conform to constitutional
limitations. Both must not be used as a shield to cover oppressive acts.
The genuine concept of Rule of Law is and should be an ideal that
promotes and respects human rights.
Violations by ((State actors”

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 the State
itself. Part 1, Chapter 2 of the Articles on State Responsibility
provides the basis for State accountability when a public officer
violates the rights of an individual. This is the reason why demands
for human rights are made against the government when, for instance,
a police officer fails to observe the Miranda warning, or makes
shortcuts in implementing the law, or manhandles a street
parliamentarian or violates a person’s right to privacy.
18
Violations by private individuals

Individuals or groups can commit human rights violations and
can be held liable for such. Individual responsibility for human rights
violations committed by private persons are treated and punished under
the criminal law system, a field of law which is very much intertwined
with Human Rights Law, but is offered as a separate subject in the Law
curriculum. Thus, a person who deprives another of his life, liberty, or
property may be charged under penal laws for homicide, kidnapping, or
robbery, for instance. For that to happen, the act or omission must be
defined and penalized under an existing domestic law, otherwise the
offender could not be held liable for it. Nulla poena sine lege (There is no
crime if there is no law punishing the act or omission).
In order that human rights violations committed by individuals
who are not “State actors” can be properly dealt with, it is necessary
that:
a The State, through its lawmaking body, must enact the
appropriate laws to criminalize the human rights violations;
and
b. The State, through its judiciary, must provide adequate judicial
remedies.
State liability for human rights violations committed by

“non-State actors99
State liability may attach for human rights violations committed
by “non-State actors” if the State failed to pass laws to protect its people
from these violations, and to provide for adequate judicial remedy. The
State's role as guarantor of human rights enjoyment and protection
carries with it the obligation to ensure that State actors and non-State
actors do not violate them.
III. B. INTERNATIONAL STATE RESPONSIBILITY

Whenever a State ratifies a human rights treaty, it commits 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
CHAPTER III 19
STATE RES1X)NSI R1LITY
and regulations in ordor to hold private Individuals accountable, The

traditional principle in international law is that individuals are not
directly bound by it, for individuals are not subjects of international
law. By ratifying a treaty, the State agrees to be bound by
international law and thereupon incurs responsibility. In turn, the
State has to ensure that the obligations under the treaty are
observed within its jurisdiction by its people. Hence, the duty to
enact the corresponding laws of local application.
The State’s responsibility to ensure compliance with
international human rights obligations does not end with the
enactment of local laws; it should also see to it that those aggrieved
by the violations of these laws must have adequate judicial remedy.
It is thus important that its judiciary has the mechanisms, the
integrity, and the accessibility to dispense justice for victims of
human rights abuses.
International State responsibility for internationally wrongful

acts
In the international level, State liability may be incurred for
internationally wrongful acts. The Articles on Responsibility of States
for Internationally Wrongful Acts adopted by the International Law
Commission in 2001, provides in Article 1 that, uEvery
internationally wrongful act of a State entails the international
responsibility of that State”
Article 2 of the Articles enumerates the following elements of
an internationally wrongful act of the State:
1. ) The act or omission is attributable to the State under
international law;
2) The conduct constitutes a breach of an international
obligation of the State.
The State responsibility extends to acts committed by
instrumentalities of the State. Persons and entities which have the
status of organs in the internal law of the State are included in the
term “State organs." So also are persons and entities who, although
not organs of a State, are empowered by a law of that State to
exercise elements of governmental authority.
20
Article 4 expressly provides that, “The conduct of any State

organ shall be considered an act of that State under international
law, whether the organ exercises legislative, executive, judicial or
any other functions, whatever position it holds in the organization
of the State, and whatever its character of the central organ of the
government or of a territorial unit of the Stated
States also incur liability if they fail to prevent private
individuals or groups from violating the human rights of others. In
its Comment, the UN Human Rights Committee stated that, “The
positive obligations on States Parties to ensure Covenant rights will
only be fully discharged if individuals are protected by the State,
not just against violations of Covenant rights by its agents, but
would impair the enjoyment of Covenant rights in so far as they are

amenable to application between private persons or entities. There
may be circumstances in which a failure to ensure Covenant rights as
required by article 2 would give rise to violations by States Parties of
those rights, as a result of States Parties' permitting or failing to take
appropriate measures or to exercise due diligence to prevent, punish,
investigate or redress the harm caused by such acts by private persons
or entities. States are reminded of the interrelationship between the
positive obligations imposed under article 2 and the need to provide
effective remedies in the event of breach under article 2, paragraph
3. The Covenant itself envisages in some articles certain areas
where there are positive obligations on States Parties to address the
activities of private persons or entities. For example, the privacy-
related guarantees of article 17 must be protected by law. It is also
implicit in article 7 that States Parties have to take positive measures
to ensure that private persons or entities do not inflict torture or cruel,
inhuman or degrading treatment or punishment on others within
their power. In fields affecting basic aspects of ordinary life such as
work or housing, individuals are to be protected from discrimination
within the meaning of article 26.”
In the landmark Velasq uez-Rodriguez case6 7 the Inter-American
Court of Human Rights found that the victim Manfredo Velasquez
6Art1cle 4, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Interna-
tional Law Commission, adopted at the 53rd Session in 2001.
7Velasquez-Rodriguez vs. Honduras, Inter-American Court of Human Rights, July 29,1988, Series C,
No. 4 (1988).
CHKTTVK in 21
ST\T* RKSf\)NStlULlTY
disappoanHl in the *hands of or u'ith the acquiescence* of Honduran

officials within the framework of u pattern or practice which was
established. The Honduran government’s failure to conduct an
investigation on the disappearance, compounded with allegations of
attempts to thwart the victims' plea for an investigation, was deemed an
indication of government's involvement in the disappearance. In this
case, the Court relied on circumstantial evidence, it being assumed that
direct evidence of the kidnapping would be unavailable, having likely
been suppressed by the government itself. It held that under
International Law, an impairment of the human rights of a person which
is attributable to public authority, “constitutes an act imputable to the
State, which shall assume responsibility.”
Derivative State responsibility for complicity

The general rules on attributing State Responsibility were
mentioned earlier, i.e.,(a) direct responsibility of the State committed by
State actors, and (b) responsibility for acts committed by non-State actors
when the State failed to pass laws, prevent and punish violations, and to
provide adequate legal remedies. So the next question is, can a State be
held liable for the acts of another State?
Under our domestic criminal laws, a person can be held liable for
the acts of another by reason of conspiracy, or when he contributes to the
commission of the crime or to the success of the criminal as a principal,
accomplice, or accessory. To be considered such, he must have performed
an overt act. As a rule, mere presence at the scene of the crime or
acquiescence to the act is not punished.
Under International Law, a State may be held liable for a human
rights violation even if it did not directly commit the act constituting the
violation, provided that it assisted in the commission of the act or allowed
it to happen, similar to a conspirator, accomplice, or accessory in our
criminal law. Articles 16 and 17 of the Articles on State Responsibility
provide for uderivative responsibilitywhich is present where (a) the
State aids and assists in the commission by another of the
internationally wrongful act and, (b) the State exercises direction and
control over the commission of the act.
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAW#
The principle of State Responsibility through complicity probably

originated from the Nuremberg Principles, which states in Principle VII that,
“Complicity in the commission of a crime against peace, a war crime, or a crime
against humanity as set forth in Principle VI is a crime under international
law ”
In the case of Nicaragua vs. United States of America* the United
States was held liable for violation of customary international law on
non-interference in the affairs of another State for “training, arming,
equipping, financing and supplying the contra forces or otherwise
encouraging, supporting and aiding military and paramilitary activities in
and against Nicaragua.” For this reason, the United States was ordered to
make reparations for the injury caused by such violation.
However, on the other issue of whether the United States should
likewise be held liable for producing and distributing a manual to the
guerillas that tended to incite them to fight the Nicaraguan government, the
IC J held that the United States violated the general principles of
humanitarian law by such acts, but found no basis to hold it liable for the
crimes committed by the guerillas.
It should be emphasized that the Nicaragua ruling focused on State
liability by reason of complicity, which should not be confused with the ICTY
ruling in the Delalic case applying the “overall control test” in order to
determine whether the armed conflict was international or internal.
III. C. PHILIPPINE CASES ON STATE RESPONSIBILITY
Prohibition on unreasonable searches and seizures is a

,
restraint against the State and not against private individuals
In the case of People vs. Andre Marti,* 9 the accused was convicted for
violation of the dangerous drugs law when he attempted to ship marijuana
through a courier. It was found out upon inspection by the courier as part of
standard operating procedure that the package
Nicaragua vs. United States of America, International Court of Justice, June 27,1986.
9G.R. NO. 81561, January 18,1991.
CHAPTER III 23
contained marijuana. The Supreme Court ruled that the illegal articles
could be admitted as evidence even if these were products of a search
conducted without a warrant, because the person who conducted the
search was a civilian, not a government agent. It ratiocinated thus:
“The constitutional proscription against unlawful searches and
seizures therefore applies as a restraint directed only against the
government and its agencies tasked with the enforcement of the law.
Thus, it could only be invoked against the State to whom the restraint
against arbitrary and unreasonable exercise of power is imposed.”
“And again in the 1969 case of Walker v. State (429 S.W.2d |
121), it was held that the search and seizure clauses are restraints
upon the government and its agents, not upon private individuals
( < c i t i n g People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892
(1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or.,
317 P.2d 938 (1957).”
“For one thing, the constitution, in laying down the principles of
the government and fundamental liberties of the people, does not govern
relationships between individuals.”
“Similarly, the admissibility of the evidence procured by an
individual effected through private seizure equally applies, in pari
passu, to the alleged violation, non-governmental as it is, of appellant’s
constitutional rights to privacy and communication.”
Justiciability of the solidary right to a healthy environment

In the landmark case of Oposa vs. Factoran,10 the Philippine
Supreme Court recognized the human right of the children- ' petitioners to a
balanced and healthful ecology and of the State’s duty to protect that right,
not only for the petitioners, but also for ■ “generations yet unborn,” thereby
laying down the principle that the solidarity right to a healthy environment
is a justiciable issue that ! can be properly raised before the courts of law in
our jurisdiction.
,0G.R. No. 101063, July 30,1993.

24 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWS
This is particularly significant because this right is a newly evolved

right, a “third generation” right, and because in the international arena,
there had been much debate, still unsettled up to this time, as to who has
responsibility for violations of solidarity rights, in the spate of disasters
brought about by corporate negligence.
In the Oposa case, the petitioners were all minors, suing through
their parents. They asked the Court to have the Secretary of Environment
and Natural Resources cancel the Timber License Agreements (TLAs)
issued by him and to cease and desist from further issuances, claiming that
these would be violative of their right to self-preservation and perpetuation.
The Supreme Court laid down the Doctrine of Intergenera- tional
Responsibility in this case. This means that the present generation holds
the natural resource treasures of the earth in trust for the benefit,
enjoyment, and use of the generations of humankind yet to come, and the
State has the responsibility to protect and see to it that this be realized.
The case was brought against respondent Factoran, in his capacity as
the Secretary of the Department of Environment and Natural Resources,
thus ascribing responsibility to the State the acts of its officials. Although
what constituted potential human rights violations were activities of
private corporations and business entities, the State has the power to
regulate these activities, and it is the exercise of this power which is the
crux of the controversy. Because the private business entities were not
impleaded in the case, the issue zeroed in on State Responsibility to protect
the human right to a clean and healthy environment.
It would have been a lot more tricky if the case involved private
entities or corporations, especially when the corporations are “citizens” of
another country. In the case of transnational corporations which operate in
many countries other than that where it is a national of, accountability may
be difficult to enforce and state responsibility may be hard to determine.
The norms for the responsibility of transnational corporations for
violations of human rights are still to be formalized. Efforts are ongoing for
the adoption of U.N. Doc. E/CN.4/Sub.2/2003/L.ll at 52 (2003) (“The Norms
on the Responsibilities of Transnational
CHAPTER III 25
Corporations and other Business Enterprises with regard to Human

Rights”), which was approved in August 2003 by the UN Sub-
Commission on the Promotion and Protection of Human Rights.
The Writ ofKalikasan

The human right to a balanced and healthful ecology got
another boost with the issuance of the Rule of Procedure on
Environmental Cases, A.M. No. 09-6-8-SC, particularly Rule 7 on the
Writ of Kalikasan.
The writ is “a remedy available to a natural or juridical person,
entity authorized by law, people’s organization, non-governmental
organization, or any public interest group accredited by or registered
with any government agency, on behalf of persons whose
constitutional right to a balanced and healthful ecology is violated, or
threatened with violation by an unlawful act or omission of a public
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.”11
in. D. COMMAND RESPONSIBILITY

Liability for violations of human rights, in the same manner as
criminal liability under the Revised Penal Code, may be incurred by
an act or omission. The offender can be made to answer for his act, as
well as for his inaction, when such act or inaction results in human
rights violation. The failure of a superior officer to stop human rights
violations committed by his subordinates, though absent a showing
that he directly ordered the commission of these acts, could still make
him liable as well for such acts, under the Doctrine of Command
Responsibility.
1C The Yamashita Standard

‘ One of the earliest and most internationally persuasive
decisions on this is a case originating from the Philippines, later on
elevated to the United States Supreme Court.
'Rule 7, Part III, A.M. No. 09-6-8-SC.

In Re Yamashita12 is a case involving General Tomoyuki Yamashita,

the commander of the Japanese Imperial Army in the Philippines. He was
charged for violations of the laws of war by “unlawfully disregarding and
failing to discharge his duty as a commander to control the acts of
members of his command by permitting them to commit war crimes.”
There were allegations that the Japanese army under his command
engaged in a “deliberate plan to massacre and exterminate a large part of
the civilian population of Batangas Province as a result of which more than
25,000 men, women, and children all unarmed noncombatant civilians,
were brutally mistreated and killed.”
A military commission heard the case of Yamashita. Upon
conviction, Yamashita applied for a writ of habeas corpus before the
Philippine Supreme Court, wherein he assailed the commission’s lack of
jurisdiction, among others. The Philippine Supreme Court denied his
application and ruled that the Commission was validly constituted. The
case was elevated to the U.S. Supreme Court, which found Yamashita
guilty and sentenced him to death. The Court ruled that under
International Law on the law of war, violations of war “have to be avoided
through the control of the operations of war by commanders who to some
extent are responsible for their subordinates.” As commander, General
Yamashita was under an "affirmative duty to take such measures as were
within his power and appropriate in the circumstances to protect prisoners
of war and the civilian population.”
The Yamashita ruling resulted in a new legal standard, so to speak,
governing command responsibility, which gained considerable
international acceptance as part of international customary law. The
“Yamashita Standard” was applied in some decisions, although there are
criticisms against it, such as its doubtful applicability in cases where those
charged are commanders of armies of entities which are not recognized as
States. For instance, the International Criminal Tribunal of the former
Yugoslavia (ICTY) made no reference to this standard in the cases brought
before it, and understandably so, because the circumstances surrounding
such cases are different.
12//j Re Yamashita, 327 U.S. 1 (1946).

CHAPTER III %'J
A similar standard, known as the “Medina Standard," was adopted

based on the prosecution of US Army Captain Ernest Medina in connection
with the My Lai Massacre during the Vietnam War. In that case however,
Medina was acquitted.
Under the Rome Statute, a “military commander or person effectively
acting as a military commander shall be criminally responsible for crimes
committed by forces under his or her effective command and control, or
effective authority and control as a result of his or her failure to exercise
control properly over such forces,"*^ This will be discussed more extensively
under Chapter XVI. 13
13Article 28. Rome Statute of the International Criminal Court.

CHAPTER IV
SOURCES OF INTERNATIONAL
HUMAN RIGHTS LAW
Article 38(1) of the Statute of the International Court of Justice (ICJ)

enumerates the sources of human rights laws as follows, to wit:
1. International conventions;
2. International custom, as evidence of a general practice
accepted as law;
3. General principles of law recognized by the community of
nations (referred in the Statute as “civilized nations”). Nos. 1 to
3 are considered the principal sources of international law;
4. Judicial decisions and the teachings of the most highly
qualified publicists (as subsidiary means for the determination
of rules of law).
(plfKb Y C• ,$
IV. A. INTERNATIONAL AGREEMENTS
International agreements, more commonly known as “treaties,”

usually are officially called conventions or covenants. The Vienna
Convention on the Law of Treaties defines a treaty as a “legally binding
written agreement concluded between States.” A supplement or subsequent
agreement relative to an existing treaty is usually referred to as “protocol”
Thus, the “Palermo Convention” refers to the original treaty which is the
United Nations Convention Against Transnational Organized Crime, while
the “Palermo Protocols” refer to the subsequent treaties entered into by the
states to supplement the original treaty and which deal on specific crimes,
e,g,9 human trafficking, smuggling of migrants, or arms trafficking.
A State’s consent to be bound by a treaty is expressed through
ratification, approval or acceptance. Generally, the act of merely signing a
treaty is not enough to bind the State. Once a treaty is ratified, the State is
bound to faithfully comply with its treaty obligations under the doctrine of
“pacta sunt servanda” But unlike other treaties where liability arises only
where there is bad faith on
28
CHAPTER IV 29
the part of a State, in human rights treaties there can be liability

even in the absence of bad faith.
The core international human rights treaties are:
1. International Convention on Civil and Political
Rights (ICCPR, entered into force on March 23,
1976) with 2 Optional Protocols;
2. International Convention on Economic, Social and
Cultural Rights (ICESCR, entered into force on
January 3,1976);
3. Convention Against Torture and Other Cruel,
Inhuman and Degrading Treatment or Punishment
(CAT, entered into force on June 26,1987);
4. International Convention on the Elimination of All
Forms of Racial Discrimination (ICERD, entered
into force on January 4, 1969);
5. Convention on the Rights of the Child (CRC,
entered into force on September 2, 1990) with 2
Optional Protocols;
? O A <DL±)<>)
6. Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW, entered
into force September 3,1981) with 1 Optional
Protocol;
* 7. International Convention on the Protection of the
Rights of All Migrant Workers and Members of
their Families (entered into force July 1, 2003);
8. International Convention for the Protection of All
Persons from Enforced Disappearances (adopted in
2006);
9. International Convention on the Protection and
Promotion of the Rights and Dignity of Persons
with
Disabilities,,
•IV. B. INTERNATIONAL CUSTOMARY LAW

30
INTERNATIONAL AND PHILIPPINE HUMAN R
2) The subjective element consisting of a “belief that this practice

is rendered obligatory by the existence of a rule of law
requiring it” (opinio juris sive necessitatesor opinion
jurisor an opinion of law or necessity).
In the cases of North Sea Continental Shelf\u; the
International Court of Justice (ICJ) laid down the ; Doctrine of
Customary Law, and made clear the requisite objective and
subjective elements.
Jus cogens
There is a unique class of customary laws that occupy the | highest
echelon in Human Rights Law hierarchy, known as jus cogens l (“compelling
law”). This group of fundamental norms is superior to other 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 to be
inderogable as well.
The definition, elements, and effect of peremptory norms or Ujus
cogens” over treaties are contained in the Vienna Convention on the Law
on Treaties, which states that:
“Article 53. Treaties conflicting with a peremptory norm of i general
international law (jus cogens*). — A treaty is void if, at | the time of
its conclusion, it conflicts with a peremptory norm of general
international law. For the purposes of the present i Convention, a
peremptory norm of general international law 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 a subsequent norm of general international law
having the same character.” ^
From this article, we can derive the following elements of jus •
cogens, namely:
1. It is a peremptory norm of general international law;
2. It is accepted and recognized by the international
community;
14WestGermany vs. Denmark, and West Germany vs. Netherlands, International Court of Justice,
February 20,1969.
r £ DO .1) I? "f
CHAPTER IV 31
3. There can be no derogation therefrom;

4. It can be modified only by a subsequent norm of general
international law having the same character.
The concept of jus cogens became controversial because of the

difficulty in determining what is the norm, considering that different
States may have different cultural influences and different standards
to gauge what is peremptory norm. Among the universally-accepted
norms are the rights against slavery, genocide, acts of aggression, and
racial discrimination.
The International Court of Justice (ICJ) settled some of the
issues pertaining to jus cogens. In the case of Nicaragua vs. the United
States of America15 decided in 1986, the ICJ reiterated the superiority
ofjus cogens as a source of human rights. The ICJ ruled that the
principle of non-use of force is jus cogens, so that even if the UN
Charter and the treaty were not applicable in the case, the ICJ may
still rule on that issue. In this case involving the Unites States, the
latter did not ratify the applicable treaty and did not make a
categorical acceptance of the jurisdiction of an international court.
Jurisdictional questions notwithstanding, the ICJ still ruled on the
case against the United States because it involved a jus cogens right.
Obligatio erga omnes

i There is a category of international obligations known as
t obligations erga omnes. These are obligations that are owed by
x States to all, regardless of the presence or absence of their assent to
|
E
1
be bound thereby. These obligations are intertwined with the
concept ofjus cogens and usually arise from jus cogens rights.
These obligations were first recognized in the obiter dictum in
t the case of Barcelona Traction Light and Power Company(Belgium
Y>
is vs. Spain) which was decided by the International Court of Justice.
In the Barcelona Traction case, the ICJ made a distinction between
the State’s obligation to the international community and its
obligations to another State in the field of diplomatic protection. If a
fl State violates a treaty with another State and the treaty
15
Nicaragua vs. United States of America, International Court of Justice, June 27,1986.
only pertains, for instance, to their bilateral agreement regarding * trade,

that infringement is a private matter between the contracting States.
However, where human rights laws which are of paramount ;
importance for the international community are violated, all states have a
legal interest in their protection, for they are obligations owed by the State
to the community of States. They are obligations , erga omnes.
A respected human rights scholar, M. Cherif Bassiouni, whom this
writer had the privilege of listening to at a symposium on Human
Trafficking at Johns Hopkins University in Washington,]
D. C. in November 2010, wrote about international crimes which
are considered “jus cogens crimes” and which give rise to erga omnes
obligations of a State to prevent and prosecute. According to Prof.
Bassiouni, the statute of limitations do not apply to jus cogens : crimes, and
universal jurisdiction may even apply to these crimes. J
Universal jurisdiction
When discussing jus cogens rights and erga omnes obligations, \
reference is usually made to the concept of universal jurisdiction.
This is because the principles of jus cogens and erga omnes f
transcend boundaries.
Under this principle, a State may prosecute a crime committed
elsewhere if such crime is a jus cogens crime. Belgium is responsible for the
first widely-implemented law on universal jurisdiction, which it passed in
1993. (In 2003, the law was repealed and substituted with another one on
extratemtorial jurisdiction.) Perhaps one of the best known examples of
the exercise of universal jurisdiction was the issuance of a warrant of
arrest by Spanish Judge Baltasar Garzon against former Chilean dictator
Augusto Pinochet for crimes committed in Chile against Spanish citizens,
which warrant was implemented in the United Kingdom. In Europe,
members of the European Union also adopt the European Arrest Warrant
Scheme, and in the United Kingdom, they have the Commonwealth
Extradition Scheme.
The concept of universal jurisdiction has met a lot of criticisms from
very influential statesmen including Henry Kissinger because it is deemed
an intervention of a State’s sovereignty over its citizens.
CHAPTER IV 33
The initial fervor that welcomed the concept has waned over the
years, although some sectors are still vigorously pursuing its
application by States on certain select crimes. The creation of the
International Criminal Court (ICC) and other international criminal
tribunals also reduced the need for the exercise by individual States
of universal jurisdiction. -— * •'
Actio popularis
Prosecution of jus cogens crimes may be initiated by another
person or group of persons for the benefit of another through a
complaint actio popularis. Non-government offices (NGOs) of good
standing in the international community may be allowed to sue for
and on behalf of victims who do not have the means to do so.
Complaints actio popularis do not necessarily arise from omnes
obligations: the term erga omnes refers to obligations pf States to the
international community, while actio i,s a rule of procedure
in bringing a suit on another’s behalf. However, these are terms
which are usually used together in the course of the discussion on jus
cogens rights and erga omnes obligations,
IV. C. GENERAL-PRINCIPLES OF LAW 'U1- :

General principles of law are ‘unwritten,'Jand 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. W.-CNVI-
An example of a body of principles of: law originating from
experts’ views is the Yogyakarta Principles on the
rights of lesbians,
gays, bisexuals and transgenders (LGBT). While theYogyakarta
comprises mostly of human rights principles already embodied in
other treaties and are considered fundamental human rights of every
individual regardless of sex (such as the rights to marry and to found a
family), these rights become controversial where it refers to LGBT,
simply because of traditional gender stereotypying. The Yogyakarta
Principles is still in its infancy and many States are still not wont to
adopting it, especially those whose governments are deeply influenced
by religion. It will likely take a long time before it will evolve into being
part of “generally-accepted principles of law,” and probably only in
certain regions of the world.
In many instances, the United Nations is responsible for pushing

for studies and researches on issues of international concern, for providing
an avenue for international discussion, and for adopting principles
relative to such issues.
The Incorporation Clause

The Philippine Constitution "adopts the generally accepted
principles of international law as part of the law of the land.”16 This is
referred to as the incorporation clause. This means that the Philippines
has the obligation to observe generally accepted principles of international
law not only as customary law but because of the express provision of the
incorporation clause in the Philippine Constitution.
In Kuroda vs. Jalandoni,17 the Philippine Supreme Court ruled
that the Military Commission created by the President of the Philippines
which tried General Shigenori Kuroda of the Japanese Imperial Army for
the war crimes committed in Philippine territory during World War 2, was
valid and constitutional by virtue of the incorporation clause in Article 2 of
the Philippine Constitution. That, despite the fact that the Philippines
was not a signatory of The Hague and Geneva Conventions at that time.
IV. D. JUDICIAL DECISIONS AND TEACHINGS

International case law is recognized in Article 38 of the Vienna
Convention on the Law on Treaties as a subsidiary means for the
determination of rules of law.
International 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
an international dispute. The teachings of the most highly qualified
publicist may also be consulted in ruling an international dispute.
The international and regional tribunals are:
(1) International Court of Justice (ICJ) — The principal judicial
organ of the United Nations Organization. It
’•Section 2, Article li# 1987 Philippine Constitution.

17
G.R, NO. 1-2662, March 26,1949.
CHAPTER IV 35
was established by the Charter of the United Nations in June

1945 and began work in April 1946. It is based in The Hague,
The Netherlands (which is known as the “Legal Capital of the
World”), and is the only UN organ located outside New York,
USA, where the UN has its headquarters.
At the ICJ, only member States may lodge complaints.
Individuals are not recognized as parties in that court. It
exercises jurisdiction in two (2) kinds of cases:
(а) Contentious cases - Cases submitted by State
TT
Members pf the IJN, or other States which are

parties to the Statute;.of the Court or which have
accepted its jurisdiction; and
(б) Advisory proceedings) Requests for advisory
opinions on legal matters submitted by UN organs
and specialized agencies.
The official languages in the ICJ are English and French. It is
composed of 15 Judges, who are, elected for terms of office of
nine (9) years by the, United Nations General Assembly and
the Security Council. It is assisted by its administrative organ
known as the Registry.
While individuals still do not have a jus standi to bring a
complaint before the ICJ, they may be beneficiaries of such
suit, which can be brought in their behalf by a State.
The Barcelona Traction case(Belgium vs. Spain)18 decided by
ICJ is noteworthy because the court laid down two (2)
important doctrines:
(а) A State can bring the case for the benefit of a
corporation; and
(б) It made an obiter dictum recognizing and
expanding the meaning of erga omnes obligations.
In this case, Belgium brought the case in behalf of Belgian
nationals who were investors in a Toronto-registered
18Belgium vs. Spain, International Court of Justice, July 24,1964.

36
company which was doing business in Spain. Although ICJ

ruled that Belgium had no jus standi to bring the suit, it
pronounced that Canada would have such right to bring the
suit for the benefit of the corporation.
(2) International Criminal Court (ICC) — A court created by the
Rome Statute of the International Criminal Court on July
17, 1998. It is also based in The Hague, The Netherlands.
The ICC is an independent permanent international
criminal court. The ICC is known as a court of last resort,
and will only try cases after the exhaustion of remedies
before domestic courts, and only for the gravest offenses.
The cases which may be tried at ICC are:
(a) Crimes against humanity, such as terrorism;
(b) War crimes (which can be committed only by
members of the military);
(c) .Genocide; and
(d) , Crimes of aggression.
(3) Ad hoc criminal tribunals:
(a) i International Criminal Tribunal of the former P
Yugoslavia (ICTY);
(b) International Criminal Tribunal for Rwanda
(ICTR).
There were also the Nuremberg Tribunal (prosecution of
major war criminals of the Nazi empire) and the Tokyo
Tribunal (for atrocities committed during World War II
by the Japanese Imperial Army.)
The decisions of the Nuremberg Tribunal were
particularly instructive, primarily because the tribunal
was one of the early war crimes courts, and secondarily
because of the controversial personalities tried in that
court. The Nuremberg Principles continue to have
persuasive effect to this day.
CHAPTER IV 37
(4) Regional Courts:

(а) European Court of Human Rights (EC+HR) based in
Strasbourg, France, is also known as the Strasbourg
Court. This was created by the Convention for the
Protection of Human Rights and Fundamental
Freedoms, which was signed in Rome on November 4,
1950. The same treaty also created the European
Commission of Human Rights (ECHR). Presently,
individuals may bring a suit directly to the EC+HR.
as provided under the 11th Protocol to the ECHR
which came into force on November 1,1998.
(б) Inter-American Court of Human Rights (IACHR)
based in San Jose, Costa Rica, was established by the
American Convention on Human Rights of 1969.
Under the new Rules of Procedure adopted in 2000
and in force starting June 1, 2001, individual
complainants are now granted locus standi in judicio
before the IACHR. However, a Declaration of
Acceptance by the State Party to the American
Convention is necessary in order for the IACHR to
exercise its jurisdiction on a complaint filed against
that State. The United States of America has not
made such Declaration.
(c) African Court of Human and People's Rights (ACHPR)
was created under the Protocol to the African Charter
on Human and People’s Rights on the Establishment
of an African Court on Human and People’s Rights,
which entered into force in 2004. It was not created by
the original African Charter CBanjul Charter),
although said Charter created the African
Commission on Human and People’s Rights.
Actio popularis is allowed under the African system
(non-victims may bring the suit in behalf of victims).
This aside from the system whereby States may bring
a complaint against another State; and the State
Reporting mechanism.
There is no Asian human rights court yet, although ASEAN

human rights advocates were successful in engineering the
creation of the ASEAN Human
38
Rights Commission in October 2009. The reason

advanced for this failure to come up with such a court
in Asia is the cultural diversity of the peoples in this
region. This, however, was debunked by some Asian
human rights scholars, particularly Xiarong Li, who
maintained that human rights are universal and not
“culturally specific”19
(5) Hybrid or internationalized courts — These are
courts which are a mix of domestic and international,
both in the judges and staff as well as the laws
applied, BUT they either are integrated in the
domestic judicial system or appended to it. Examples
are:
(а) Sierra Leone — The Special Court for Sierra
Leone.
(б) Cambodia — Known as the Extraordinary
Chambers in the Courts of Cambodia, this court
was created to address crimes committed by
the Khmer Rouge.
(c)
East Timor — Special Panels of Serious Crimes.
Kosovo — Known as “Regulation 64” Panels in
(d)
the Courts ofKosovo.
The recent demilitarization of Myanmar (Burma)
and the transition of its government to a more
democratic system could bring about prosecutions for
human rights abuses committed by the previous
leadership of the military junta.
Teachings of jurists and publicists

The teachings of highly qualified jurists and publicists is a
subsidiary means of determining international human rights law.
In the case of the international laws of armed conflict, the
declaration of the Russian delegate Fyodor Fyodorovich Martens
19
Xiarong Li, "Asian Values and the Universality of Human Rights"(lnstitute for
Philosophy and Public Policy, 1996).
CHAPTER IV 39
to The 1899 Hague Convention on the Laws and Customs of War on

Land, became a guiding principle of sorts in determining how States
should conduct themselves during wartime when there are no specific
rules enacted which apply to the situation.
Known as the Martens Clause, it forms part of the Preamble of The
1899 Hague Convention, the wordings of which are as follows:
“Until a more complete code of the laws of war is issued, the
High Contracting Parties think it right to declare that in cases
not included in the Regulations adopted by them, populations
and belligerents remain under the protection and empire of the
principles of international law, as they result from the usages
established between civilized nations, from the laws of humanity
and the requirements of the public conscience ”20
The International Criminal Tribunal of Afghanistan

The International Criminal Tribunal of Afghanistan which
convicted US President George W. Bush on March 13, 2004 in Tokyo,
is not an official tribunal. It is a people’s tribunal founded on the
international criminal law and international humanitarian law.
The Kuala Lumpur War Crimes Commission

In May 2012, former US President George W. Bush, former
Vice-President Richard Cheney, Donald Rumsfeld and legal advisers
Alberto Gonzales, David Addington, William Haynes, Jay Bybee and
John Yoo were tried and convicted in absentia in Malaysia for war
crimes by the Kuala Lumpur War Crimes Commission, an initiative
of former Malaysian Prime Minister Mahathir Mohammad. This
tribunal is similar to the International Criminal Tribunal of
Afghanistan and is not official.
“Marten's Clause, The Hague Convention on The Laws and Customs of War on Land, July 29,
1899,
CHAPTER V
On December 10,194S, the LTnited Nations General Assembly

(CNGA) adopted and proclaimed the Universal Declaration of Human
Rights (UDHRX 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.55’21 22
The Universal Declaration of Human Rights and two (2) other
human rights treaties are collectively known as the International Bill of
Rights.-The two (2) treaties are the International Convention on Civil and
Political Rights(ICCPR) and its two (2) protocols, and the International
Convention on Economic, Social and Cultural Rights (ICESCR). (On the other
hand, the Convention on the Elimination of All Forms of Discrimination
Against Women or CEDAW is also known as the International Bill of Rights
for Women.)
This Chapter will present the instruments consisting the
‘Tntemati onal Bill of Rights” and will give an introduction of the rights
and freedoms embodied therein. A brief discussion on the legislation and
application of such rights and freedoms in the Philippines will be made.
V. A.THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

(UDHR)
The primary human rights instrument, the Universal Declaration
of Human Rights (UDHR), is not a treaty. The United Nations General
Assembly (UNGA) enacted UDHR as a resolution, thus legally it has the
force and effect only of a recommendation, which is considered asoft
law”and which traditionally would have lacked binding effect upon
States. It, however, has been observed by States as if it were a treaty,
and has since evolved into general principles of international law.
21http://www.un.org/en/documents/udhr/history.shtml[accesed on July 17,2013.-Ed.].

22http://www.ohchr.org/Documents/Publications/FactSheet2Rev.len.pdf[accesed on July 17,
2013.-Ed.].
40
CHAPTER V 41
The document was drafted by the first United Nations Commission

on Human Rights, then chaired by Eleanor Roosevelt. The Philippines
was in the sixteen-member Commission. John Humphrey of Canada
wrote the first draft (“Humphrey Draft”). The final draft (“Cassin Draft”
or “Geneva Draft”) which provided the structure of the Declaration was
composed by Rene C assin of France. It is considered the most
translated document in the universe.
UDHR contains a Preamble and 30 articles. Among the notable
declarations found in the Preamble of UDHR are:
(1) That human rights are inalienable rights of all members of
the human family;
(2) The recognition of human rights is the foundation of freedom,
justice, and peace in the world;
(3) The freedoms of speech and belief as well as the freedom from
fear and want are the highest aspiration of the common
people;
(4) Rebellion against tyranny and oppression is recognized as a
last resort where human rights are not protected.
The Universal Declaration of Human Rights (UDHR) recognizes
not only the civil and political rights of a person but also his economic
rights, such as employment, food, shelter, social security, etc.; social
rights, and cultural rights. Solidarity rights are also recognized in the
Declaration. The Bill of Rights in the 1987 Philippine Constitution
provides for similar guarantees to human rights as those provided in the
UDHR, and almost with the same wordings used as the latter.
V. B. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL

RIGHTS (ICCPR)
The International Covenant on Civil and Political Rights (ICCPR)
was adopted and opened for signature, ratification and accession by
General Assembly Resolution 2200A (XXI) of 16 December 1966. It' was
entered into force on March 23, 1976, in accordance with Article 49
thereof. The Philippines signed it three (3) days after it was opened for
signature on December 19,1966, but
it was not until twenty (20) years later, on October 23, 1986, when it was
ratified.
ICCPR has two (2) additional protocols:
a) The First Optional Protocol, which entered into force on March
23, 1976, 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. This was ratified by the Philippines on
August 22,1989.
b) The Second Optional Protocol, which entered into force on July
11, 1991, is aimed at the abolition of death penalty. This was
ratified by the Philippines on November 20, 2007, after it
passed Republic Act 9346 abolishing death penalty in June,
2006.
In both documents, UCCPR and ICESCR, the first article is on the
right of self-determination, by virtue of which peoples may “freely
determine their political status and freely pursue their economic, social
and cultural development.”
ICCPR has a compliance and monitoring mechanism which is the
Human Rights Committee. (The Human Rights Committee should not be
confused with the Human Rights Council a UN Council under the UN
General Assembly, or the defunct Human Rights Commission under the
ECOSOC, which the Committee replaced.) The Committee shall be
discussed more thoroughly in Chapter VII, where relevant cases involving
the Philippines will be presented.
V. C. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND

CULTURAL RIGHTS (ICESCR)
The International Covenant on Economic, Social and Cultural
Rights (ICESCR) was adopted and opened for signature, ratification, and
accession by General Assembly Resolution 2200A (XXI) of 16 December
1966. It entered into force on January 3, 1976, in accordance with Article
27 thereof. The Philippines signed it at the same time as ICCPR on
December 19,1966 and ratified the covenant on June 7,1974.
The ICESCR has a reporting mechanism called the Committee on
Economic, Social and Cultural Rights (CESCR). There is one
CHAPTER V 43
[ optional protocol to the ICESCR, which opened for signature and [

ratification on December 10, 2008. It has not yet entered into force I as it only
has eight (8) ratifications thus far, whereas it needs at least ten (10) member
States to ratify the same. The Philippines has not yet signed nor ratified the
protocol as of this writing. The I optional protocol provides for the jurisdiction
of the Committee on Economic, Social and Political Rights (CESCR) to receive
and consider communications from individuals and groups claiming to be
victims of violations of any of the rights set forth in ICESCR.
V. D. RIGHTS AND FREEDOMS UNDER THE INTERNATIONAL BILL

OF RIGHTS
a) Equality in dignity and rights

The Universal Declaration of Human Rights starts with the
declaration of equality of all human beings in dignity and rights in Article
1, thus laying down at the outset the most fundamental and basic rules for
the enjoyment by every person of his human rights: the respect and
protection that each human being deserves.
The International Covenant on Civil and Political Rights (ICCPR)
echoes this declaration in its Article 3, stating that “The States Parties to
the present Covenant undertake to ensure the equal right of men and women
to the enjoyment of all civil and political rights set forth in the present
Covenant”
This declaration ensures that every human is entitled to his/ her
rights regardless of sex, race, religion, status in life or political beliefs, and
that no one enjoys preference or priority over another in the entitlement of
human rights. This does not necessarily translate to uniformity of rights,
for different classes of persons may have different rights (e.g., children,
indigenous peoples) but rather to equal opportunity to enjoy human rights.
b) Right to life, liberty and security

Probably the most discussed article in the Universal Declaration of
Human Rights is Article 3, which provides that “Everyone has the right to life,
liberty and security of person” It encapsulates the key political and civil rights
of a person that must be protected by the , State.
44
Although positive wording is used, the article actually is a negative

right in that it restrains the State from violating a person’s I life, liberty
and security. Article 6 of the ICCPR states the right to life using both
positive and negative wording, thus “Every human J being has the
inherent right to life. The right shall be protected by | law. No one shall
be arbitrarily deprived of his life” Airticle 9 of the same covenant also
uses positive and negative wording in respect | to the right to liberty
and security, thus: “Everyone has the right to J liberty and security of
person. No one shall be subjected to arbitrary j arrest or detention....”
The Philippine Constitution contained a similar provision in its \
Bill of Rights. Article 3, Section 1 thereof provides that, “No person shall
be deprived of life, liberty or property without due process of k law, nor
shall any person be denied the equal protection of the laws.”
An interesting question is, can the right to life be waived? Does
the right to life include the right to end one?s own life? In short, does a
person have the right to die? There are two (2) interesting cases in
the United Kingdom which deal on the issue.
In the case of Pretty vs. UK, decided April 29, 2002,23 Mrs. f • Diane
Pretty petitioned the European Court of Human Rights 6 (Application
No. 2346/02) to be allowed to commit suicide with the help of her
husband Brian. Mrs. Pretty, then 43, was suffering from advanced stage
of motor neuron disease which paralyzed her from the neck down. She
argued that she had the right to life as well f as the right to die. The
Court ruled that the petitioner did not have fj the right to die, and that
no such right can be derived from the | right to life.
On the very same day that Mrs. Pretty’s case was decided by f the
European Court, also known as the Strasbourg Court, another |9
terminally-ill patient, identified only as Miss B, ended her life in f a
hospital in UK with the removal by doctors of the ventilator which §
supported her after she was given the go-signal by the UK court.
Although there was an apparent inconsistency in the decisions " in
the two (2) cases, medical ethicist Dr. Gillian Craig observed that J
“Pretty vs. UK, (2346/02) European Court of Human Rights, 2002.

CHAPTER V 45
THE INTERNATlbNAL BILL OF RIGHTS
there was really a marked difference between the two (2): in the
case of Miss B, she wanted medical treatment to be stopped (she
had the right to refuse medical treatment), while in the case of
Mrs. Pretty, she wanted to be killed.24
The right to liberty and security is further enunciated in
Articles 9 and 10 of ICCPR. Article 9 states that “Everyone has the
right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law ”
Clearly, the right to liberty and security is not absolute and
may be restricted on valid grounds, such as the imprisonment of
a convict by way of penalty for the commission of an offense, or
the hospitalization of insanei persons.25 In the case of persons
detained during the pendency of a criminal proceeding for'which
no bail is recommended, or if one is recommended, the same is
not given, the restriction of liberty is done to assure that the
accused will not abscond and defeat the proceedings.
Article 10(1) of ICCPR states that, “All persons deprived of their
liberty shall be treated with humanity and with respect for the inherent dignity
of the human person”The aim of imprisonment shall be the
reformation and rehabilitation of the convicts. Juveniles shall be
separated from adult prisoners, and convicts shall be separated
from pre-trial prisoners or those whose cases are still being
tried.
Article 10(2) of ICCPR provides for a separate treatment for
convicts from those still undergoing trial, also called pre-trial
prisoners. The latter enjoys the right to be presumed innocent
until the contrary is proved. Pre-trial prisoners are detained in
centers run by local government units such as the Cebu Provincial
Detention and Rehabilitation Center (CPDRC) or the Bureau of
Jail Management and Penology under the Department of Interior
and Local Government (DILG); whereas convicted prisoners are
usually transferred to detention facilities or penal colonies
operated by the Bureau of Corrections under the Department of
Justice (DOJ). The use of the word "Penology” for the DILG-run
facility is not accurate
24
http://news.bbc.co.uk/2/hi/health/1958270.stm[accessed on July 19,2013.-Ed.].
25
Article 124, Revised Penal Code of the Philippines.
because, to repeat, the facility is mainly for pre-trial prisoners who

are not yet “penalized,” and the only convicts supposed to stay in
those facilities are those with minor sentences which may fall anyway
under the Probation Law.
The temporary incarceration of pre-trial prisoners not being
considered penalty, and still possessing the right to be presumed
innocent at this stage, they may continue to exercise other political
rights, such as the right to suffrage. It is incorrect to deprive a
pre-trial prisoner of personal belongings that are necessary for his
personal comfort if these do not compromise the security and safety
in the detention facility. He is not yet being punished, unlike a
convicted prisoner. Therefore, unless security is an issue, pre-trial
prisoners who can provide themselves with their own blankets and
pillows or such reasonable, no-frills basic personal necessities, should
not be denied such and be condemned to suffer the miserable,
sometimes inhuman conditions of prison just because their
government cannot give them decent accommodation. 51 s
That is not to say that convicted prisoners are doomed to rot in
decrepit jails either. Article 10(1) which speaks of humane
treatment and respect applies to “all persons deprived of their liberty.”
There may be a difference in the treatment and rehabilitation
program of these prisoners from pre-trial prisoners because there is
now a penal nature and punitive objective to the incarceration.
c) Right against slavery

Article 4 of UDHR and Article 8 of ICCPR provide that “slavery
and the slave trade shall be prohibited in all their forms.” It is not necessary
that' there be an “owner-chattel” relationship between the
perpetrator and the victim, as was in the past. Under the old
concept, ; slaves were considered property which makes up a
person’s wealth. They were not considered “persons,” and therefore
could not acquire a citizenship. The modem forms of slavery may
not exactly be of the same type. In human trafficking which is
known as “modem day slavery,” the important factor is
exploitation. Today’s trafficked persons may have some degree of
freedom and choice, and may have \ even initially sought out or
voluntarily agreed to be recruited. They may even have paid their
way into the recruitment process. When these persons start to get
exploited, whether for debt bondage,
CHAPTER V 47
sexual commercialism, organ trafficking and similar purposes, there

is human trafficking victimization.
The right against slavery is jus cogens, a higher level human
right. States cannot validly enter into a treaty to the contrary. The jus
cogens right against slavery includes "all forms” of slavery, such as
human trafficking.
ICCPR’s Article 8 states that the term "forced or compulsory
labour” shall not include work or service required of a prisoner, or of a
military nature, or which forms part of normal civil obligations, or
necessary during calamities. It does not preclude the performance of
hard labour as part of a penalty for a crime.
The pertinent Philippine laws on slavery and other forms of
slavery are Articles 272, 273 and 274 of the Revised Penal Code,
Republic Act 9231 on the Elimination of Worst Forms of Child Labor,
Republic Act 9775 against Child Pornography, and Republic Act 9208
against Trafficking in Persons.
Trafficking in persons
The applicable treaty on human trafficking is the Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, also known as the Palermo Protocol. This
treaty is one of three (3) "daughter” treaties of the United Nations
Convention on Transnational Organized Crime, also known as the
Palermo Convention.
As a form of slavery, human trafficking is a crime against
humanity when committed as part of a widespread or systemic
attack.26 The Rome Statute of the International Criminal Court
specifically includes trafficking in persons in the enumeration of acts
constituting crimes against humanity.
Many human rights scholars believe that crimes' against
humanity should be covered under the "universal jurisdiction”
scheme in the same way that Piracy on the high seas is so covered and
pirates are treated as hostis humani generis, regardless of the
territorial jurisdiction of the forum State or membership to
“Article 7, Rome Statute of the International Criminal Court.

48 INTERNATIONAL AND PHILIPPINE HUMAN RIGHT# LAW#
the International Criminal Court (ICC) of the pirates’ country. This makes a
lot of legal sense because human trafficking is a crime oftentimes committed
across borders. One of the essential elements of this crime is “exploitation,”
an element which may not be discoverable at the place of origin, and is
consummated only at the place of destination. Different places have
different laws and different penalties and different procedures, and
prosecution in one State may be easier compared to another. If human
trafficking is a jus cogens crime, then all States shall have the erga omnes
obligation to prosecute or cooperate in the successful prosecution of this
case, place of commission and territorial jurisdiction notwithstanding.
In terms of domestic legislation, the Philippine law against human
trafficking is the first in Southeast Asia and is probably one of the best in
the world. Republic Act 9208 (RA 9208) is thorough and treaty-compliant,
and its implementing rules are well-defined and widely participated in by
multiple agencies and stakeholders. Many arrests and successful
prosecutions were accomplished under RA 9208, but it is believed that this
is just a tip of the iceberg.
While the network of anti-human trafficking forces has been
successful domestically, human trafficking involving Filipino overseas
workers, has yet to be sufficiently addressed. There had been incidents of
trafficking of Filipinos in many countries including Malaysia, the Middle
East and the United States. In some cases, arrests and prosecutions were
made resulting in convictions; in others, legal action is either wanting or
less successful.
In one case in Florida, around 50 Filipinos under the Guest Worker
Program with H2B visas were exploited and were fortunately rescued by the
Florida Coalition Against Human Trafficking (FCAHT) and the Philippine
Consulate in Florida, but the prosecution was for visa fraud rather than for
human trafficking. The victims claimed that they did not receive much help
from the Philippine government.
Unlike Republic Act 9775, the law against child pornography, RA
9208 does not contain an express provision declaring human trafficking as a
transnational crime. It does not also provide for extraterritorial application,
unlike Article 2 of the Revised Penal Code. As modern-day “slavery” which
is likely to evolve into a crime against humanity, human trafficking could be
a jus cogens crime.
CHAPTER V 49
The perception of this author is that RA 9208 would afford more protection
to its citizens if it were to apply extraterritorially. The strongest argument
in favor of this is that roughly ten percent (10%) of Filipinos live and/or
work abroad, and many Overseas Filipino Workers (OFW5s) have been
trafficked abroad.
In a case in Wan Chai, Hong Kong,27 two (2) Filipinos were convicted
for human trafficking and penalized for a maximum jail term of three (3)
years. Seven (7) others who were arrested were deported back to the
Philippines. Even if these seven (7) others were less guilty than the two (2),
there is a possibility that they would serve a higher penalty than those who
were convicted in the Hong Kong court if they are charged under
Philippine law.
One very controversial case28 which would have sprung a
jurisdictional impasse, the veracity of which had not been determined, is one
involving Filipinos who were allegedly deceived and kidnapped from Kuwait
to the green zone in Iraq allegedly by a government contractor who was
working on a construction of an embassy building, and which triggered a
Congressional Hearing at the Capitol Hill where a certain Rory Mayberry
testified. Mayberry’s claims were, however, later disputed. Had this case
developed, this would have definitely been a diplomatic nightmare as the
Philippines has no diplomatic relations with Iraq and deployment of Filipino
workers to that country is prohibited. On the other hand, the embassy
building in Iraq is within US jurisdiction. The likelihood is that the victims
would be deported back to the Philippines. In this event, an extraterritorial
RA 9208 would likely address the situation.
The Philippines was in Tier 2 Watch List for a couple of
years before it was elevated to the Tier 2 Status. It must be noted
that this ranking is not a United Nations ranking but rather is
based on the Trafficking Victims Protection Act (TVPA), a United
States federal law. Under this law, states are monitored and
ranked based on their efforts at curbing human trafficking.
In line with its commitment to promote a world free from
human trafficking, the United States grants financial assistance
”http://www.abs-cbnnews.com/pinoy-migration/03/19/10/hk-court-sentence-2-pinoys-human-
trafficking [accesedon July 19,2013. -Ed.].
2B
http://www.nytimes.com/2007/08/03/world/africa/03iht-phils.l.6973359.html?-r=l[accesed on July
19,2013.-Ed.].
50
to States that make conscientious efforts to eradicate or minimize j human

trafficking. Colombia, which does not have a dedicated unit | for domestic
trafficking cases29 unlike the Philippines, but whose 1 transnational efforts are
maintained, is in Tier 1. This means 1 that Colombia has complied with the
minimum standards. Also, I Colombia’s definition of trafficking does not include the
element of 1 force, fraud, or coercion,30 whereas the Philippine definition is more 1
treaty-compliant. 1
d) Right against torture 1

Article 5 of UDHR and Article 7 of ICCPR state that, “No 9
one shall be subjected to torture or to cruel, inhuman or degrading j
treatment or punishment” Pursuant to these articles, the Convention 1
Against Torture, Cruel, Inhuman and Degrading Punishment ]
(CAT) was subsequently adopted.
Torture means "any act by which severe pain or suffering, /I
whether physical or mental, is intentionally inflicted on a person for - J
such purposes as obtaining from him or a third person information ]
or a confession, punishing him for an act he or a third person has
Y
committed or is suspected of having committed, or intimidating
or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted
by or at the instigation of or with the consent or acquiescence of
a public official or other person acting in an official capacity. It
does not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions.”
Aside from torture, acts constituting cruel, inhuman or
degrading treatment or punishment are also prohibited. There are
acts which do not fall under the definition of torture and may not
even involve any physical pain or suffering, but are outrageously
inhuman or insulting. For instance, the act of a lady soldier named
Lyndie England in making Iraqi prisoners in Abu Ghraib undress
and tying them with a leash like dogs31 may not fall under the term
"torture,” but these acts are degrading, inhuman, and a supreme
insult to male Muslims.
a®2011 Trafficking In Persons Report-Colombia, available at http://www.unhcr.org/refworld/coun

try„USDOS„COL„4el2ee8a9,0.html [accesed on July 19, 2013.-Ed.).
*°lbld.
*1http://www.antiwar.com/news/?articleid=8560[accesed on July 19,2013. - Ed.).
CHAPTER V 51
The right against torture is non-derogable. States

cannot
I derogate from it even in times of war or emergency. No
torture
I is justified, and States may not enter into treaties providing
I otherwise, as the right against torture is also considered jus
1 , cogens.
I Section 12(2) of the Philippine Constitution prohibits the use of
I torture upon any person under investigation for the commission of
an offense. In compliance with Article 4 of the Convention requiring
States to “ensure that all acts of torture are offences under its
criminal law,” the Philippines passed Republic Act 9745, otherwise
known as the “Anti-Torture Act of2009”
e) Right to equal protection

Article 7 of UDHR provides equal protection of the law without
any discrimination. This is mirrored in Article 26 of ICCPR, which
L further provides that “the law shall prohibit any discrimination
t and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status
Equal protection does not mean that each and every person shall
be treated in the same manner at all times, regardless of differences of
class and circumstance. Reasonable classification is allowed. For
example, in criminal law, minors are either exempt from criminal
liability or only incur mitigated liability when acting with
discernment, as the minority diminishes the knowledge and
voluntariness of the offender in the execution of a crime. Women are
also accorded more relief under statutes on domestic violence by
reason of age-old societal and cultural prejudices. In labor law, bias in
favor of labor in the interpretation of laws, rules and evidence is
permitted.
The Philippine Supreme Court laid down the following
requisites for reasonable classification:
(1) It real
mustdifferences;
be based on substantial distinctions which make
(2) It must be germane to the purpose of the law;

(3) It must not be limited to existing conditions only;

(4) It must apply equally to each member of the class.32
f)Right to effective judicial remedy

Article 8 of UDHR provides that, “Everyone has the right to an
effective remedy by the competent national tribunals for acts violating
the fundamental rights granted him by the constitution or by law .”
Article 2, No. 3 of ICCPR exhorts States Parties to the Covenant to:
a) “ensure that any person whose rights or freedoms as herein

recognized are violated shall have an effective remedy—
j
b) “ensure that any person claiming such a remedy shall have his
right thereto determined by competent judicial,
administrative or legislative authorities, or by any other
competent authority provided for by the legal system of the
State”; and
c) “ensure that the competent authorities shall enforce such
remedies when granted”
Both articles do not just require States to have in place a “judicial
remedy,” but also emphasize that it must be “effective.” And a judicial
remedy is not necessarily effective just because the rules sound
highfalutin or the remedy is dispensed by authorities with impressive
credentials. More importantly it must be just, accessible, free from
corruption and influence-brokering, and speedy but with quality. Speed
without quality is nothing but haste and shortcuts borne out of laziness or
insensitiveness.
A judicial remedy must be anchored on the principles of justice 1] and

due process. It must be free of bias and must solely be based on the evidence
presented. The proceeding must give equal opportunity J for the parties to
prove their cause. The three (3) most dangerous \ enemies of fairness
are corruption, ignorance, and arrogance. J Each one is lethal by
itself, and a combination of the three (3) could ] result in a complete
breakdown of the people’s trust.
32People vs. Cayat, G.R. No. L-45987, May 5,1939.

CHAPTER V
m
Access to justice
Section 11 of Article 3 of the Philippine Constitution provides I that,
“ Free access to the courts and adequate legal assistance f not be denied to any
person by reason of poverty.”
The term “access to justice” is commonly understood as the
availability of legal assistance to the poor. The programs closely
associated with access to justice are the legal aid programs and pro bono
services rendered by lawyers, NGOs, law firms and lawyer's associations.
In the Philippines, the creation of the Public Attorney's Office

(PAO) and the establishment of the Department of Justice Action Center
(DOJAC) are sterling examples of the government's effort to achieve a
more accessible judicial system. These institutions bn ye been widely
successful for having reached out to the poor litigants even in remote
areas, providing legal services to the common masses with their pool of
talented, hardworking, oftentimes idealistic young lawyers.
In its broad sense, access to justice does not only refer to
government-paid legal assistance; it also includes availability of
information on where and how to get legal assistance, uncomplicated legal
procedures and laws that promote the faith in the judicial system. To be
accessible, the process must be inexpensive, the information, offices and
courts must be within reach, and the procedure must be simple. The trend
now is to make the language in pleadings and motions simpler in order
that the litigants understand and be informed of their case. In many
courts in the National Capital Region, Tagalog is extensively used during
hearings.
Access to justice is not always that easy in the real world, There are
still laws and rules that are out of touch with reality, or unmindful of
geography that the country is composed of more than seven thousand
islands, not just a few cities. For example, Article 125 of the Revised
Penal Code requiring the filing of criminal eases in court within a
specified number of hours may be impossible in places where there are no
courts or prosecutors’ offices in the place of commission of the crime. In
islets where availability of transportation is dependent on the weather, it
is either the arresting policemen will run the risk of being sued by the
prisoner for violation of Article 125, or sued by the victim for not detaining
the suspect.
54
The problem is compounded by the fact that crime laboratories, medical

professionals and other offices that need to issue certifications before a case can
be filed in court or prosecutors’ offices are either far from where some courts are
located or do not have enough personnel to attend to litigants. The repeal (in
2005) of the rule on the preliminary examination by the nearest Municipal Trial
Court judge for the purpose of issuance of the warrant of arrest before the
Information can be filed with the proper court has the effect of further
alienating the victims of crimes from access to swift judicial recourse.
As a result, in many instances, law enforcers would not implement an
arrest under Rule 113, Section 5 of the Rules of Court if there is a lot of
paperwork to be done. Chances are, they would prefer to file the charges under
the regular preliminary investigation where the respondent does not have to be
arrested immediately. This way, they can bide time to gather all the
documentary evidence and certifications needed for the filing of the case,
ensuring a better chance at conviction. The downside is that the suspect would
remain at large and a security risk. Still, this is probably better than a
frustrated litigant deciding to take the law into his hands and resorting to
vigilante justice. In fact, in some parts of the country, difficulty in accessing
meaningful justice could be one of the factors for a decayed peace and order
situation and a seeming culture of violence.
When access to justice is difficult to obtain, persons aggrieved by crimes
may lose their faith in the justice system. When a law or rule is not realistic,
victims may not think that there is protection that can be expected under that
law. The law or rule would be seen as a barrier rather than a tool for obtaining
justice. Law enforcers may not be encouraged to catch criminals, or may resort
to shortcuts. This erosion of faith in the justice system could result in the
breakdown of the Rule of Law.
Judicial writs
In the Philippines, there are remedies and writs that may be availed of by
human rights victims. Among them are:
1. Writ of Habeas Corpus — A writ issued by a judge directed to the
person detaining another, commanding
CHAPTERV 55
him to produce the body of a prisoner at a

designated time and place.
Section 1, Rule 102 of The Rules of Court of the
Philippines provides for the scope of its application,
thus: “ as
otherwise expressly provided by law, the writ of habeas corpus
shall extend to all cases of illegal confinement or illegal
detention by which any person is deprived of his liberty, or by
which the rightful custody of any person is withheld from the
person entitled thereto”
Perhaps to avoid the repetition of a mistake
committed in the not-so-distant past, the Philippine
Constitution, in Section 15, Article III, provides that,
“The privilege of the Writ of Habeas Corpusshall not be
suspended except in cases of invasion or rebellion
when the public safety requires it.” The privilege of
the writ cannot be suspended on the ground of an
“imminent danger” of invasion, insurrection, or
rebellion.
2. Writ of Amparo
The Supreme Court en bancissued Administrative
Matter No. 07-9-12-SC entitled, “The Rule On The
Writ Of Amparo,”which took effect on October 24,
2007.
“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
3.. Writ of Habeas Data
“The Rule on The Writ of Habeas Data”33took effect on
February 2, 2008.
“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 by an unlawful act or omission of a public official or
employee, or of a private individual 'or
’A.M. No.08-l-16-SC.
entity engaged in the gathering, collecting or storing of

data or information regarding the person, family, home
and correspondence of the aggrieved party
The right of the people to privacy and security in
their
persons, houses, papers and effects is guaranteed
under Section
2, Article III of the Philippine Constitution. No
unreasonable
searches and seizures shall be made, but the courts
may order
a search if legally warranted.
Law enforcers may validly secure a search warrant from
a judge by strictly observing the provisions of Rule 126 of
the Revised Rules of Court in order to conduct searches and
seizures.
In case of an unlawful search or threat against the privacy
of a person, among the remedies available to the aggrieved
party are:
(a) The writ of habeas data, which can be availed of even if
the violator is a private person or entity;
(b) Criminal prosecution for Violation of Domicile or trespass;
(c) Indemnity arising from civil action; and
(d) Administrative sanctions to the offender.
In addition, the articles seized by reason of the unlawful
search by public officials shall be inadmissible in evidence.
g) Right to be presumed innocent

Article 11 of UDHR provides that, “Everyone charged with |
a penal offence has the right to be presumed innocent until proved j
guilty according to law in a public trial at which he has had all \
the guarantees necessary for his defence” Article 14 of ICCPR also j
contains a similar provision, and adds the enumeration of rights of jj
an accused:
1) To be informed of the nature and cause of the charges;
2)
3) To be given time and facilities to prepare his defense and 1
to communicate with counsel of his own choosing;
To be tried without delay;
CHAPTER V 57
4) To be tried in his presence, and defend himself in person or

through his counsel;
5) To examine the witness against him and obtain the witnesses
on his behalf;
6) To have free assistance of an interpreter; and
7) Not to be compelled to be a witness against himself.
This provision is similar to the guarantees under the Bill of Rights in
the Philippine Constitution on presumption of innocence and procedural
due process.34
Article 14, No. 2 of the Philippine Constitution states that, “In all
criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved^ and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the witnesses face
to face, and to have compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf. However, after arraignment,
trial may proceed notwithstanding the absence of the accused: Provided,
That he has been duly notified and his failure to appear is unjustifiable.”
Although these rights are substantive and not merely procedural in
nature, the Supreme Court reiterated them in Rule 115 of the Rules on
Criminal Procedure, to wit:
“(a) To be presumed innocent until the contrary is proved beyond
reasonable doubt.
(b) To be informed of the nature and cause of the accusation
against him.
(c) To be present and defend in person and by counsel at every
stage of the proceedings, from arraignment to promulgation of
the judgment. The accused may, however, waive his presence at
the trial pursuant to the stipulations set forth in his bail, unless
his presence is specifically ordered by the court for purposes of
identification. The absence of the
MRodolfo Beltran vs. Secretary of Health, G.R. Nos. 133640, 133661 and 139147, November
25,2005.
58
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAW*
accused without justifiable cause at the trial of which he had

notice shall be considered a waiver of his right to be present
thereat. When an accused under custody escapes, he shall be
deemed to have waived his right to be present on all
subsequent trial dates until custody over him ig regained.
Upon motion, the accused may be allowed to defend himself in
person when it sufficiently appears to the court that he can
properly protect his rights without the assistance of counsel.
(d) To testify as a witness in his own behalf but subject to
cross-examination on matters covered by direct examination.
His silence shall not in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against:
himself.
(f) To confront and cross-examine the witnesses against him | at
the trial. Either party may utilize as part of its evidence ' the
testimony of a witness who is deceased, out of or cannot j|
with due diligence be found in the Philippines, unavailable, |
or otherwise unable to testify, given in another case or |
proceeding, judicial or administrative, involving the same jj
parties and subject matter, the adverse party having the |
opportunity to cross-examine him.
(g) To have compulsory process issued to secure the t attendance
of witnesses and production of other evidence f in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner prescribed 1
by law.”
It must be emphasized that these are rights of persons accused 1 for
crimes that are already filed in court. Persons arrested for offenses a but
without cases filed against them in court, and respondents to ® criminal
complaints lodged before prosecutors’ offices, cannot yet® claim the same
rights.;
Arrested suspects are entitled to the Miranda warning and the
protection under Republic Act 7438, while those undergoing j Preliminary
Investigation are entitled to their rights under Rule .1 112 of the Rules of
Court. Thus, a respondent may not insist OD j
CHATTER V 59
the right to remain silent during preliminary investigation when he is

subpoenaed to submit his counter-affidavit, as that would be prejudicial
to him. His failure to submit evidence in his favor would be construed as a
waiver to present his evidence. In preliminary investigations, it is
sufficient that the respondent is afforded the opportunity to submit his
evidence. The investigation may proceed without such evidence, and
without a clarificatory hearing having been conducted first. As a matter
of fact, in crimes with penalties of four (4) years and two (2) months of
imprisonment or less, the charges may be filed directly in court without
giving the respondent any opportunity at all to refute the charges.
A person charged for the commission of a crime shall retain his
civil, political and other human rights. He is entitled to vote and be voted
for, as in the case of a few public officials. His freedom of movement may
however be curtailed, such as when he is not granted bail and has to be
ordered detained to ensure that he faces trial, or when a Hold Departure
Order (HDO) is issued against him. These orders are not penal sanctions,
but are measures imposed in order not to frustrate the ends of justice.
Apropos the right to be presumed innocent, Article 10 of ICCPR
provides that a prisoner who is not yet convicted (where no bail is
recommended for the crime charged or if there be any, that he was not
able to post one) “shall, save in exceptional circumstances, be segregated
from convicted persons and shall be subject to separate treatment
appropriate to their status as unconvicted persons”
h) Right against ex post facto law and bill of

attainder
The second paragraph of Article 11 of UDHR provides that, “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 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 the time the penal
offence was committed!’ Article 15 of ICCPR contains a similar provision.
The Latin maxim, “Nullum crimen, nulla poena sine praevia lege
poenali” (No crime, no punishment without a previous penal law)
encapsulates this provision, which treats of a law:
60
<1) That holds a person liable for an act or omission that was
not punished at the time of commission;
(2) That imposes a penalty heavier than the one that was
applicable at the time of commission.
Section 22, Article III of the Philippine Constitution
provides that, uNo ex post facto law or bill of attainder
shall be enacted”
i) Right to privacy
Article 12 of UDHR provides that, “No one shall be subjected j to
arbitrary interference with his privacy, family, home or J
correspondence, nor to attacks upon his honour^ and reputation. M
Everyone has the right to the protection of the law against such |
interference or attacks ” This is almost identical with Article 17 of 1 the
International Convention on Civil and Political Rights (ICCPR). a
The Philippine Constitution provides in Article III that:
“Section 2. The right of the people to be secure in their persons, a
houses, papers, and effects against unreasonable searches a and
seizures of whatever nature and for any purpose shall be H inviolable,
and no search warrant or warrant of arrest shall j9 issue except upon
probable cause to be determined personally 1 by the judge after
examination under oath or affirmation of 1 the complainant and the
witnesses he may produce Band I particularly describing the place to be
searched and the persons 1 or things to be seized.
Section 3. The privacy of communication and correspondence I shall be
inviolable except upon lawful order of the court, or 1 when public safety
or order requires otherwise, as prescribed I by law.
Any evidence obtained in violation of this or the preceding 1 section
shall be inadmissible for any purpose in any proceeding.” I
The Anti-Wiretapping Law of the Philippines disallows evidence

gathered from violation of privacy and punishes the offender. The
Secrecy of Bank Deposits Law also protects undue intrusion into the
bank information of a person. However the Anti-Money Laundering Act
(AMLA) allows the inquiry into the.
CHAPTER V 61
financial information of a person when there is an allegation of the

commission of “predicateoffenses.” In the case of the a public official, the
Code of Conduct requires that he divulge his financial information in his
Statement of Assets and Liabilities (SALN).
In August 2012, the Philippines passed the Privacy Data Protection
Act,35 in order to penalize those who pass confidential information of
persons gathered in the course of their transactions.
A couple of months later, the Cybercrime bill was passed into law, albeit
with opposition so determined that almost immediately after its signing
into law, government websites were hacked. The Supreme Court
promptly issued a restraining order while the case questioning the law’s
constitutionality was pending.
j) Freedom of movement
Article 13 of the Universal Declaration of Human Rights (UDHR)
provides for the “right to freedom of movement and residence within the
borders of each State. Everyone has the right to leave any country,
including his own, and to return to his country.” A similar provision is
found in Article 12 of ICCPR.
The freedoms of movement, abode and travel are guaranteed under
the Philippine Bill of Rights, but this guarantee allows of exceptions:
these freedoms may be curtailed or restricted upon lawful order of the
court, or in the interest of national security, public safety or public
health.
Section 6, Article III of the Philippine Constitution provides that, “
The liberty of abode and of changing the same within the 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 interest of national
security, public safety, or public health, as may be provided by law.”
In the case of Marcos,et al. vs.Manglapus, et .,36 which
the/
Supreme Court called “unique” and “should not create a precedent, for the
case of a dictator forced out of office and into exile after causing twenty
years of political, economic and social havoc in
“RA10173.
“G.R. NO. 88211, September 15,1989 and October 27,1989.
62
INTERNATIONAL AND PHILIPPINE HUftLAN RIGHTS LAWS
the country and who within the short space of three years seeks to return, is a
class by itselfthe Supreme Court ruled that then President Corazon Aquino
acted well within her powers when she refused the petitioners’ return to the
country.
k) Right to seek asylum

Article 14 of UDHR states that, “Everyone has the right to seek and enjoy
in other countries asylum from persecution. This right may not be invoked in the
case of prosecutions genuinely arising from non- i political crimes or from acts
contrary to the purposes and principles of the United Nations ”
The terms “non-refoulement ” “extradition,” and “deportation” are used
when referring to the sending of a person to a country, f which could be his own
or not. Briefly, their distinctions are:
a) Non-refoulement for political offenders and refugees:
For political offenses, asylum may validly be sought in other
countries by persons facing political persecutions in their own
country, or by refugees. The State having the obligation to grant
the asylum cannot return (“refouler”) the asylum-seeker to his
State of origin where he is in peril of persecution, rejection,
torture, or cruel treatment.37
In Quebec, Canada, persecuted homosexuals have been granted
asylum even if, strictly speaking, the persecution is not by
reason of any political ideologies or offenses. A new term has also
emerged by reason of environmental threats to States and
peoples, i.e., the “environmental refugees.”
b) Extradition for criminal offenses:
For criminal offenses, an accused can validly be
returned to the State having criminal jurisdiction over | the case,
through extradition, for criminal prosecution or
37
Basic Training Manual on Investigating and Prosecuting the Smuggling of Migrants, UN0DC
(http://www.unodc.org/documents/human-trafficking/Basic-Training-Manual-ebook-E-Module'
9-1054402-June-2010.pdf) [accesed in July 10,2013.-Ed.].
CHAPTER V 63
sentencing. This may be the subject of an agreement or treaty

between the States involved. However, extradition cannot be
validly exercised when it is a means to refoule refugees or
persons accused of political offenses.
c) Deportation for immigration offenses:
For immigration offenses, an offender may be validly returned
to his State of origin if he is not authorized to be in the receiving
country under its immigration laws.
But if the deportation will result in a refoulement whereby a
person will be returned to a State where he faces persecution or
torture, such deportation would violate International Human
Rights Law. ,
1) Right to a nationality;
Article 15 UDHR declares that, “Everyone has a right to a nationality
”
As much as possible, the status of statelessness must be avoided from
happening. Essentially, Article 15 would involve two (2) things: the
acquisition and the change of nationality.
Citizenship 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 (the mode of
acquisition in the Philippines);
b) Jus soli (by place) — The child is a citizen of the place where he
was born (mode of acquisition in the US);
c) Naturalization — A foreigner is granted citizenship by another
country through a legal act. In the Philippines, such legal act
could be a decree by a tribunal or quasijudicial tribunal. Under
exceptional circumstances, citizenship could be granted by law
or by presidential proclamation.
A child of a Filipino citizen is considered a Filipino regardless of
his place of birth. Under Article 4, Section 1 of the Philippine
Constitution, it is not necessary that both parents be Filipinos; what
64
INTERNATIONAL AND PHILIPPINE HUMAN RIGHT# LAW#
is required is that one of them be Filipino. Consequently, a child of a

Filipino parent will always have a nationality, unless ho repudiates it by a
legal act. On the other hand, a child of American citizens who is born in the
Philippines will have a citizenship problem once he reaches the age of
majority. During his minority, he is deemed to have the same citizenship
as his parents.
The right to change a nationality is not absolute: it is subject to the
requirements and limitations of the requested State.
“Stateless children" in Sabah, Malaysia

Reports have it that there are many children of Filipino parents who
roam the streets of Sabah, Malaysia without any apparent nationality
documents or birth registration. Some of them were born in Malaysia of
Filipino parents who have died or had been deported or otherwise returned
to the Philippines and left them abroad.
While they are legally citizens of the Philippines under the
Philippine Constitution, their lack of documents makes it a challenge to
determine their citizenship. Since Malaysia does not adopt the jus soli
principle, they could not be considered Malaysian citizens either. These
circumstances give them the appearance of “statelessness,” which in turn
results in their not being able to get the protection and benefits from either
country. These children are unable to go to public schools or avail of public
health care.
m) Right to marry and found a family

Article 16 of UDHR declares that “men and women of full age . . .
have the right to marry and to found a family. . . .” It further states that,
“Marriage shall be entered into only with the free and full consent of the
intending spouses ” Article 23 of ICCPR contain a similar provision, and
further recognizes the family as “the natural and fundamental group
unit of society and is entitled to protection by society and the State ”
Article 10 of ICESCR reiterates the declaration and provides for special
protection for mothers and children.
The Philippine Constitution has an entire article (with four [4]
sections) on the family. Section 1 thereof provides that the State
recognizes the Filipino family as the foundation of the nation. Section 2
of Article XV provides that, “Marriage, as an inviolable social
CHAPTERV 65
institution, is the foundation of the family and shall be protected by the

State."
Marriage is not an ordinary contract between parties. It is a social
institution which enjoys the protection of the State and whence legal
rights and obligations spring. Any doubt on the marriage should be
resolved in favor of its validity.38
The internationally accepted age of marriage is 18 years old. In the
Philippines, the Family Code requires that both parties be at least 18
years old to be able to legally contract marriage. However, in places
where the Shari’ah Law applies, the age is lower.
While the right to found a family is guaranteed, there is still the
controversial issue as to the extent that married couples adopt methods
to effectively plan the size of their family. Some groups are espousing the
belief that human rights apply only to children already born, while the
Holy See believes that human rights apply even to the unborn: The 1987
Philippine Constitution provides that the life of the unborn must also be
protected.
There is also the issue of marriage between the same sexes, and of
adoption by same-sex couples. A few countries in Europe have legalized
same-sex marriages, such as Spain, Sweden, Belgium, Iceland,
Netherlands, Norway, Portugal, and Denmark. There are countries that
do not have laws allowing such marriage but which recognize property
rights of couples in same-sex relationships. A great majority of the States
still refuses to bring this issue to the table.
n) Right to property
Article 17 of UDHR declares that, “Everyone has the right to own
property alone as well as in association with others. No one shall be
arbitrarily deprived of his property.” One of the features of a
democratic society is the right to ownership of property, including real
property. This is not particularly true under certain forms of
government, where real property are owned by the State, or owned by
the ruling class.
38
Malcampo-Sin vs. Sin, G.R. No. 137590, March 26, 2001.
In t-he Philippine Constitution, Soction 9 of Article 3 states that,

“ P r i v a t e property shall not he taken for public use without just
compensation.* While private ownership is recognized and protected,
privately-owned property may be taken for public use under the States
power on Eminent Domain, or even destroyed under the State’s exercise of
Police Power, in order to protect public health, safety, order, and morals.
o) Freedom of thought, conscience and

religion
Article 18 of UDHR states that, “Everyone has the right to freedom of
thought, conscience and religion; this right includes freedom to change his
religion or belief and freedom-either alone or in community with others and
in public or private, to manifest his religion or belief in teaching, practice,
worship and observance.” A similar provision is found in Article 18 of
ICCPR.
Ideally, a person’s thoughts and beliefs are outside the sphere of
State regulation. A person may believe in a divine being, may have a
religion, may change a religion, or may not have a religion at all. Whatever
it is that he believes or does not believe in, is not for the State to influence,
interfere, or manipulate. Section 6, Article II of the Philippine Constitution
states that, “The separation of Church and State shall be inviolable.”
When the Philippines was ruled by Spain, the Gelasian Doctrine on
the joint rule by Church and State was observed in most parts of the
country. The Roman Catholic Church was involved in running the affairs of
government, and in many aspects it had control on the lives of the people.
To this day, many Filipinos still revere the Church’s commands and make
decisions based on the Church’s teachings. Even in the enactment of laws,
lawmakers still take into consideration the opinions of the Roman Catholic
Church.
There are still many states that have official religions, one of which is
Iran. The Constitution of Iran specifies its religion, and its domestic laws
are based on SharVah Law. There are also other states which, although
they have dominant religions, they maintained a secular government, the
examples being Turkey and the Philippines, where Islam and Catholic,
respectively, are the dominant religions.
CHAPTER V 67
The right to thought, conscience, and religion which is

guaranteed by Human Rights Law refers to the internal
intellectual process. The guarantee does not extend to
external manifestations in the exercise of a religion or belief,
which could be regulated by the State. The Free Exercise
Clause contained in the Philippine Constitution should not be
regarded as a license to go against criminal laws, public
morals or public policy. For example, the use of a dangerous
drug or violence, even if intended for worship purposes, is
still a crime.
p) Freedom to practice or manifest
religious beliefs
Can the sale of bibles and religious leaflets be taxed? In
the case of American Bible Society vs. City of Manila,39the Philippine
Supreme Court ruled that requiring a Mayor’s permit as a
prerequisite for the sale ofbibles amounts to “religious censorship
and restrained the free exercise and enjoyment of religious profession”
The ruling should not be taken to mean, however, that
“religious groups are free from the financial burdens of
government.” The Supreme Court had the occasion to make
distinctions in the case of Tolentino vs. Secretary of
Finance.*0Citing the American Bible case, it ruled that:
(a) Sales tax may be imposed for the sale of religious
materials;
(b) License fees/Mavor’s permits for the sale of religious
materials cannot be imposed on religious
organizations because it is tantamount to imposing a
condition for the exercise of the organization’s right;
(c) Registration fees (on EVAT) may be validly collected
because they are not imposed for the exercise of a
privilege but only for the purpose of defraying part of
the cost of registration.
The case ofSahin vs. Turkey, No. 44774/98, EC+HR, November
10,2005
In the Philippines where the government is more tolerant on
the exercise of religious beliefs of citizens, where even religious
activities
3
9
G
.
R
.
(such as the Sinulog, Holy Week, culmination of Ramadan) are given

government support and recognized as legal holidays, we may find it
interesting to learn about how human rights cases on the exercise of
religious beliefs are decided in other countries. A case in point is the
case of Sahin vs. Turkey, a country which is a member of the European
Union (although geographically part of Turkey is in Asia), and which is
predominantly Muslim. The European Court is viewed as the most
developed human rights court in the planet, but their decision on this
case (almost unanimous) may surprise us a bit.
Ms. Leyla Sahin was a Muslim student of Medicine in Istanbul
University, a government-owned university. She wears a headscarf as
a manifestation of her religious belief, a practice which was allowed by
her school for many years. When she was already on her 5th year, the
university passed a circular that students wearing headscarves or
beards would be refused admission to lectures and courses. Refusing
to give up her scarf, Ms. Sahin was not allowed to take her exams, and
later on was suspended for joining a group of students contesting the
circular, and was refused to enroll on a course.
She decided to go abroad in order to finish her studies in Vienna.
She brought a case before the European Court on Human Rights,
basically arguing her right to freedom in the exercise of religious
beliefs, and her right to education which cannot be discriminated by
reason of religious beliefs.
The Court decided against her, and made a reference to the ruling of
the Constitutional Court of Turkey that, “freedom of dress in institutions
of higher education was not absolute. The Constitutional Court had held
that authorising students to 1cover I the neck and hair with a veil or
headscarf for reasons of religious \ conviction9 in the universities was
contrary to the Constitution. That \ decision of the Constitutional Court,
which was both binding and accessible, as it had been published in the
Official Gazette of 31 July 1991, supplemented the letter of transitional
section 17 and f followed the Constitutional Courts previous caselaw. In
addition, | the Supreme Administrative Court had by then consistently
held for | a number of years that wearing the Islamic headscarf at
university \ was not compatible with the fundamental principles of the
Republic. |
CHAPTERV m
THE INTERNATIONAL RILL OF RIGHTS
Furthermore, regulations on wearing the Islamic headscarf had existed

at Istanbul University since 1994 at the latest, well before the applicant
enrolled there”
The Court held that the ban on the wearing of religious symbols
in universities was based on secularism, separation of Church and
State, pluralism and respect for the rights of others. uThe Constitutional
Court added that freedom to manifest one’s religion could be restricted in
order to defend those values and principles”
The bottom line reasoning of the ruling in this case was respect.
But this reasoning raises more questions than answers. Was it
disrespectful and offensive to wear a particular dress which was not
otherwise obscene, in order to manifest faith? Has the government the
right to ban a person’s wardrobe which is not otherwise morally
offensive just because such dress happens to be worn by members of a
particular religion? Was this a valid exercise of Police Power by the
government? Or was the wearing of the veil a valid exercise of the right
to express a belief?
It seems that the rulings of the Philippine Supreme Court in
cases of a similar texture reveal an attitude of greater acceptance of or
tolerance towards religious practices. Recent government declarations
of holidays show that the government has started recognizing the
practices of religions other than Roman Catholic. In the Philippines,
Christians, Muslims and the Chinese celebrate each other’s religious or
traditional holidays together.
This culture of religious acceptance shows a maturity of Filipinos
towards religious diversity, a culture that is lacking in many countries,
even those which are touted to be more "advanced,” where violence
sometimes erupt due to religious conflicts. Here, we even see Muslim
students wearing veils enrolled in Catholic universities, Something
which would be unthinkable in other countries.
The enactment of a Shariah Law which is applicable to Muslims
in Muslim areas and the establishment of Shariah Courts also show the
government’s respect to the religious traditions of Muslims. There are
questions raised by rights advocates, however on the different standards
that the Philippines is setting, say for instance, on the marrying age of
girls, with these different civil laws, as they may run counter to our
treaty commitments, such as the provisions of the Convention on the
Rights of the Child.
q) Freedom of expression
Article 19 of the Universal Declaration of Human Rights as well as
Article 19 of the International Convention on Civil and Political Rights
(ICCPR) guarantee the freedom of opinion and expression. ICCPR states,
however, that the 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.
Freedom of expression is a fundamental right in every democracy.
However, it is oftentimes abused. It is often lost to some people that the
right, though fundamental, is not absolute. It is subject to restrictions
provided by law. The restrictions may differ from State to State: different
states have different degrees of tolerance and may thus have different
interpretations of how much freedom is within legal limits. Usually,
traditional and religious backgrounds and political climate are factors that
determine the degree of tolerance of a state.
Hence, libel laws may validly be passed to regulate this freedom. In
the case of Chaplinsky vs. State of New Hampshire, 41 the Court said that
certain categories of speech fall outside the bounds of constitutional
protection, such as the lewd and the obscene, the profane, the libelous, and
insulting or fighting words.
In the Philippines, Inciting to Rebellion and Inciting to Sedition are
crimes punished under the Revised Penal Code. In determining whether an
utterance could be considered criminal, the aDangerous Tendency Rule39
may be applied. The application of this test can be tricky, and sometimes
can be uweather-weather lang”41 42 That time was when the leadership was
so paranoid with criticisms that even purely legitimate and constructive
comments were regarded as “subversive,” “communist” and “criminal.”
The issue of morals is another tricky one. While considered
sufficiently educated compared to others in some parts of the world, we
cannot be described as very “liberated” as a people. In many aspects we are
conservative, and this could be due to the deep influence of religion,
wherein morality is often equated with
41315 U.S. 568 (1942).

42A quote attributed to former President Joseph "Estrada" Ejercito.
CHAPTER V 71
religiosity. In one incident, when an artist displayed an artwork featuring a

religious icon with a male genitalia, which according to him was an expression
of his art, the piece was assailed for being immoral and the controversy
sparked so much outrage. The outrage itself drew criticisms because allegedly,
that same outrage was not displayed in other scandals, such as the many
instances of sexual abuses by religious people and violent rituals committed as
religious or cult practice. Critics deem these more immoral compared to the
image of a part of a person’s anatomy being placed where it should not be. It
seems that the society’s gauge of morality has something to do with religious
tolerance or intolerance/
Sometime in September 2010, a secularist dressed up in “Jose Rizal”
costume expressed his disgust at religious meddling with government affairs.
There was nothing libelous about his principal message per se except that he
resorted to name-calling to address his subjects. He claims “freedom of
expression.” The Revised Penal Code, however, contains provisions against the
interruption of a religious ceremony and Article 133 penalizes acts that offend
religious feelings. Aside from libel, there are also laws penalizing oral
defamation, inciting to rebellion and sedition, and the unlawful use of media.
The recent passage of the Cybercrime law sent jitters to bloggers who
fear that the provision on e-libel might be used to stunt freedom of expression.
While there is no debate that freedom of expression is a fundamental right that
is not absolute and may be regulated, among the issues raised against the
constitutionality of the Cybercrime Law was the fact that a single act may be
punished twice (under the Revised Penal Code on Libel as well as under the
Cybercrime Law), and that the Cybercrime law carries with it a higher penalty
than the provision in the Revised Penal Code.
However, we may draw some answers to these questions by looking at
the Firearms Law. It must be remembered that until the famous Ladjaalam
and Agote rulings, the single act of carrying an unlicensed firearm during
election period was prosecuted both under the Firearms Law and the
COMELEC gun ban. The Supreme Court ruling in People vs. Doriquez43 on
what is and what is not Double
43
G.R. NO. L-24444-45, July 29,1968.
Jeopardy remains to this day a good ruling. Further, the difference in

the severity of the penalty for high caliber and low caliber firearm
was never declared unconstitutional.
r) Freedom of assembly and

association
Article 20 of UDHR states that, “Everyone has the right to
freedom of peaceful assembly and association. No one may be
compelled to belong to an associationArticle 21 and 22 of ICCPR
reiterate these rights.
The Philippine Constitution likewise makes these guarantees.
Section 4, Article III states that, “No law shall be passed abridging
the freedom of speech, of expression, or of the press, or the right of the
people peaceably to assemble and petition the government for redress
of grievances” Section 8 of the same article provides that,
“The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes
not contrary to law shall not be abridged”
If the objective of the association is to commit a crime or do
something which is repulsive to public morals, the leaders and
members of the association may be punished under the law. 44 And
even if the participants in an assembly do not belong to an
association, they could be punished for Illegal Assembly under the
Revised Penal Code if the elements thereof are all present, provided
there be an actual meeting.45
s) Right to take part in government

Article 21 of UDHR declares that, “Everyone has the right to
take part in the government of his country, directly or through freely
chosen representatives ... ” Article 25 of ICCPR further guarantees
that every citizen shall have the right and opportunity “to vote and be
elected at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the free
expression of the will of the electors *
‘“Article 147, Revised Penal Code of the

Philippines.
Ârticle 146, ibid.
CHAPTER V 73
The essence of a truly democratic and republican government is

that authority resides in the people and all government authority
emanates from them.46 This authority is exercised through the right to
suffrage, which includes the right to vote and be voted for office, the right
to be consulted on certain issues in a referendum or plebiscite, and the
right to remove or recall a public official from office.
Article 25 of ICCPR emphasizes that elections shall be genuine and
periodic, and suffrage be equal and universal. By “genuine” is meant that
the elections must be free, honest, intelligent, and truly reflective of the
people’s will; by “equal and universal” is meant that all votes must carry
the same weight regardless of the voter’s sex, religion, or status in life.
The right to suffrage is not an absolute right, it is subject to
restrictions. To qualify as a voter, the requirements of age, citizenship,
and residence must be met. To be eligible to run for public office in the
Philippines, one must comply with the literacy requirement, in addition to
being a qualified voter, and not possessing the disqualifications under the
law.
A Filipino citizen who is at least 18 years old can vote. This age
requirement need not be present at the time of registration as a voter, but
must be present on the day of the elections that the voter proposes to vote.
The age requirement varies for candidates to public office.
The residence requirement to qualify one to become a voter does
not simply mean physical presence. In the cases of Romualdez- Marcos vs.
COMELEC47 and Aquino vs. COMELEC48 the Supreme Court interpreted
the term “residence” for election purposes to mean “domicile.” Thus,
Romualdez-Marcos was deemed qualified to run for Congress even if she
was not physically present during the required number of years (i.e., one
[1] year for Congressional candidates) as Leyte was considered her
domicile of origin, to which she intended to return even if physically
absent in the meantime.
4*$ection1, Article II, 1987 Philippine Constitution.

^G.R. No. 119976, September 18,1995.
••G.R. No. 120265, September 18,1995.
It was not until 1933 that the women in the Philippines were ]
allowed to vote, with the enactment of Act 4112, otherwise known as )
Women Suffrage Act. Since then, the Philippines has had exemplary
women in public service. It is one of the few countries in the world that had
two (2) lady presidents, a lady chief justice, a lady international judge, and
several lady senators who are definitely not push-overs in the Senate.
t) Right to social security

Article 22 of the UDHR declares that everyone has the 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.
General Comment No. 19 of the UN Committee on Economic,
Social and Cultural Rights (CESCR) states that social security measures
should cover the following: a) health care, b) sickness, c) old age, d)
unemployment, e) employment injury, f) family and child support, g)
maternity, h) disability, and i) orphans and survivors.
Article 9 of the ICESCR recognizes that the right to social security
includes social insurance. The insurance-based scheme is one where the
contributions are paid for the enjoyment of benefits. The contribution may
be paid by the beneficiary, by his employer, or by government. In the
Philippines, social insurance for privately employed workers is provided by
the Social Security System (SSS) and the payment of the contribution is
shared by the employee and the employer. For employees of government
agencies, social insurance is usually administered by the Government
Social Insurance System (GSIS), although other systems are used in some
agencies, like the Department of Justice and the judiciary.
States may also adopt non-contributory social security schemes.
This scheme may target only specific classes, or may be a temporary
measure. In the Philippines, government agencies such as the
Department of Social Welfare and Development (DSWD) or the local
government unit (LGU) usually provide assistance to victims of
calamities, in the form of cash, shelter or housing materials. The
Pantawid Pamilyang Pilipino Program (4 P’s) is a social assistance and
social development strategy aimed at poverty reduction in compliance
with the Millennium Development Goals of,the United
CHAPTER V 75
Nations. The Senior Citizen’s Act granting discounts at restaurants, groceries

and drugstores to persons sixty years old or over is another scheme,
specifically designed for senior citizens.
u) Right to work
Article 23 of UDHR declares that, “Everyone has the right to work,
to free choice of employment, to just and favourable conditions of
work and to protection against unemployment. Everyone, without
any discrimination, has the right to equal pay for equal work "The
right to work and to the enjoyment of just and favorable conditions of work
are also recognized under Articles 6 and 7 of ICESCR.
Labor is a primary social economic force, and the State “shall afford
full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of
employment opportunities for aZZ.”49
v) Right to rest and leisure

Article 24 of UDHR declares that, “Everyone has the right to
rest and leisure, including reasonable limitation of working
hours and periodic holidays with payThis labor right protects the
individual from the harmful long-term effects of long working hours on his
physical and psychological condition.
The internationally-accepted daily working hours is eight (8) hours.
The International Labor Organization (ILO) has been pushing for
international labor standards. Still, slave-like conditions are present in both
industrialized and non-industrialized countries.
In the Philippines, workers are entitled to lunch breaks and short
coffee breaks. Maternity and even paternity leaves are granted, with pay. The
Labor Code of the Philippines grants premium pay for work done at night or
during holidays.
w) Right to adequate standard of

living
Article 25 of UDHR declares that, *Everyone has the right to a
standard of living adequate for the health and well-being of himself
and his family, including food, clothing, housing and medical care
4
*Section 3, Article kill, 1987 Philippine Constitution; also Section 2, RA 8042, as amended.
and necessary social services. ..." Article 11 of ICESCR recognizes the

right to adequate standard of living and the right of everyone to be free
from hunger. The said article exhorts member States to take measures
to improve food production and distribution.
The rights to food, housing, and medical are the three (3) most
basic rights of human beings. The term "adequate” shall be understood
to mean the minimum requirement for subsistence. However, even the
minimum requirement may not be met in certain jurisdictions. Usually,
compliance depends on the state’s economic capability.
As "positive rights,” the responsibility of the State is to do
something to ensure that these rights are not denied to the citizens.
This does not mean that the State must give away houses and food
indiscriminately, because that could produce disastrous effects, aside
from not being feasible or affordable. Rather, it means that the State
must establish programs and infrastructures to spur activities and
opportunities for its citizens. The principles of Social Justice have often
been applied to this right, wherein states are urged to provide ways and
means that ensure access to food, housing, health care, and clothing
regardless of wealth or status in life.
x) Right to education
Article 26 of the UDHR and Article 13 of the ICESCR recognize the
right of everyone to education. In these human rights instruments, it is
stated that:
a) Elementary education shall be free and compulsory;
b) Secondary education in its different forms, including technical
and vocational, shall be made generally available and
accessible;
c) Higher education shall likewise be accessible on the
basis of capacity.
One of the targets in the United Nations Millennium Development
Goals (MDG) is to "ensure that, by 2015, children everywhere, boys and
girls alike, will be able to complete a full course of primary schooling.”
CHAPTER V 77
The Philippines has long complied with the MDG on free

elementary education. In most barangays in the country, there is also free
secondary education. On February 27, 2012, Republic Act 10157 was
passed, providing for the implementation of the free universal
kindergarten program for all public schools.
y) Right to enjoy economic, social and

cultural life
Article 27 of UDHR and Articles 3 and 15 of ICESCR recognize the
right of everyone to enjoy their economic, social and cultural rights.
Article 27 of ICCPR guarantees the right of ethnic, religious or linguistic
minorities “to enjoy their own culture, to profess and practice their own
religion, or to use their own language.”
In the Philippines, the government promotes and encourages the
enjoyment and preservation of cultural heritage and traditions. Many
cultural and religious activities have become recognized as holidays and
have become tourist attractions themselves, such as the Sinulog,
Ati-atihan, Pintados and Dinagyang of the Visayas. In some places with
Igorot heritage, the dances, artwork, agriculture, and tradition
continuously amaze tourists and are preserved and passed on to the
younger generation through education by incorporating them in the
curricula.
There are certain instances when religious practices may clash with
other human rights principles. A classic example is the age of marriage,
which under International Human Rights Law must be at least 18 years,
regarded as ‘Tull age” or “age of maturity.” Some religious laws and
traditions in many countries, including the Philippines, may allow
marriage during what is regarded as “age of childhood” by international
law.
z) Right of self-determination
In both the ICCPR and ICESCR, Article 1 states that, “All peoples
have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and
cultural development” As part of international law, both covenants
emphasize the political right of “peoples” to determine their political status.
This right is reiterated in Article 1(2) of the United Nations Charter which
states that one of the purposes
INTERNATIONAL AND PHILIPPINE HUMAN UMIITH LAW#
of the UN is: *Tb develop friendly relations among nations based on

respect for the principle of equal rights and self-determination of
peoples, and to take other apptvpiiate measures to strengthen
universal peace*
The word “peoples” has not been officially defined, but has been
taken to mean a group of persons sharing the same political, social,
racial, and cultural backgrounds. Ethnic minorities, religious groups
and tribes with a slightly different form of art or dialect are not
considered separate “peoples” under International Law, but are part
of the larger group with the common background.
There used to be a number of “peoples” who did not have their
own sovereignty, owing mostly to invasions, colonizations and war.
Philippines, Indonesia, India and many others in South America,
Africa and Europe were under the control of governments other than
their own. Filipinos shared a common culture and were “one people”
before the Spaniards came. They had a form of government, were
long engaged in economic relations with other nations, had several
forms of religion, and had its own unique literature and alphabet
before the Spanish conquest.
The right of self-determination gets problematic where the issue
of territory is concerned. The conflict between Israel and Palestine
revolves around this issue. They are definitely separate peoples but
they lay claim on the same territory. The issue of the Inuit in
Greenland who are asking for self-determination and independence
from Denmark is another matter because they, as a people, have
their own territory. The issue of Taiwan and China is that Taiwan is
claiming sovereignty and is occupying a separate territory but they,
as a people, are historically Chinese. The issue of the Indian nations
in the United States is similar to the issue of the Aboriginals in
Australia, who historically owned the territories where they are now
considered “minorities.” In the United States however, the Indians
are given “territories” in the form of reservations, and exercise
autonomy in the governance of their “nations.” In the case of the
Aboriginals in Australia, their native titles to their indigenous lands
have been very restricted by law and jurisprudence.
There is no rule or procedure under International Law for
secession by a group from an established State as a mode of
exercising the right of self-determination. Paragraph 6 of UN
CHAPTER V 79
Resolution 1514(XV), states that 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
Charter”
In the case of East Timor, secession came about after two (2)
decades from its annexation to Indonesia, which in turn happened
barely days from the time it became independent from Portugal. East
Timor was not part of Indonesia for many years and the East
Timorese had a contemporary culture and religion different from most
Indonesians prior to its annexation.
In the case of Mindanao, several groups had tried for decades to
secede but were not successftd owing to a lot of factors, including the
ethnical and cultural sameness of the people from Mindanao with
those from the rest of the country, the religious acceptance and
tolerance of the religiously-diverse population in Mindanao, and the
greater participation of Muslim Filipinos in the national governance
and economy.
aa) Right to health

The right to health is declared in Article 25 of the UDHR which
states that, “Everyone has the right to a standard of living adequate for
the health and well-being of himself and of his family.
.. ” Article 12 of the ICESCR states that, “The States Parties to the
present Covenant recognize the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health....”
The UN Committee on Economic, Social and Cultural Rights
(CESCR) states in General Comment No. 14: The Right to the Highest
Standard of Health that, “the right to health contains both freedoms
and entitlements. The freedoms include the right to control one's health
and body, including sexual and reproductive freedom, and the right to
be free from interference, such as the right to be free from torture,
non-consensual medical treatment and experimentation. By contrast,
the entitlements include the right to a system of health protection which
provides equality of opportunity for people to enjoy the highest
attainable level of health."
CHAPTER VI
VI. A. 1. DOMESTIC APPLICATION OF IHRL

There are two (2) theories on the domestic applicability
of international human rights law:
a) Monist theory — International law and domestic
law comprise one legal system. In absolute
monism, international law automatically becomes
domestic law, without need to enact a separate
national law. Domestic laws, including the
Constitution, that contravene international law,
may be declared invalid. The Netherlands is
considered a monist state. Many States are partly
monists, partly dualists. International human
rights law dictates domestic laws, and the State
must enact domestic laws to conform to
international law.
b) Dualist theory — International law and domestic law are
different legal systems. International law does not become
obligatory to its citizens until the State passes a
corresponding domestic law containing its provisions. At
times, local laws are considered more binding and superior
by judges and legal practitioners. Most times, local laws are
revisited and amended to conform to international law, but
until such amendment, the local ; laws remain valid,
although this could mean a possible j violation by the State of
its treaty obligations. The lex posterior principle is often
resorted to in dualist systems: j whichever is the latter law,
prevails. This is not much of a problem for the Philippines,
where its treaty obligations are usually taken into
consideration in the enactment of laws.
The Philippines has signed and ratified most of the important
international human rights treaties, sans reservations. However,
many Philippine judges still consider international laws as having less
binding effect compared to domestic laws. The dualist theory is the one
prevailing in the Philippines. Congress has to pass domestic
80
CHAPTER VI 81
laws (e.g.y Child Abuse Law for CRC; Anti-Violence Against

Women and Their Children or Anti-VAWC for CEDAW) in order to
enforce international conventions locally.
Section 2, Article II of the Philippine Constitution contains
the “incorporation clause.” The clause is not necessarily in conflict
with the dualist attitude. It is specifically limited to the adoption
of “generally accepted principles of international law” as part of the
law of the land.50 Generally accepted principles of international
law comprise just one of the four (4) sources of international law.
In so far as the other source, z.e., treaty, is concerned, such does
not become a law until Congress enacts one translating the treaty
into a law of local application, in dualist fashion.
VI. A. 2. INTERNATIONAL APPLICATION OF IHRL

The consent of a State to be bound by a treaty may be
expressed by signature, exchange of instruments constituting a
treaty, ratification, acceptance, approval or accession, or by any
other means, if so agreed.51
Signature:
Signature to a treaty, however, does not automatically
mean consent of a State to be bound by said treaty, if under
the national law, it is the act of ratification which operates to
bind that State. Notwithstanding the signature, there still
must be the process of ratification, acceptance or approval to
be done by the State. Without ratification, the signature may
only operate as a means of authentication and to show the
openness of the signatory State for further discussions on the
treaty-making process.
A uSignature ad referendum ” means that the signature
becomes definitive only once the signature is confirmed by
the State.52 “Definitive signature” operates as the consent of
a State to be bound by a treaty when that treaty is not subject
to ratification, acceptance or approval.53
soSection 2, Article II, Philippine Constitution.

“Article 11, Vienna Convention on The Law of Treaties, January
“Article
27,1980.
12, ibid.
S3lbid.
INT1CUNATI0NAD AND WUUmNK HUMAN MJUHYW,Ufy
Exchange of let tern or no ten:

Consent can bo oxprossod through exchange of Jetten I or
notes. Here, there will necessarily be two (2) letters, if the treaty is
bilateral, with at least one (1) from each party,54
Act of formal confirmation:

Where it is an international organization that intends to
be bound by a treaty, instead of ratification the term used is
usually “act of formal confirmation.”55
States Parties may be allowed to limit, restrict, or modify the
application of a treaty by:
1) Reservation;
2) Interpretative declaration;
3) Modification;
4) Denunciation.
It is important to note that a State “may not invoke the
provisions of its internal law as justification for its failure to
perform a treaty.”56
Reservation:
Reservation means a unilateral statement, however phrased
or named, made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude or
to modify the legal effect of certain provisions of the treaty in their
application to that State.57
Reservations are not allowed when:
1) It is prohibited by the treaty;
2) It is not included in the reservations specified by the treaty;
^Treaty Reference Guide (http://untreaty.un.org/ola-internet/assistance/guide.htm)

[accessed on July 19, 2013. -Ed.].
**lbid.
56Article 27, Vienna Convention on The Law of Treaties, January 27,1980.
"Article 2(l)(d), ibid.

CHAPTER VI 83
3) It is incompatible with the object and purpose of the

treaty.58
A signatory or contracting state may object to a reservation if it

believes that it is incompatible with the object and purpose of the
treaty.
Interpretative declaration:
An interpretative declaration is an instrument that is annexed
to a treaty with the goal of interpreting or explaining the provisions
of the latter.59
Modification:
Modification is the variation of certain treaty provisions only
as between particular parties of a treaty, while in their relation to
the other parties the original treaty provisions remain applicable. If
the treaty is silent on modifications, they are allowed only if the
modifications do not affect the rights or obligations of the other
parties to the treaty and do not contravene the object and the
purpose of the treaty.60
Denunciation:
Denunciation means the withdrawal by a State Party from a
treaty.61 Treaties such as the CRC, ICERD, and CAT allow
denunciation; ICCPR, ICESCR and CEDAW do not allow
denunciation.
VI. B. ENFORCEMENT MECHANISMS

States and governments are the guarantors and protectors of
human rights, and because of the doctrine of State responsibility, they
can be the violators at the same time. They are not, however, the only
violators of these rights. Individuals, juridical persons,
58Article19, ibid.
59Treaty Reference Guide (http://untreaty.un.org/ola-internet/assistance/guide.htm)
[accessed on July 19, 2013. - Ed.].
60 Ibid.
61 Article 42, Vienna Convention on The Law of Treaties.
84
INTERNATIONAL AND PIUMM'INK HUM AH HIGtVW
groups, and business entities may be violator#, ft I# rweenmiry distinguish

between enforcement of human right# law# a gain# individual violators and
enforcement against State violator#, these involve different means of enforcement.
VI. B. 1. ENFORCEMENT AGAINST INDIVIDUALS
Domestic enforcement:
In order to effectively protect individuals from 1 nfringornenU on their
human rights, enforcement at the national level i# necessary and desirable. The
enactment of national laws to enforce international human rights commitments
has been a Philippine strategy. In so doing, it translates a soft law into a giving
it more teeth, so to speak, and making individual violators directly accountable.
In the Philippines, we have the Revised Penal Code and other penal
statutes which criminalize human rights violations and punish individual
violators. Title 2 thereof, on Crimes Against the Fundamental Laws of the State,
punishes violations of human rights similar to those guaranteed under the ICCPR.
The New Civil Code contains provisions on the right to seek compensation for
damages from individual violators. The laws creating the Ombudsman and the
Revised Administrative Code also provide administrative sanctions against
violators in government service. Protective writs and similar judicial remedies
may also be availed of, such as the writs of habeas corpus, amparo and habeas
data, and even restraining orders.
International enforcement:
Individuals may be brought to justice before hybrid courts, ad hoc
international courts, or before the ICC. In the latter court, however, its jurisdiction
is limited to the crimes of genocide, crimes against humanity, war crimes and
crimes of aggression.62 These are all criminal courts.
“Article 5, Part 2, Rome Statute of the International Criminal Court, July 1, 2002.
CHAPTER VI 85
VI. B. 2. ENFORCEMENT AGAINST STATES
1. Court action
Where the violator is a State, redress may be sought at the
national, regional, or international courts. In the regional level,
regional human rights conventions or treaties govern the manner by
which human rights commissions and courts may be accessed to seek
redress. At the International Court of Justice (ICJ), only States may
bring a case against another State. At the International Criminal
Court (ICC), individuals and heads of State may be tried for crimes
defined and punished under the Rome Statute (or any other treaty in
so far as the crime of “acts of aggression” is concerned). 63 At the
European Court of Human Rights, individuals are allowed to directly
bring a case against a State.
2. Diplomatic means
Aside from bringing complaints before human rights courts,
States whose nationals have been victims of human rights violations
by another State may opt to avail of diplomatic means. This may
entail negotiations and dialogue.
3. Retorsion
‘ This may involve withholding of foreign assistance (US), or
stoppage of oil imports (oil-producing countries). These are unfriendly
acts which do not necessarily constitute violations of rights of the
offending State.
4. Countermeasures
Countermeasures are responses by a State to the wrongful
conduct of another, as a tool of self-redress.64
63The Rome Statute of the International Criminal Court defines only three (3) of
the four (4) crimes enumerated therein.
64Cannizzaro, Enzo: The Role of Proportionality in the Law of International
Countermeasures at
http://ejil.oxfordjournals.Org/cgi/content/abstract/12/5/889[accessed on July
19,2013.-Ed.].
- ... iat-,
vjmmM
IgP
86
5. Military Intervention
The use of armed force is still being resorted nowadays. The
military intervention in Libya in 2011 was by virtue of a United Nations
Resolution. The use of force in Iraq, however, did not have such
authority.
VI. C. RESTRICTIONS AND LIMITATIONS

While the substance of human rights cannot be taken away from
human beings, its exercise may, however, be regulated. An unrestricted
exercise of rights could infringe on the rights of others, or could be
detrimental to public health, public morals, or national security.
States do not have the absolute discretion and prerogative to
restrict the exercise of human rights. Their actions must be bounded
by certain parameters and they must take into consideration the
following:
1) There must be a clear legal provision of law;
2) The restriction must be a specific legitimate purpose;
3) The proportionality test must be applied;
4) The least intrusive measure should be applied; and
5) The law must be strictly interpreted against restriction.
Derogation:
Some human rights are non-derogable, and some may be suspended or
restricted by States.
Article 4 of ICCPR allows the derogation of rights, provided
that:
1) There is a public emergency which threatens the life of the
nation;
2) The existence of public emergency is officially proclaimed;
3) The derogation is to the extent strictly required by the exigencies
of the situation;
CHAPTER VI 87
4) The measures taken are not inconsistent with the State’s

other obligations under international law;
5) The measures taken do not involve discrimination solely on
the ground of race, color, sex, language, religion, or social
origin.
CHAPTER VII
MONITORING SYSTEMS
The rule of pacta sunt servanda requires that States comply

with their obligations arising from international human rights
laws and treaties. In order to check on the compliance by States of
these obligations, monitoring mechanisms are set up. These
monitoring mechanisms may be:
1. Charter-based — Those provided under the United Nations
Charter itself, or through UN organs, such as the Human
Rights Council (formerly Human Rights Commission) and
the ECOSOC. Examples are ECOSOC j Resolution No. 1503
(“1503 Procedures”) and No. 1235 (“1235 Procedures” on
Special Rapporteurs). The J Universal Periodic Review is
another such mechanism.
2. Treaty-based — Those provided under the treaties 1
themselves.
The International Covenant on Civil and Political Rights
1 (ICCPR), the International Covenant on Economic,
Social and Cultural Rights (ICESCR) and the Convention
| on the Elimination of Discrimination Against Women |
(CEDAW) have express provisions on the monitoring I
mechanisms to ensure compliance of said conventions. I
The Convention on The Rights of the Child (CRC) also §
contain such provision but its implementation had been 1
put on hold for some time.
A. CHARTER-BASED MECHANISMS
1. Complaints Procedure: The 1503 Procedure
The 1503 Procedure originally passed under the ECOSOC E
has been carried over to the Human Rights Council complaints I
procedure. This is a procedure whereby individual complaints
from i human rights victims or groups representing them are
accepted by I the UN body.
Among the main features of the complaint mechanism is R its
confidentiality provision and the need for prior exhaustion of |
domestic remedies.
88
CHAPTER VII 89
MONITORING SYSTEMS
The procedure is two (2)-tiered:

First, the complaint goes to the Working Group on
Communications (WGC), a group of five (5) experts, who assesses the
admissibility and merits of the complaint.
Second, the complaint is endorsed to the Working Group on
Situations (WGS), another group of five (5) members appointed by the
regional groups of member States. This group examines the complaint
and presents its recommendations to the Human Rights Council on
the course of action to take.
2. State Reports
States are required to render a report on their human rights
situation. These annual reports are called Country Reports on
Human Rights Practices or the Human Rights Reports. They contain
situationers on the civil, political, and economic rights as set forth in
the Universal Declaration of Human Rights and other treaties.
The State Reports are usually comprehensive, but they may not
necessarily reflect the real sentiment of their citizenry, considering
that States understandably tend to downplay under-achievement and
to sugarcoat minor setbacks in order to avoid international
embarrassment or condemnation. Some States are not very prompt in
submitting their reports.
3. Special Procedures
Special Rapporteurs
Aside from reports coming from the States themselves, United
Nations rapporteurs also provide the UN important information on
the extent of compliance by States in their international
commitments. Rapporteurs may be country-specific or thematic.
Special rapporteurs, experts or envoys are sometimes sent to member
States in order that they make an investigation and report to the UN
on the human rights violations committed.
There are only a few countries where special rapporteurs have

been assigned to, and these are countries where reports of human
rights violations are rampant. Among these countries are North
Korea, Somalia, Sudan, Iran, Haiti, and Burundi.
10
90
Among tho thematic special rapporteurs are the Special

Rapporteur on Adequate Housing, Food, Education, Minority Issues,
Physical and Mental Health, Independence of Judges and Lawyers,
Freedom of Assembly and Association, Contemporary Forms of Slavery,
Trafficking in Persons, Torture, Human Rights of Migrants, Sale of
Children, Child Prostitution and Child Pornography, and Extrajudicial,
Summary or Arbitrary Executions.
In 2007 and 2008, the Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions, Mr. Phillip Alston, came to the
Philippines at the country’s invitation in order to conduct an
investigation on the alleged summary executions committed in Luzon
and Davao.
4. NGOs and NHRIs

Non-governmental organizations (NGOs) and National Human
Rights Institutions (NHRIs) play a vital role in providing the United j
Nations with information on the human rights situation in a State.
NGOs may submit written reports, referred to as “shadow reports* j
or “alternative reports” which could be useful during the Universal 1
Periodic Review (UPR) process. NGOs with consultative status can [
participate in the discussions on human rights issues before the UN I
Human Rights Council.
Among the more active international NGOs are the Amnesty I
International and the Human Rights Watch. In the regional level, 1
reputable NGOs maybe allowed to bring a complaint in behalf f of an
individual victim to the Regional Human Rights Commission. 1
5. Universal Periodic Review

The Universal Periodic Review (UPR) is authorized under! the
UN General Assembly Resolution No. 60/251 issued on March [ 15,
2006, the same instrument that established the Human Rights f
Council. Starting 2008, States were required by the Human Rights I
Council to render a report on its human rights situation once every £
four (4) years.
In this procedure, the State presents its report on its human f
rights situation, and a troika composed of three (3) other member | States
will give their comments and suggestions. There are concerns |
CHAPTER VII 91
MONITORING SYSTEMS
that this procedure might not be able to depict the real human rights f
situation in a State, for two (2) reasons: first, because the State making the
report might try to sanitize it; and second, because the ■ States composing
the troika, represented by diplomats, are wont to | employ diplomacy
instead of confronting the reporting State on a j human rights violation.
Among those in the first batch in the first reporting round in 2008
that rendered the report was the Philippines. The report j was presented by
a team headed by Secretary Eduardo R. Ermita, | Executive Secretary and
Chairman of the Presidential Human | Rights Committee, on April 11, 2008.
It was adopted on April j 15, 2008. The States serving as troikafor the
Philippines were j Germany, Malaysia, and Mali.
The second UPR report of the Philippines was presented by I the
team led by the Secretary of the Department of Justice, Leila de | Lima in
2012.
B. TREATY-BASED MECHANISMS
Human rights treaties usually contain provisions to monitor
compliance by States of their obligations under the treaty. It must be
clarified though that these monitoring mechanisms are not the same as the
courts of justice or human rights courts where awards for monetary damages
may be given. These treaty bodies render “views” on complaints brought
before it. Occasionally, they issue orders which are in the nature of
provisional remedies. In one case, the Human Rights Committee ventured to
say that provisional j remedies are mandatory.65
The monitoring bodies are the following:
1. Human Rights Committee — Composed of 18 members,
is the body charged with overseeing compliance of the • ;
ICCPR. The Committee reviews the reports of the 162 States
who ratified the ICCPR, as well as the individual petitions
against the 114 States who ratified the Optional Protocol to the
ICCPR.
“Piandiong vs. The Philippines, Case No. 869-1999, Human Rights Committee.
92
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAW#
2. Committee on Economic, Social and Cultural Rights —

This body monitors the compliance by States of the ICESCR.
The Committee is directly under the Economic and Social
Council (ECOSOC) and the General Assembly.
3. Committee on the Elimination of Racial Discrimination
— Monitors the International ! Convention on the Elimination of
Racial Discrimination. Aside from the reporting procedure, it
also has three [ (3) other mechanisms: the early-warning
procedure, J the examination of interstate complaints, and the j
examination of individual complaints.
4. Committee on the Elimination of Discrimination |
Against Women — Monitors the Convention on the \
Elimination of Discrimination Against Women. It is f composed
of 23 experts on women issues who reviews 1 the State Reports of
members who submits them once every four (4) years. The
Committee also issues General | Recommendations on issues
affecting women which need I more focus.
5. Committee on the Rights of the Child — Composed of 18
independent experts that monitor State compliance to j the
Convention on the Rights of the Child. States submit | their
reports to the Committee. To date, it cannot entertain |
individual complaints, but it conducted investigations on the
disappearance of the 11th Panchen Lama of Tibet, I who, as a
young boy, was alleged to have been held in | detention by
Chinese authorities.
6. Committee Against Torture — Monitors the I Convention
Against Torture and Other Cruel, Inhuman 1 or Degrading
Treatment or Punishment. It is composed 1 of 10 independent
experts. It reviews State Reports I which are submitted once
every four (4) years, and also | conducts inquiries, inter-state
complaints and individual 1 complaints.
7. Committee on Migrant Workers — Monitors the I compliance
by member States of the International 1 Convention on the
Protection of All the Rights of Migrant I Workers and Members
of their Families. State Reports 1
CHAPTER VII 93
MONITORING SYSTEMS
are submitted and reviewed once every five (5) years. Its
individual complaint mechanism has not yet been
activated.
8. Committee on the Rights of Persons with Disabilities
— Monitors the Convention on the Rights of Persons With
Disabilities. It is composed of 12 members serving four
(4)-year terms.
As previously stated, treaty bodies render views on
complaints lodged before them, and concluding
observations based, dh the State reports.
Human Rights Committee ‘

The 18 experts comprising the Committee are elected to a four
(4)-year term, and do not represent any country. They perform two (2)
main functions:
a) Receive and review State Reports — State reporting under
the ICCPR is done once every five (5) years by all member
States who ratified the treaty itself. The reporting State
shall show the ways by which it complied with its
obligations under the treaty. A “dialogue” is conducted by
the Committee with the delegation of the Reporting State.
Thereafter, and taking into consideration other reports
such as those submitted by NGOs, the Committee shall
issue the “Concluding Observations.”
b) Decide on complaints against member States who ratified
the First Optional Protocol — The complaints must be in
writing and must be filed by a person who is directly
affected by the State’s action. Actiopopularis is not allowed
before the Human Rights Committee. The concerned State
is given the opportunity to Comment on the petition before
the Committee will decide on the Admissibility and Merits
of the case. The ruling of the Committee is called a “View,”
which does not have a legal binding effect. However, it may
also issue interim measures similar to provisional
remedies under our rules. These interim measures can
have a mandatory character.66
66
Piandiong vs. Philippines, Case No. 869-1999, Human Rights Committee.
94
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAW
Among the notable complaints against the Philippines

were the cases of P i a n d i o n g v s . The
Philippines,67Baroy vs. The Philippines,96
Pimentel vs. The Philippines,69Marcellana and Gumanoy vs.
TO
The Philippines ,
Lumango and Santos vs. The
Philippines,11 and Larranagavs. The Philippines12
“Id.
“Case No. 1045-2002, id.
“Case No. 1320-2004, id.
"Case No. 1560-2007, id.
’’Case No. 1466-2006, id.
"Case No. 1421-2005, Id.
CHAPTER VIII
THE UNITED NATIONS
The United Nations Organization is the international body

composed of the family of nations. Currently, it has 193 member
States. It is headquartered at New York, USA and maintains offices
at Geneva, Switzerland and Vienna, Austria. It officially came into
being on the date of ratification of the United Nations Charter at
San Francisco, USA on June 26, 1945. The United Nations Day is
celebrated on October 24 of each year.
The United Nations, through its organs, offices, agencies,
programmes, and subsidiary agencies, are instrumental in human
rights and humanitarian law policymaking, implementation, and
monitoring.
VIII. A. PURPOSES OF THE UN

Article 1, Chapter 1 of the UN Charter provides for the
following purposes, to wit:
1. To maintain international peace and security;
2. To develop friendly relations among nations;
3. To achieve international cooperation in solving
international problems and in promoting respect for
human rights and fundamental freedoms; and
4. To be a center for harmonizing the actions of nations in
the attainment of common ends.
VIII. B. PRINCIPAL ORGANS OF THE UN:
1. General Assembly (UNGA) — Composed of
representatives
of all the member States, each with one (1) vote. C#trlos
P. Romulo of the Philippines became the fourth president
of this very elite assembly in 1949. UNGA deliberates on
important questions, such as membership, budget, peace,
and security. The Human Rights Council is a subsidiary
of UNGA. The defunct Human Rights Commission
(HRCion), which was replaced by the Human Rights
95
INYRUNAI'lONAl* AND HUUPP1NK HUMAN MOUTH Utyg
Council* was under tho Economic and Social

Council tECOSOCX
2L Security.Council ISO) — Composed of 15 States, five (5) j
of which are permanent, namoly: Franco, USA, China,
Russian Federation and tho United Kingdom. Any of the
five t5) permanent members may veto a proposal by casting
a negative vote. The ten (10) other members are elected by
UNGA for a term of two (2) years. Its primary responsibility
is to maintain international peace and ; security. The
International Criminal Tribunal of Rwanda | (ICTR1 and
The International Criminal Tribunal for the I former
Yugoslavia (ICTY) are under the Security Council. J
3. Economic and Social Council (ECOSOC) — Composed j of 54
member States elected by UNGA. It deliberates on I
international economic and social issues. Its members f have
three (3)-year terms.
4. Trusteeship Council — Composed of the five (5) |
permanent members of the Security Council (USA, UK, I
China, France, Russian Federation). Its major task was I to
promote the advancement of trust territories and their |
development towards self-government or independence. I
With the independence of the last trust territory, Palau, 1 in
1994, the functions of the Trusteeship Council ceased. I
5. Secretariat — Composed of an international staff of | about
8,900 civil servants, headed by the Secretary- General, who
is appointed by the UNGA. It administers | the programs
and projects of the UN all over the world.
6. International Court of Justice — The principal judicial I
organ of the UN. Only States can bring cases before this I
court. Aside from settling the disputes submitted by States,
I the IC J also gives advisory opinions on legal issues.
\ • * ) i ct* ?,* rnrAf . Yi. I
VIII. C. OFFICES, AGENCIES, PROGRAMMES AND SUBSIDIARY
BODIES IN THE UN
The principal organs of the United Nations have their own I
subsidiary bodies, departments, agencies and programs that carry 1
CHAPTER VIII 97
THE UNITED NATIONS
out specific tasks, with the exception of the International Court of

Justice and the Trusteeship Council.
Among the subsidiary bodies in the UN General Assembly are
the: 1) Human Rights Council, 2) International Law Commission,
and the 3) Disarmament Commission.
Human Rights Council (HRC)

The UN body tasked to strengthen the promotion and
protection of human rights is the Human Rights Council (HRC),
which was created by the UN General Assembly on March 15, 2006,
replacing the Human Rights Commission (HRCion). The Human
Rights Council is made up of 47 States and it reports directly to the
UN General Assembly, unlike the Human Rights Commission
which used to be part of the ECOSOC.
Among the breakthroughs of HRC are the 1) Universal
Periodic Review (UPR) of all member States of the UN and the 2 )
Complaints Procedure which allows individuals and organizations
to bring complaints on human rights violations to its attention.
This procedure is the successor of the 1503 Procedure which was
carried over from the Human Rights Commission.
Specialized programmes and funds

The United Nations General Assembly (UNGA) and the
Economic and Social Council (ECOSOC) operate programmes and
funds for the world community. Among these are the: 1) United
Nations Children’s Fund (UNICEF); 2) United Nations Entity for
Gender Equality and the Empowerment of Women (UN WOMEN);
3) United Nations Environment Programme (UNEP); 4) United
Nations Office on Drugs and Crime (UNODC); 5) United Nations
Human Settlements Programme (UN HABITAT); 6) United
Nations Population Fund (UNPFA); 7) Office of the United
Nations High Commissioner for Refugees (UNHCR); and the 8)
World Food Programme (WFP). ,,5
,
Specialized agencies commissions and bodies
The Economic and Social Council (ECOSOC) has several

specialized agencies, commissions and bodies. The specialized
98
agencies are autonomous organizations which are linked through

agreements. Among the specialized agencies are the: 1) World Health
Organization (WHO); 2) United Nations Educational, Scientific and
Cultural Organization (UNESCO); 3) International Labour j
Organization (ELO); 4) Food and Agriculture Organization (FAO); 5)
World Intellectual Property Organization (WIPO); 6) International {
Monetary Fund (IMF); 7) World Bank Group; 8) International | Civil
Aviation Organization (ICAO); 9) International Maritime f
Organization (IMO); 10) International Telecommunication Union f
(ITU); 11) United Nations Industrial Development Organization
(UNIDO); 12) World Tourism Organization (UNWTO); 13) Universal
Postal Union (UPU); and 14) International Fund for Agricultural
Development (IFAD).
Offices under the Secretariat _>*

The Secretariat has several offices under it ^principal of | which
is the Executive Office of the Secretary-General (EOSG). The focal
point of this organ is the Secretary-General. He serves a term of five
(5) years, with no limit on the number of five (5)- year terms. Other
offices under the Secretariat are the: 1) Office of j the High
Commissioner for Human Rights (OHCHR); 2) Office for the
Coordination of Humanitarian Affairs (OCHA); and the 3) Office of |
the Special Representative of the Secretary-General Children and
Armed Conflict (OSRSG/CAAC).
Among the subsidiary bodies of the Security Council are the
UN Peacekeeping Commission, the International Criminal
Tribunal of the Former Yugoslavia (ICTY), and the International
Criminal Tribunal of Rwanda (ICTR).
CHAPTER IX
MILLENNIUM DEVELOPMENT GOALS
In September 2000, 189 world leaders adopted the United

Nations Millennium Declaration and committed their countries to
join in achieving the eight (8) Millennium Development Goals
(MDG’s) identified by the United Nations, with a target date of
Year 2015, namely:
1. Halving extreme poverty;
2. Providing universal primary education;
3. Promoting gender equality;
4. Reducing child mortality;
5. Improving maternal health;
6. Halting the spread of HIV/AIDS, malaria, and other
diseases;
7. Ensuring environmental sustainability; and
8. Developing a global partnership.
In line with that commitment, a concrete plan was drafted
in 2002, known as the UN Millennium Project, and the UN
Millennium Campaign was started. Every now and then, a Global
Millennium Summit is held to renew and monitor on the progress
of the campaign.
During the UN Summit in September 2010, some countries
reported on their successes in achieving the MDG goals, among
which were:
1. On Goal 1 — Nicaragua reported that it already reduced
extreme poverty by more than 50%; Malawi reported
more than 53% food surplus; Vietnam reported that
because of investments on agriculture research and
extension, it has met the goal.
The Philippines spent a huge chunk of its resources to
alleviate hunger through the Pantawid Pampamilyang
Pilipino Program (4 P’s) not only to address hunger but
also for education and health. The program has had its
99
share of critics who accuse the government of wasting

precious tax money to give to the poor, which they label as
“band-aid solution ” instead of providing them jobs and
teaching them how to fend for themselves. That is a good
argument if we have enough employers in the country that
will take everyone in, at the click of a finger, regardless of
the applicant's work skills. While a perfect Social Justice
environment can only be achieved with the citizen's
participation and commitment, the government cannot and
should not give up investing on its people.
The government is committed to the Conditional Cash j
Transfer program and to MDG Goal 1. Towards those 1 ends,
the government must not only work on long-term and
medium-term solutions but must also provide quick I
short-term solutions.
9\
Indeed, it is a great relief that the government is finally I
recognizing the need to boost the economy'by setting in j
motion the poor people's spending capability rather than a
few corrupt official stashing public funds in secret private
accounts in offshore banks.
2. On Goal 2 — Kenya, Tanzania, Mongolia, Bolivia, and
Ethiopia reported huge strides towards achieving the goal.
The Philippines is way ahead, as we not only have free
primary education in most parts of the country, we also have
free secondary education. More than that, the country is now
bent on finding ways to improve the quality of the education
system. Its spot in the 2011 World Economic Forum report as
No. 1 in Asia in terms of I women education, with a perfect
score, is well-deserved.
3. On Goal 3 — Mexico, Ethiopia, Rwanda, Tanzania,
Guyana, and Jamaica presented impressive records
towards fulfilling its commitment to the goal.
The Philippines is the undisputed leader in Asia in
gender equality. In its Global Gender Gap 2011 Report,
the World Economic Forum ranked the country as the top
among Asian countries. The Philippines ranked 8th in
the whole world on gender equality, outranking the
United States, and is the only Asian country in the top
ten
r
101
CHAPTER IX
MILLENNIUM DEVELOPMENT GOALS
(10). We have women loaders in government, business,

education, health, socio-civic organizations, and many
important sectors. They are making great contributions in
making our country a better country, and the whole world
acknowledged this.
4. On Goal 4 —* China, Laos, Cambodia, Nepal, Rwanda,
Bolivia, Mozambique, Zambia, Bhutan and Malawi are among
the countries that have recorded successes on their efforts to
reduce child mortality. The Philippines is striving to better its
record on this.
5. On Goal 5 — India, Malawi, and Rwanda have shown
successes in improving maternal health. The Philippines is
not faring so bad, but must continue to improve its record. In
many provinces such as Cebu, birthing centers are established
to cater to the needs of pregnant women. However, there are
still many places in the country where birthing is assisted by
ill-trained and ill-equipped hilots using unhygienic methods.
6. On Goal 6 — Cambodia stopped the spread of HIV; China,
Estonia, and Latvia scored successes in the fight against
tuberculosis; Eritrea, Rwanda, Tanzania, Sao Tome and
Principe, and Zambia reduced the cases of malaria.
The Philippines had already become successful decades ago in
the fight against tuberculosis and malaria, but the threats
against HIV and dengue are new challenges that the health
department is up against. Still, the country is No. 1 in Asia in
the field of women health, according to the 2011 World
Economic Forum report.
7. On Goal 7 — Costa Rica, South Africa, Guatemala, Ghana,
Mali, and Senegal reported that they have made
improvements towards environmental sustainability.
8. On Goal 8 The European countries of Netherlands, Denmark,
Sweden, Luxembourg, and Norway were recognized for official
development assistance to the global community.
In a move that elicited mixed reactions, the Philippines, who
used to be pushover in the international community,
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWg
flexed muscles and committed USD 1 billion from its USD 77

billion-reserves with the International Monetary Fund in 2012,
for the monetary benefits in terms of ROI ag well as a show of
commitment to this goal. The country joined the effort of the
international community to rescue financially-distressed
countries to prevent a worldwide economic crisis.
It was hoped that the money could help some European
countries that were suffering from economic reverses, as this
could in turn help Overseas Filipino Workers (OFWs) working in
those countries. As part of the country’s reserves, the money
could not be used for public spending anyway. Therefore, it was
deemed more financially-beneficial (direct benefits in terms of
interest) if loaned to the IMF. The commitment of USD 1 billion
for a global cause would also benefit the OFW’s working in
financially-distressed countries (indirect benefits in terms of
employment). An added bonus is that the Philippines would now
pay lesser interest for its current debts because it is not
considered a high-risk debtor anymore. Indeed, this is way
better than some few corrupt leaders stashing away government
money in secret private accounts.
CHAPTER X
PHILIPPINE LAWS
PROMOTING THE RIGHTS OF THE CHILD
X. A. THE RIGHTS OF THE CHILD

Children are humans with rights that are entitled to respect
and protection. Their age and size do not diminish these rights. The
Universal Declaration of Human Rights (UDHR) declares that
children are entitled to special care and assistance, owing to their
vulnerability, dependence, and inability to speak out. Sometimes,
adults take children for granted, belittle their opinions, or worse,
treat them as properties, robots, or toys. There are many cases of
parents dictating their children and where communication is a one-
way traffic. There are also instances where misfit parents take
advantage of the inexperience of children in order to further their
less than noble agenda of greed, vanity, or redemption at perceived
personal failures. Thus, we see children married off to foreigners or
forced to work as domestics for debt bondage in order to “raise the
family,” children forced to pursue a life which the parents wanted for
themselves but failed to achieve, or very little children who are forced
to join beauty contests and all kinds of contests for the perceived
glamour that they are supposed to bring to the parents.
One father in Cebu Province, against whom a child abuse case
was filed, was brutally forthright: he said that he could do whatever
he wanted to do to his child and that no one, not even the
government, could tell him how to raise his child. This mentality still
exists in certain pockets of Philippine society. There had been cases
involving parents committing incestuous acts against their minor
children. The places of commission of these crimes would reveal that
pornographic exhibitions in the media, the usual scapegoat, could not
have been the major influence because of the remoteness of those
places and their inaccessibility to most forms of media. Rather, it is
highly probable that ignorance, lack of understanding of parental
responsibility, lack of respect for children as individuals, and twisted
sense of sexuality were the factors that contributed to their
commission.
103
On September 20, 1990, the Convention of the Rights of the

Child (CRC) entered into force. It defines a childas a person under 18
years of age, unless he attains majority earlier under a law applicable
to him,73 and declares that uthe child, by reason of his physical
and mental immaturity, needs special safeguards and care,
including the appropriate legal protection, before as well
as after birth"
The Convention advocates the following principles:
a.) The best interest of the child shall be the primary consideration
in actions concerning children;
b) States Parties shall ensure the maximum extent possible for
the survival and development of the child, and recognizes the
child's right to the enjoyment of the highest attainable
standard of health;
c) A child has the right to express his/her views freely in 1 all
matters affecting him/her and the views of the child shall be
given due weight in accordance with his/her age and maturity;
d) The child shall have the right to freedom of expression (subject
to certain restrictions);
e) States shall respect the rights of the child to freedom of
thought, conscience, and religion;
f) States Parties recognize the rights of the child to freedom of
association and the freedom to peaceful assembly;
g) No child shall be subjected to arbitrary or unlawful
interference with his/her privacy, family, home or
correspondence, nor to unlawful attacks on his/her honour and
reputation; :f
h) The child has the right to education and standard of living
adequate for the his/her developmement;
i) The child has the right to rest and leisure and to be protected
from economic exploitation.
,t.1
' * *l '
73Article 1, International Convention on the Rights of the Child.

CHAPTER X
105
PHILIPPINE LAWS PROMOTING THE RIGHTS OF THE CHILD
The Philippines is a member of the Convention of the Rights of

the Child, together with 191 other countries. This convention is the
most-ratified treaty, with only the United States and Somalia as the
remaining states which have not ratified CRC.
Philippine laws and regulations concerning children

Among the Philippine laws passed for the protection of children
are:
1. ) The Juvenile Justice and Welfare Act (RA 9344);
2. ) Special Protection of Children Against Abuse, Exploitation
and Discrimination Act (RA 7610);
3. ) Act Providing for the Elimination of Worst Forms of
Child Labor (RA 9231);
4. ) Anti-Child Pornography (RA 9775);
5. ) Anti-Violence Against Women and their Children Act (RA
9262);
6. ) Anti-Trafficking in Persons Especially Women and
Children (RA 9208).
The Supreme Court also issued special rules on the examination
of children witnesses. Records of cases involving children are strictly
confidential.
X. A. 1. RA 9344 - THE JUVENILE JUSTICE AND WELFARE ACT

Minors exempt from criminal liability
The following Children In Conflict with the Law (CICL) are
exempt from criminal liability:
1. Those who are fifteen (15) years old or below;
2. Those who are over fifteen (15) years old and under eighteen
(18) years old, when acting without discernment;
3. Those who committed acts punished under Article 202 of
the Revised Penal Code;
INTkMHA't V l H A l . A b b VHHJW1HV, Ml .‘UA ft
4 Ttiums who committed tuts puni«hed under l'f)156%

5. Thom? who committed act# putmhed under PD WVt,
The iiê of conditional criminal liability

RA 9344 increased the ugt* ofconditional criminal
resp'/nsribnltty to over fifteen (15) yearn up to lean than eighteen
( 1 8 ) years,A Children In Conflict with the Law (CICL) within this age
range may incur mitigated criminal liability if he acta with
discernment The fact of discernment has first to be established by
endorsing the child to a local social worker who shall interview the
child and map out a program on restorative justice that would fit the
CICL. If the child did not act with discernment, he shall be exempt
from criminal liability, in the same way that children fifteen (15) years
old or below are also exempt.
Rcstora tive justice

Cognizant that children have a lot of future ahead of them, and
that their voluntariness in the commission of a crime and mens rea may
be clouded at that stage, the law provides a restorative justice
mechanism for diversion and intervention programs that the CICL
must undergo before a determination is made on whether or not he
should serve the sentence upon reaching the age of majority.
Restorativejustiatis a concept aimed at the healing of all those
affected by a crime: the victim, the offender, the families of both the
victim and the offender, and the community. It does not necessarily
do away with'RetnSutive Justicfr, which calls for the acceptance by
the offender of the consequences of his acts. Neither does it stop
there. For when a minor offender is just sent to jail for an offense, it
almost always leads to him to a point of no return, affecting not only
him but also his family. On the part of the victim, the victim’s family
and the community, it would tend to develop a sense Of justice that
is based on vengeance instead of closure, a frame oLmind that is
always looking back instead of moving forward.
Restorative Justice likewise âims to -restore the damage done
to the victim and the community, and therefore must involve them.
Considering that the process might be slow and painful and even
traumatic at some stage, extra caution should be done
CHAPTER X 107
in implementing the diversion or intervention program. For this

reason, the government must undertake to hire more professionals
to conduct the program and must give more logistical support in
order to meet the standards set forth by law.
From a more holistic view, restorative justice is regarded as
a tool to prevent more crimes from happening. The argument in
support of this is that the healing process could stop more
aggressions from both sides from happening, and that the CICL’s
return to the mainstream of society instead of his further
“conditioning” in prison could make him a better person.
Challenges in the implementation ofRA 9344

While Restorative Justice sounds like the perfect
rehabilitation process, a haphazard implementation thereof can be
double-edged. It is possible that CICL’s see this as the helplessness
of authorities to do something about their offense, and might give
them some sense of impunity. Instead of reforming them, they
might end up mocking the system.
On the part of the victim, there is a tendency for him to feel
unprotected by law. As it is, many people are already protesting
that offenders enjoy more protection from the law compared to
victims. When people feel that the law is not sensitive to the
feelings of victims, when they feel that judicial proceedings are
nothing to them but a long, tedious, expensive circus, there is that
real danger that victims would take the law into their own hands,
or that they cash out on their cases.
If Restorative Justice has to have any meaningful impact, it
is important that authorities understand that there is a child that
needs to. be seriously reformed, there is a victim that needs to be
healed,'and there is a society that deserves a safer place not only
for the present, but for the future generations as well. Hiring one
untrained political supporter to do the job for the whole local
government unit composed of tens of thousands of residents, sans
facilities and support, is not going to fly at all.
Like any other law, the provisions of RA 9344 have been
abused by criminal elements who would hire minors to perpetrate
crimes.
10$
INTERNATIONAL AND HHUPPINIO HUMAN HIOJJT8 LAW#
In drag lairs. police reports have it that minors are used as couriers
and peddlers. There are still a lot of gaps that havo to bo addressed
in order for this law to be successfully implemented, foremost of
which are logistical in nature. The law talks about facilities that are
practically non-existent in many municipalities. It talks about the
perfect diversion and intervention programs but without the
necessary trained personnel to conduct the same.
Recently, there is a move to lower age of criminal liability from
over 15 years of age to over 12 years of age. While there is a strong
support for this move, owing to the observed difficulty in
implementing the provisions of RA 9344, but which difficulty is
actually caused by logistical inadequacies rather than mistakes in
determining the age of responsibility, the move also faces very
strong opposition from children’s rights advocates. Instead of
addressing the logistical concerns and challenges, it seems that
some lawmakers would prefer the shortcut of sending the CICL’s to
jails instead, and which would still actually bring us to the same
issue of logistics, as more children inmates would still require the
construction of more facilities, more supplies and more personnel.
X. A. 2. RA7610 - THE ANTI-CHILD ABUSE LAW

This is a landmark legislation for the protection of children
from abuses. Many of the crimes incorporated under this law are
already punished in the Revised Penal Code, but when the victim is
a child, special laws and rules apply. The penalties are higher, if
only to stress the greater need to protect from cruelty and abuses.
“CfijTd^buse^ refers to the maltreatment, whether habitual
or not, of the chilcfwhich includes any of the following:
(1) Psychological and physical abuse, neglect, cruelty,
sexual abuse, and emotional maltreatment;
(2) Any act by deeds pr words which debases, degrades,
or demeans the intrinsic worth and dignity of a child as a
human being;
(3) Unreasonable! deprivation of his basic needs for
survival, such as food and shelter; or
CHAPTER X 109
(4) Failure to immediately give(medical treatment to

an injured child resulting in serious impairment of his
growth and development or in his permanent incapacity
or death.74
Iii the case of Sanchez vs. People,75 citing Araneta vs.
People76 the Supreme Court emphasized that there are four (4)
kinds of .crimes falling-underS^ti^lQ-,JRA 7610jto wit:'
‘The provision punishes also four distinct acts, i.e., (a)
child abuse. (b) child cruelty, (c) child |xpJmtaffqi| and (d)
being
respgnsiblejfor^(m& child's
development.
The Rules and Regulations of the questioned statute distinctly
and
separately defined child abuse, cruelty and exploitation just to
show
X. A. 3. RA 9321 — ELIMINATION OF THE WORST FORMS OF
that these three acts are different from one another and from
CHILD LABOR
the act
prejudicial to the child’sLabor
The International Organization (ILO) adopted the
development.”
Convention Concerning the Prohibition and Immediate Action
for the Elimination of the Worst Forms of Child Labor (also
known as C-182 or Worst Forms of Child Labor Convention) in
1999. This convention was ratified by the Philippines on
November 28, 2000.
On December 19, 2003, Republic Act 9231 entitled- “An Act
Providing for the Elimination of the Worst Forms of Child Labor
and Affording Stronger Protection for the Working Child,” was
approved. The said law enumerated and defined the worst forms
of child labor, the working age of children and the persons whom
they can work for, the hours of work, the ownership, usage and
management of the working phild’s income, and penal provisions
for violations of the law.
The phrase “worst forms of childiabor” shall refer to any of
the following: 8 ; ,
“(1) All forms of<?::sMvei^, as defined under the ‘Anti-
trafficking in Persons Act of2003/ or practices similar to
slavery
74$ection 3, RA 7610.
75G.R. NO. 179090, June 5, 2009.
76G. R. NO. 174205, June 27, 2008
110 INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAWg j
such as sale and trafficking of children, debt bondage

and serfdom and forced or compulsory labor,
including recruitment of children for use in armed
conflict; or
*\2) The; use^ procuring, offering or exposing of
a child for prostitution, for the production of
pornography or for pornographic performances; or
“(3) The use, procuring or offering of a child for
illegal I or illicit activities, including the production and
trafficking of dangerous drugs and volatile substances
prohibited under existing laws; or
w(4) Wdrk which, by its nature or the circumstances in I which
it is carried out, is hazardous or likely to be harmful to j the health,

safety or morals of children, such that it:
“a) Debases, degrades or demeans the intrinsic I worth
and dignity of a child as a human being; I or
“b) Exposes the child to physical, emotional or sexual
abuse, or is found to be highly stressful I
psychologically or may prejudice morals; or
“c) Is performed underground, underwater or at I
dangerous heights; or
1|
“d) Involves the use of dangerous machinery, I
equipment and tools such as power-driven or H
explosive power-actuated tools; or
“e) Exposes the child to physical danger such as,
but not limited to the dangerous feats of
balancing, physical strength or contortion, or
which requires the manual transport of heavy
loads; or qo
af) Is performed in an unhealthy environment
exposing the child to hazardous working B

conditions, elements, substances, co-agents or B
processes involving ionizing, radiation, fire,
flammable substances, noxious components I] and
the like, or to extreme temperatures, noise B levels,
or vibrations; or
fl
CHAPTER X 111
Mg) Is performed under particularly difficult

conditions; or
“h) Exposes the child to biological agents such as
bacteria, fungi, viruses, protozoans, nematodes
and other parasites; or
ai) Involves the manufacture or handling of
explosives and other pyrotechnic products.”77
X. A. 4. RA 9975 -ANTI-CHILD PORNOGRAPHY

<ft~ .
“Child pornography” refers to any representation, whether
visual, audio, or written combination thereof, by electronic,
mechanical, digital, optical, magnetic or any other means, of child
engaged or involved in real or simulated explicit sexual activities. 78
The Anti-Child Pornography Act of 2009 not only protects
children who are victims of pornographic exhibitions, but also those
who, regardless of age, are presented or portrayed as a child in
such exhibitions.
Section 3 provides that the term “‘Child’ refers to a person
below eighteen (18) years of age or over, but is unable to fully take
care of himself/herself from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or
condition.
For the purpose of this Act, a child shall also refer to:
(1) A person regardless of age who is presented, depicted or portrayed
as a child as defined herein; and
(2) Computer-generated, digitally or manually crafted
images or graphics of a person who is represented or who
is made to appear to be a child as defined herein.”
Violations of the law carry heavy penalties. The law also
requires the inspection and regulation of internet cafes and kiosks
by local government units in order to safeguard the children who
are using these commercial establishments. Internet service
providers, internet content hosts, mall owners and other
establishments are
^Section 3, RA 9231, amending RA 7610.

78
Section 3, RA 9775.
INTERNATIONAL AND i'ltlt.llTINK HUMAN IIIOIITH LAWH
reûirvd to **u>p child pornography activitioM committed in their

p a n d notify tho authorities immediately, under puin of
penalty.
\ A. 5 RA KX164 * EXPANDED ANTI-TRAFFICKING IN I
PERSONS, ESPECIALLY WOMEN AND CHILDREN
The Philippine** is currently in Tier 2 in tho US Global
Trafficking in Persons Report, a standing which is deemed an
improvement of its previous Tier 2 Watchlist ranking in 2009 and
2010 This means that the country has complied with the minimum
standards set by the lTS Trafficking Victims Protection Act, but that j
human trafficking still persists. The ranking comes with financial axi
from the United States, which could have been diminished if not
totally withheld if the country retained its Tier 2 Watchlist for a
certain period.
As a country sending roughly ten percent (10%) of its population j
abroad to live and/or work, the Philippines is one of the biggest j
source of trafficked victims. It is also, to a lesser extent, a transit point
and a destination. The domestic cases of trafficking vary from
commercial sexual exploitation, to mail-order bride schemes, to organ
trafficking and debt bondage.
RA 10364, which was approved by President Benigno S.
Aquino III on February 6,2013, defines trafficking in persons as
“the recruitment, obtaining, hiring, providing, offering,
transportation, transfer, maintaining, harboring, or receipt of
persons with or without thevictim’s consent or knowledge, within
or across national borders by means of threat, or use of force, or
other forms of coercion, abduction, fraud, deception, abuse of power
or of position, taking advantage of the vulnerability of the person
having control over another person for the purpose of exploitation
which includes at a minimum, the explotation or the prostitution of
others or other forms of sexual exploitation, forced labor or
services, slavery, servitude or the removal or sale of organs.
The recruitment, transportation, transfer, harboring,
adoption or receipt of a child for the purpose of exploitation or
when the adoption is induced by any form of consideration for
exploitative pursposes shall also be considered as Trafficking in
persons' even if it does not involve any of the means set forth in
the preceding paragraph.w (Section 3, RA 10364)
CHAPTER X 113
RA 10364 punishes four (4) classes of acts, namely:

a) Acts of human trafficking under Section 4;
b) Acts that promote human trafficking under Section 8;
c) Causing the publication of the identity of the victim in a
human trafficking case by the media under Section 10;
d) Use of trafficked persons under Section 13.
Acts which fall under the category of Qualified Trafficking
under Section 6 of RA 10364 carry the penalty of life imprisonment
and a fine of not less than Two million pesos (P2,000,000.00) but not
more than Five million pesos (P5,000,000.00).
Under the 2013 expanded law on trafficking, accomplices and
accesories also incur criminal liability.
A new section on the extraterritorial application of the law on
trafficking is provided, as follows: - "The State shall exercise
jurisdiction over any act defined and penalized under this Act, even
if committed outside the Philippines and whether or not such act or
acts constitute an offense at the place of commission, the crime being
a continuing offense, having been commenced in the Philippines and
other elements having been committed in another country, if the
suspect or accused:
; “(a) Is a Filipino citizen; or
“(b) Is a permanent resident of the Philippines; or
“(c) Has committed the act against a citizen of the Philippines.
“No prosecution may be commenced against a person under
this section if a foreign goverment, in accordance with jurisdiction
recognized by the Philippines, has prosecuted or is prosecuting such
person for the conduct constituting such offense, except upon the
approval of the Secretary of Justice.
“The goverment may surrender or extradite persons accused
of trafficking in the Philippines to the appropriate international
court if any, or to another State pursuant to the applicable
extradition laws and treaties.” (Section 23, RA 10364)
CHAPTER XI
THE PROTECTION OF WOMEN’S RIGHTS UNDER
PHILIPPINE LAWS
XI. A. THE RIGHTS OF WOMEN
The Philippines has one of the best records on womertt ! rights

protection.
In the World Economic Forum's Global Gender Gap Report in j
2012, the Philippines is No. 1 in Asia in both education and health of
women, and is No. 8 in the global index. Filipino women also did well in
economic participation and opportunity and political empowerment.
Despite the more open-minded culture of Filipinos towards
women empowerment, there are still bigots even in some supposedly {
“educated” sectors of society. For instance, in one forum on women's f
rights, one male public official publicly stated that he would never I
“allow his wife to behave in a manner not acceptable to him.” Also, |
domestic violence still exists in some homes.
| Women
.
Convention on the Elimination of Discrimination Against

(CEDAW)
The aim of this convention is to guarantee equal rights of men 1 and
women. This is in furtherance of the declaration in UDHR that r
everyone is entitled to the rights and freedoms without distinction \ of
any kind, including that based on sex, noting that in “situations | of
poverty, women have the least access to food, health, education, 1 training
and opportunities for employment and other needs” and | cognizant that
“a change in the traditional role of men as well as the | role of women in
society and in the family is needed to achieve full § equality between men
and women ”
CEDAW enjoins State Parties to “take appropriate measures I
to modify the social and cultural patterns of conduct of men and t
women, with a view to achieving the elimination of prejudices and I
customary and all other practices which are based on the idea of the j
CHAPTER XI 115
THE PROTECTION OF WOMEN'S RIGHTS UNDER PHILIPPINE LAWS
inferiority or the superiority of wither of the sexes or on stereotyped

roles for men and women.”79
Article 6 of CEDAW further provides that, “parties shall take all
appropriate measures, including legislation, to suppress all forms of
traffick in women and exploitation ofprostitution of women.”
The question is: Does CEDAW violate the equal protection
clause of the Constitution? As discussed in Chapter V under the topic
Equal Protection Clause, equality does not mean uniformity, and for
as long as the requirements for a valid classification are met, there can
be reasonable classification for the application of a law. However, it
must also be acknowledged that women are treated differently in
different countries. In some countries, women need more protection
than in others. In most of Scandinavia, women equality has almost, if
not already, been achieved. When equality has been achieved, it is
likely that the “classification” would not be that crucial anymore.
XI. A. 1. RA9262 - ANTI-VIOLENCE AGAINST WOMEN AND

THEIR CHILDREN ACT OF 2004
On March 8, 2004, the law punishing violence against women was
approved. It punishes “any act or a series of acts committed by any
person-against a woman who is his wife, former wife, or against a woman
with whom the person has or had afsexual or dating relationship, or with
whom he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode,'which result in or is
likely to result in physical, sexual, psychological harm or suffering, or
economic abuse including threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty.”89 ,,y
RA 9262 also prbvides for remedies in order to ensure the safety
and security of the victim. A temporary or permanent protection order
may be issued by the court if the situation calls for it. In order to make
the remedy%iOTe accessible, the law even authorizes the barangays to
issue the barangay protection order (BPO), for a limited duration of 15
days, after which the victim may ask another protection order from the
court.
reArticle
5, Convention on the Elimination of
Discrimination Against Women. “Section 3, RA
9262.
p
INTERNATIONAL AN!) IHIBMPPINI HUMAN RIGHTS jjm
One of the new provisions of the law is the special justifying I

circumstance of Battered Women Syndrome (BW$) which could I
exculpate a woman offender from criminal liability. The courts shall I be
assisted by psychiatrists or psychologists in order to determine 1 BWS in
a woman. But even if she has BWS, she may still gain custody I and
parental authority over her children. On the other hand, the I person who
perpetrated the abuse against the woman suffering from 1 BWS shall not
have custody over the minor children.81
The Magna Carta of Women

The Magna Carta of Women (RA 9710) was passed on August 1
14,2009. Its salient features include the implementation of programs H
for women empowerment, the elimination of discrimination against 1
women, gender equality and gender equity.
Women empowerment “refers to the provision, availability, and H
accessibility of opportunities, services, and observance of human 1 rights
which enable women to actively participate and contribute 1 to the
political, economic, social, and cultural development of the H nation as
well as those which shall provide them equal access to 1 ownership,
management, and control of production, and of material I and
informational resources and benefits in the family, community, I and
society.”82
Discrimination Against Women “refers to any gender-based 11
distinction, exclusionf o'rlrestriction which has the effect or purpose 1 of
impairing or nullifying the recognition, enjoyment, or exercise by 1
women, irrespective of their marital status, on a basis of equality 1 of men
and women, of human rights and fundamental freedoms in 1 the political,
economic, social, cultural,, civil, or any other field. It 1 includes any act or
omission, including by law, policy, administrative H measure, or practice,
that directly or indirectly excludes or restricts I women in the recognition
and promotion of their rights and their I access to and enjoyment of
opportunitiei^benefits, or privileges. A I measure or practice of general
application is discrimination against 19 women if it fails to provide for
mechanisms to offset or address sex | or gender-based disadvantages or
limitations of women, as a result |
81
Article 28, RA 9262.
82
Section 4, Chapter II, RA
9710.
117
CHAPTER XI
THE PROTECTION OF WOMEN’S RIGHTS UNDER PHILIPPINE LAWS
I
I of which women are denied or restricted in the recognition and I protection
of their rights and in their access to and enjoyment of I opportunities,
benefits, or privileges; or women, more than men, are | shown to have
suffered the greater adverse effects of those measures | or practices;
Provided, finally, That discrimination compounded by | or intersecting with
other grounds, status, or condition, such as | ethnicity, age, poverty, or
religion shall be considered discrimination against women under this Act.”83
“Gender Equity” refers to the ^61iciesy'nstruments,?programs,
! /“Services, and-Actions that address the disadvantaged position of women
in society by providing preferential treatmentrand affirmative- action.
Such temporary special measures aimed at accelerating de facto equality
between men and women shall not be considered discriminatory but shall
in no way entail as a consequence the maintenance of unequal or separate
standards. These measures shall be discontinued when the objectives of
equality of opportunity and treatment have been achieved. 84
RA 9710 further emphasizes the women’s rights to health, equal
treatment beforethe .law, equal access to education, ^scholarships and
training,..andequal rights in matters“relating to marriage and family
relations. Furthermore, it grants special leave benefits equivalent to two
(2) months with full pay, to women undergoing medical treatment for
gynecological disorders, provided that she has been employed with the
same entity in the last six (6) months during thel2-yearperiod.85
XI. A. 2. RA 8972 - The “Solo Parents Welfare Act of 2000”

The Solo Parents Welfare A took effect on November 28, 2000. It
provides for livelihood and self-employment opportunities, skills
development trainings, employment related benefits such as parental leaves
and flexible hours of work, psychosocial, educational, health, and housing
benefits. ' ;]; ': ^
A solo parent is “any individual who falls under any of the following
categories:
“Ibid.
“Ibid.
“Section 18, RA 9710.
INTKHNATIONAI# AND J'niIJI'J'iNK HUMAN Hid NTH LAW$
{\) A woman who gives birth HH a result of rape and other

crimes against chastity oven without a final conviction of
the offender: Provided, That the mother keeps and raise#
the child;
(2) Parent left solo or alone with the responsibility of
parenthood due to death of spouse;
parenthood while the spouse is detained or is serving
sentence for a criminal conviction for at least one (1)
year;
parenthood due to physical and/or mental incapacity of
spouse as certified by a public medical practitioner;
parenthood due to legal separation or de facto separation
from spouse for at least one (1) year, as long as he/she is
entrusted with the custody of the children;
parenthood due to declaration of nullity or annulment of
marriage as decreed by a court or by a church as long as
he/she is entrusted with the custody of the children;
parenthood due to abandonment of spouse for at least
one (1) year;
(8) Unmarried mother/father who has preferred to keep and
rear her/his child/children instead of having others care
for them or give them up to a welfare institution;
(9) Any other person who solely provides parental care and
support to a child or children;
(10) Any family member who assumes the responsibility of
head of family as a result of the death, abandonment,
disappearance or prolonged absence of the parents or
solo parent.”86
Section 3, RA 8972.
CHAPTER XI 119
THE PROTECTION OF WOMEN’S RIGHTS UNDER PHILIPPINE LAWS
LGBT (Lesbian,Gay, Bisexual and Transgender)

RIGHTS
Presently, there is no human rights treaty on the rights of
LGBTs, or lesbians, gays, bisexuals, and transgenders. There are still
countries that penalize being gay, or ostracize gay people. There is,
however, a set of principles formulated by human rights experts on gay
rights, known as the Yogyakarta Principles.
The Yogyakarta Principles is a collection of 29 principles
that
declares the rights of LGBT. Many of these rights are found in the
Universal Declaration of Human Rights and other human rights
treaties. Interestingly, the Principles include the right to found a
family and the right to protection from medical abuses.
In deeply religious Philippines, gays have surprisingly gained
considerable degree of acceptance from society, especially the younger
set, who acknowledges the contributions of gays in the economy. Gays
are even accepted in the police force and other *
macho”professions. This is true with or without any law
prohibiting discrimination against them. The Supreme Court made
inroads in eliminating discrimination against gays with its ruling in
Ang Ladlad vs. COMELEC.81 This is a far cry from the situation of the
LGBT sector in other countries, which go as far tolerate, if not
authorize, the infliction of physical harm and persecution against
LGBT.
T
OTriv tyl
"G.R. NO. 190582, April 8,2010.

CHAPTER XII
It is estimated that one (1) out of ten (10) Filipinos resides or

works abroad. With the Filipino population officially placed at over 90
million as of the latest census in 2012, this translates to more than
nine (9) million Filipinos working and/or living abroad. There is
probably no country in the world where there is no Filipino. Even in
the small islands of the Caribbean, one can find Filipino restaurants
and money remittance centers. Truth to tell, the main reason for the
country's healthy dollar reserve is the remittances from the Overseas
Filipino Workers (OFWs). They are called the modern day heroes or
“bagong bayard ” Indeed, when one chooses to live in a strange land,
outside his comfort zone and away from his loved ones and
contributes to the country's economy, he deserves the country's
gratitude.
In their situation, migrant workers are a class of people that
need special protection for their human rights. They are a class of
people who are temporarily and partially outside the mantle of
coverage of their home country's protection and have to rely on the
protection of the country where they are currently based. Even if they
are not citizens of that country, they are part of a labor force that
runs and contributes to the economy of that country. In many cases in
the Middle East, Filipino workers are instrumental in the building of
cities and making homes comfortable. In countries such as the United
States, Filipino workers contribute to the health and well-being of the
nation. Thus, it is important that international laws be in place for
this special class of people.
XII. A. INTERNATIONAL CONVENTION ON THE PROTECTION

OF THE RIGHTS OF ALL MIGRANT WORKERS AND
MEMBERS OF THEIR FAMILIES
On December 18, 1990, the United Nations General Assembly
(UNGA) adopted the International Convention on the Protection of
The Rights of All Migrant Workers and Members of Their Families
(ICPMW). The treaty entered into force on July 1, 2003 and to date
has only 45 ratifications. The Philippines is among the first five (5)
120
CHAPTER XII 121
countries to ratify this covenant. It is sad to note though that most of the
member States are the sending countries of migrant workers. None of the
big receiving countries have ratified the treaty so far. The full
implementation of the covenant is thus hindered by the apparent
one-sidedness of the parties.
Under the covenant, a “migrant worker” is a person who is to be
engaged, is engaged or has been engaged in a remunerated activity in a
State of which he or she is not a national.®8
There are different classes of migrant workers, to wit:
(a) The term “frontier worker” refers to a migrant worker who
retains his or her habitual residence in a neighbouring State
to which he or she normally returns everyday or at least once
a week; ,
(b) The term “seasonal worker” refers to a migrant worker whose
work by its character is dependent on seasonal conditions
and is performed only during part of the year;
(c) The term “seafarer,” which includes a fisherman, refers to a
migrant worker employed on board a vessel registered in a
State of which he or she is not a national;
(d) The term “worker on an offshore installation” refers to a
migrant worker employed on an offshore installation that is
under the jurisdiction of a State of which he or she
H J| . is not a national; 4 ; i ; r
(e) The term “itinerant worker” refers to a migrant worker who,
having his or her habitual residence in one State, has to
travel to another State or States for short periods, owing to
the nature of his or her occupation;
;>(f) The term “project-tied worker” refers to a migrant worker
admitted to a State of employment for a defined period to
work solely on a specific project being carried out in that
State by his or her employer;
(g) The term “specified-employment worker” refers to a migrant
worker: 88
88Article
2, International Convention for the Protection of the Rights of Migrant
Workers and Members of their Families.
m
INTERNATIONAL AND l’llIUl'PINlC HUMAN MOUTH UW#
i\) Who hail boon aont by his or her employer for Q ivstricted
and defined period of lime to a State of employment to
undertake u specific uaaignmenUu:
duty;
lu) Who engages for a restricted and defined period of time in
work that requires professional, commercial, technical, or
other highly specialized skill; or
(iii) Who, upon the request of his or her employer in the State of
employment, engages for a restricted and defined period
of time in work whose nature is transitory or brief; and
who is required to depart from the State of employment
either at the expiration of his or her authorized period of
stay, or earlier if he or she no longer undertakes that
specific assignment or duty or engages in that work;
(h) The term “self-employed worker” refers to a migrant worker who
is engaged in a remunerated activity otherwise than under a
contract of employment and who earns his or her living
through this activity normally working alone or together with
members of his or her family, and to any other migrant worker
recognized as self-employed by applicable legislation of the
State of employment or bilateral or multilateral agreements.
The rights of migrant workers under ICPMW include: the right to
life; right against slavery and involuntary servitude; right against
torture; freedom of thought, conscience and religion; freedom of
expression; right to information; right to property; and right to privacy
and security.
The Convention further provides that in the event that a migrant
worker is arrested, the representatives of his State must be informed
without delay of such fact, and he must be given the opportunity to
communicate with them. Should his incarceration pending trial be
provided in the national laws of the country where he committed the
crime, he should be separated from convicts.
Failure to fulfilLa contractual obligation is not a valid ground
for imprisonment. Hence, failure to comply with the terms of the
CHAPTER XII 123
THE RIGHTS OF MIGRANT
WORKERS
work contract may give rise to a civil obligation, but does not
justify imprisonment.
! Travel documents, passports, and other documents
authorizing the stay of a migrant worker or his family in a

State cannot be removed, confiscated, or destroyed by his
employer. Only public officials can do so, when duly authorized
under the law.
CHAPTER XIII
"Persons with disabilities” is defined in Article 1 of the

Convention on the Rights of Persons With Disabilities (CRPD) as
those V/»o have long-term physical, mental, intellectual or sensory
impairments which in interaction with various barriers may hinder
their full and effective participation in society on an equal basis with
othe rs w
Owing to the prejudice and discrimination that persons with
disabilities had been subjected to, it is appropriate to extend to them
special protection under International Human Rights Law. Among
the measures deemed effective in combatting stereotyping is
awareness-raising.
It is sometimes disheartening to hear about the prejudices that
disabled persons go through in their lives just to interact with
society. In one of the meetings of this author with a group
composed of disabled persons in Minneapolis who are engaged in
the advocacy of promoting the rights of the disabled, one girl told of
how she was advised to undergo a medical procedure that will
incapacitate her to bear a child because she was “not fit to have
one”; another told of how some weird cult or religious people
approached her at a bus stop to do a “pray-over” on her, as if she
was possessed by some demon. This wrong perception of our
disabled brothers and sisters is the root cause of discrimination
against them. In the end, this is not only unhealthy for both society
and the disabled people, but unproductive as well. World Bank
President Robert Zoellick said in a forum at the University of
Minnesota that, “by discriminating against the disabled, we are
excluding a segment of our society* from contributing their talent.
XIII. A. CONVENTION ON THE RIGHTS OF PERSONS WITH

DISABILITIES
The Convention on The Rights of Persons With Disabilities
(CRPD) entered into force on May 3,2008. Although a relatively
new treaty, it already has over a hundred signatories and
ratifications.
124
CHAPTER XU1 125
The*Philippines ratified this treaty on April 15, 2008, a couple of

weeks before it entered into force. The purpose of the Convention is, as
stated in Article 1, “to promote, protect and ensure the full and equal
enjoyment of all human rights and fundamental freedoms by all
persons with disabilities, and to promote respect for their inherent
digrdty*
| Among the rights of persons with disabilities recognized under
the covenant are the following:
fllk- Right to equality and non-discrimination;
■ ilfridhi
Right to participate in political and public life; >

Right to work and employment;
Right to accessibility;, •'
15^ Right against exploitation, violence and abuse;
VJr
$T Right to the respect for privacy; 1
A
m Right to the respeettfor home and family;
, „ i V(.; K., ■ v
m .Right j f
to education; .
u Right to habilitation and rehabilitation;
Right to an adequate standard of living and social
protection;
Right to participate in cultural life, recreation, leisure
and sports.
Under the covenant, States Parties are required to submit a
comprehensive report to the Committee on the Rights of Persons
With Disabilities through the Secretary-General of the United
Nations on the measures taken by the Party in order to comply
with its obligations. The Committee will consider the report and
will make recommendations and suggestions as may be
appropriate under the circumstances to the State Party. The
Committee will also submit a report to the United Nations
General Assembly on its activities and the reports by and
recommendations to the States Parties.
The Optional Protocol to the Convention on the Rights of
Persons With Disabilities provides the procedure for
communications from individuals and groups who claim to be
victims of violations by the
126
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LMtfj
State Party of its obligations under the convention. It entered into

force on May 3, 2008. Under the Optional Protocol, a State Party may
be investigated for such violations, provided that domestic remedies
be exhausted first. A State Party to the main convention who has not
ratified the Optional Protocol cannot be brought under the jurisdiction
of the Committee on the Convention on the Rights of Persons With
Disabilities.
The Philippines passed Republic Act 7277, otherwise known as
the Magna Carta of Disabled Persons, in compliance with its
obligations under the convention. This law was later amended by
Republic Act 9442 and 10070. Among the salient features of the law
The right to equal opportunity for employment;

3if7 Reserving 5% of casual or contractual positions to disabled
persons by agencies or offices engaged in social
development;
3. Giving incentives to employers who employ disabled persons
by deducting from gross income 25% of the salaries paid to
such employees for tax purposes;
yf Providing for scholarship grants for disabled persons;
Encouraging TV stations to provide sign-language insets
or subtitles in at least one (1) newscast a day and special
programs covering events of national significance;
Encouraging telephone companies to install special
telephones for the hearing-impaired;
7<^ Providing free postal services to marginalized disabled S'
persons on certain articles sent or delivered through the postal
system;
^ Giving at least 20% discount at hotels and lodging houses,
cinemas, concert halls, carnivals and restaurants;
.9: Giving at least 20% discount for purchases of medicines
for hospitalization and medical care, and for air and sea
travel;
10. Providing for penalties for violations of the provision*

thereof.
CHAPTER XIII 127
The Philippine Constitution provides that Congress shall

design a procedure for disabled persons to vote without the
assistance of others, in order to assure secrecy of his ballot
and prevent his will from being tampered with.89
Paragraph 2, Section 2, Article V, 1987 Philippine Constitution.

CHAPTER XIV
The International Convention Against Torture and Other Cruel,

Inhuman and Degrading Treatment and Punishment prohibits the me of
torture at all times, even in times of war or when there is threat of war or
internal political instability or any other public emergency* The use of
torture cannot be justified even if there is an order from a superior officer
or public authority.90 91
“Torture” means any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed
or is suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only from,
inherent in or incidental to lawful sanctions.92
Aside from torture, the Convention also prohibits cruel, inhuman
and degrading punishment or treatment (CID). The acts under this
category usually do not involve the infliction of physical injuries, but still
cause the victim to undergo physical or mental suffering. Walking a
naked victim on a leash may not amount to torture, but qualifies as CID.
A CID which is repeatedly committed or committed over a long
period of time may amount to torture. For example, the chaining of a
victim in a painful position for long hours may amount to torture.
Solitary confinement in a bartolina, with limited air and sun, and for a
long period, could amount to torture. This is more reprehensible in cases
were the victim has not yet been convicted, and thus is not yet serving a
penalty. Solitary confinement may be justified for health
90Article.
2, No. 2, Convention Against Torture or Other Cruel, Inhuman or Degrading
Treatment and Punishment.
9'lbid.
92Article 1, ibid.
128
CHAPTER XIV 129
or security concerns, but must be done in emergency situations for short

durations only.
When committed during an international armed conflict. torture can
be considered as a “grave breach,” which is prohibited under another
international law, the Geneva Convention of 1949. Even if a State has not
ratified the CAT, it may still be liable under the Geneva Convention under
this circumstance.
If the torture is committed in a systematic or widespread manner, it
could amount to a “crime against humanity,” a crime punished under the
Rome Statute which created the International Criminal Court (ICC). Even
if there is no armed conflict, whether international or internal, this crime
may be brought before the ICC.
Torture is also regarded as a jus cogens crime. States may proceed
against another State who commits torture, by invoking universal
jurisdiction. In the case of the Guantanamo prison torture, U.S.
personalities like the former President George Bush and the legal
experts who wrote the "torture memos” have been warned that they will
be arrested and prosecuted when they enter certain countries.
XIV. A. CONVENTION AGAINST TORTURE AND OTHER CRUEL,

INHUMAN AND DEGRADING TREATMENT AND
PUNISHMENT (CAT)
1 The Convention against torture entered into force on June 26,
1997. It is non-derogable and the principles of extraterritoriality and
universal jurisdiction may apply. Confessions and information
extracted as a result of torture are inadmissible as evidence in court.
I If a person is in danger of being tortured in one country and flees to
another, the receiving country cannot return him to the country of
origin if the threat of being tortured still exists. Non- refoulement
applies provided that the suffering is not incidental to a lawful sanction
or punishment.93
93
Article 3, ibid.
XIV. B. RA 9745 - THE ANTI-TORTURE ACT OF 2009

As a signatory to the Convention against torture, the Philippines has
the obligation to comply with Article 4 which states that States Parties
must ensure that all acts of torture are punished as crimes in the country. 94
In view of this, the Philippines passed and approved Republic Act
9745 on November 10, 2009. Among its salient features are:
1. The crime of torture is an independent and separate crime. It
cannot be absorbed or complexed with another crime; nor does
double jeopardy apply where the act is also punished and
prosecuted as another crime;95
2. When felonies classified as Crimes Against Persons or Crimes
Against Personal Liberty and Security under the Revised
Penal Code are committed with the use of torture, the penalty
for such crimes shall be imposed in its maximum;96
3. No amnesty shall be extended to perpetrators of torture; 97
4. Applications for writs of habeas corpus, amparo and habeas
data in behalf of a victim of torture shall be disposed of
speedily and shall be implemented immediately;98
5. Superior officers, whether immediate or otherwise, may be held
liable as principals for the crime of torture on the basis of
Command Responsibility;99
6. Only public officials or employees may be held liable as
accessories.100
94
Article 4, ibid.
95
Section 15, RA 9745.
96
Section 22, ibid.
97
Section 16, ibid.
"Section 10, ibid.
"Section 13, ibid.
™lbid.
CHAPTER XV
THE RIGHT AGAINST ENFORCED
DISAPPEARANCES
During the Martial Law years, many persons who were

opposing the perceived excesses of the regime were reported to have
been abducted and killed. As an offshoot, the relatives of the victims
filed a damages case against former President Ferdinand Marcos in
the United States, invoking the Alien Tort Statute, and won hefty
amounts as damages.
The Philippines was in the Top Ten list of countries where
enforced disappearances and extrajudicial killings are happening.
XV. A. INTERNATIONAL CONVENTION FOR THE PRO-

TECTION OF ALL PERSONS FROM ENFORCED DIS-
APPEARANCE
I “Enforced disappearance is considered to be the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or by
persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation
of liberty or by concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of the law *
I The two (2) components of the crime of enforced disappearance
are:
! 1) The abduction of a person by State authorities or State-
sanctioned persons;
2) The denial or the concealment of the whereabouts of the
missing person.
[ Enforced disappearance shall never be allowed, even under
exceptional circumstances such as war or threat thereof, internal
political stability or public emergency.101
! The commission of enforced disappearances may grow to a level
of a crime against humanity. “The widespread or systematic
Ârticle 1, International Convention for the Protection of All Persons from Enforced Disappearance.
131
practice of enforced disappearance constitutes a crime against humanity as

defined in applicable international law and shall attract the consequences
provided for under such applicable international law”102
The persons who can be held liable for enforced disappearance
are:
a) Those directly responsible for committing it; or
b) A superior who —
(i) Knew or disregarded information that his
subordinates were committing or about to commit it;
(ii) Exercised responsibility over activities concerned
with the disappearance; and
(iii) Failed to take measures to prevent the commission
thereof.103
Military commanders even have higher standards of
responsibility for enforced disappearances under international
law.104 105
Those accused of enforced disappearance may be extradited if
they leave the country, as enforced disappearance is considered a
crime and not a political offense.
The victim in enforced disappearance is not only the
disappeared person himself (or desaparecido,a term coined in
Argentina for those who vanished during the Operation Condor of
the Dirty War), but includes “those who suffered harm as the direct result
of an enforced disappearance”106
In the case of Kurt vs. Turkey,106the European Court of Human
Rights held that Mrs. Kurt suffered severe mental distress and
anguish caused by the uncertainty, doubt and apprehension of her
son’s disappearance, and therefore was herself a victim of torture,
albeit psychological.
102
Article 5, International Convention for the Protection of All Persons from Enforced Disappearance.
103
Article 6, ibid.
104
/b/d.
105
Article 24, ibid.
1O6
(l5/l997/799/l002), May 25,1998, European Court of Human Rights.
CHAPTER XV 133
THE RIGHT AGAINST ENFORCED DISAPPEARANCES
Enforced disappearance is considered a form of torture,

according to the United Nations Working Group on Enforced or
Involuntary Disappearances. The victim is kidnapped and detained
and isolated, without means of communicating to his family and the
outside world. This was also the ruling of the Inter-American Court of
Human Rights in the case of Velasquez-Rodriguez vs. Honduras.101
'! Most often, desaparecidosare murdered, and their corpses are
disposed of surreptitiously. It was reported that in Argentina during
the Dirty War, victims were drugged and dropped to the river from
airplanes, thus the term “death flights.”
I In the Philippines, we have several cases of summary executions allegedly
committed by State agents, termed as “extrajudicial killings” (EJK), or
extralegal killings (ELK). Some of the victims were desaparecidos whose
corpses or remains were later discovered. These killings caught the
attention of the UN, and in 2007, a UN Special Rapporteur, Professor Phillip
Alston, visited the country to assess the situation. President Gloria
Macapagal-Arroyo had earlier created the Melo Commission to conduct an
investigation on the killings. This proved to be a wise decision, and when it
was the turn of the Philippines to present during the first round of the
Universal Periodic Review in 2008, somehow it was the fact that the
government created the Melo Commission to look into extrajudicial killings
that saved the day for the Philippines.
| On December 21, 2012, the Anti-Enforced or Involuntary
Disappearance Act of 2012 was passed. The law, which was sponsored by
Representative Edcel Lagman, was passed even before the Philippines
ratified the International Convention for the Protection of All Persons from
Enforced Disappearance, and was considered a milestone human rights
legislation under the leadership of President Benigno Simeon Aquino III.
The law defines enforced or involuntary disappearance as “the arrest,
detention, abduction or any other form of deprivation of liberty committed
by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty
1OT
Velasquez-Rodriguez vs. Honduras, July 27,1988, Inter-American Court of Human Rights.
134
INTERNATIONAL AND PHILIPPINE HITMAN RIGHTS LAWS
or by concealment of the fate or whereabouts of the disappeared

person, which places such person outside the protection of the law.”
Under this law, offenders cannot invoke the justifying
circumstance of obedience to orders of a superior. In fact, the law
allows disobedience to an order of a superior when such order
constitutes a violation thereof.
CHAPTER
. JLsJ
fi
XVI. A. THE INTERNATIONAL CRIMINAL COURT (ICC)

The International Criminal Court (ICC) is a permanen criminal
tribunal created by a treaty, known as the Rome Statute, which came into
force on July 1, 2002. It is located at The Hague, Netherlands and is not to be
confused with the International Court of Justice (ICJ) based in Geneva, which
is an organ of the United Nations Organization and which has jurisdiction only
over states. Being a criminal court, only natural persons, so far, may be brought
before the ICC. It is a court of last resort, meaning it will not take cognizance of
cases prosecuted before domestic courts. y,
The following principles must concur for the ICC to acquire jurisdiction:
1. Rcitiorxe materiae — The subject matter, i.e., the crime charged
must fall under the jurisdiction of ICC. The crimes that can be
brought before this court are:
a) Genocide;
b) War crimes;
c) Crimes against humanity;
d) Crimes of aggression.108
2. Ratione temporis — The crime must be committed
AFTER the state became a member of the ICC through
ratification.109
3. Rations soli — The crime must be committed WITHIN
the territory of the member state.110
4. Rations personas — The crime must be committed by a
citizen of the member state.111
108
Article 5, Rome Statute of the International Criminal Court.
Ârticle 11, ibid.
^“Article 12, ibid.
m
lbid.
135
136
The International Criminal Court may excercise jurisdiction over

criminal cases referred to the Prosecutor by a State Party; those referred
by the Security Council, or those where the Prosecutor initiated an
investigation. It began its first trial on January 26,2009 against
Congolese militia leader Thomas Lubanga.
The International Criminal Court will also hear criminal cases
referred to it by the Security Council. It began its first trial on January 26,
2009 against Congolese militia leader Thomas Lubanga.
While Article 5 of the Rome Statute enumerates genocide, crimes against
humanity, war crimes, and crime of aggression as crimes falling under the
jurisdiction of ICC, only three (3) of these | I crimes are defined in the statute
itself. These are:
1. Genocide — Defined in Article 6 as acts committed

with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group;
2. Crimes against humanity — Defined in
Article 7 as acts committed as part of a widespread or
systematic attack directed against any civilian population,
with knowledge of the attack. Widespread rape, sexual
slavery, forced pregnancy and enforced disappearance of
persons are among the acts constituting crimes against
humanity;
3. War crimes I— I Defined in Article 8 as grave
breaches of the Geneva Conventions of August 21, 1949 and
serious violations of the laws and customs applicable in
armed conflict, whether national or international, except
those expressly excepted in the statute.
Prosecutions for “acts of aggression,” the fourth crime falling under
the jurisdiction of ICC, can commence only after the member States have
agreed on the definition of the crime.
Organs of the International Criminal Court

Article 34 of the Rome Statute provides that ICC shall be composed
of:
1) The Presidency;
CHAPTER XVI 137
2) The Appeals Division, the Trial Division, and a Pre-Trial Division;

3) The Office of the Prosecutor;
4) The Registry.
The Rome Statute adopts general principles of criminal law, such
as nullum crimen sine lege, non-retroactivity of application, and
individual criminal responsibility.
Children under 18 years of age are exempt from prosecution, while
special immunities granted by local laws in favor of certain officials do not
bar their prosecution.
Responsibility of commanders and other superiors

A military commander having effective command and control oyer
his or her forces, or a person acting as a military commander having
effective authority and control over such forces, shall be liable for crimes
committed as a result of his or her failure to exercise such control
properly over such forces, where:
i) That military commander or person either knew or, owing to
the circumstances at the time, should have known that the
forces were committing or about to commit such crimes; and
ii) That military commander or person failed to take all
necessary and reasonable measures within his or her power to
prevent or repress their commission or to submit the matter to
the competent authorities for investigation and prosecution.
A superior who is not a military commander shall be criminally
liable for crimes committed by his or her subordinates under his or her
effective authority and control as a result of his or her failure to exercise
such control properly over the subordinates, where:
i) The superior either knew, or consciously disregarded
information which clearly indicated, that the subordinates
were committing or about to commit such crimes;
ii) The crimes concerned activities that were within the effective
responsibility and control of the superior; and
138
INTERNATIONAL AND RIIIUIM'INE HUMAN RIGHTS LAWS
iii) The superior (ailed to take all necessary and reasonable

measures within his or her power to prevent or repress
their commission or to submit the matter to the competent
authorities for investigation and prosecution.112
Application of the “Command

Responsibility” doctrine to civilians
In the case of Prosecutor vs. Alfred Musema,113 which was
decided by the International Criminal Tribunal of Rwanda (ICTR), a
civilian employer was convicted for Genocide and other crimes on the
basis of the effective control theory. The Court found that Musema's
employees at the tea factory participated in killing the Tutsis in his
presence or with his knowledge, but he failed to prevent the killings
and in some cases, he even participated in the rampage.
This case is particularly instructive because this shows for the
first time that “Command Responsibilty” as a mode of incurring
criminal liability is not limited to military commanders but also
applies to civilians, provided that the other requisites are present.
112Article 28, Rome Statute of the

International
113 Criminal
ICTR-96-l3-T, Court.
January 27, 2000.
CHAPTER XVII
INTERNATIONAL HUMANITARIAN LAW
XVII. A. DEFINITION
| International Humanitarian Law (IHL) is a collection of treaties
and acceptable practices which govern the conduct of war, the status,
treatment, rights and obligations of belligerent as well as. neutral and
allied States, and of institutions and individuals involved in the armed
conflict, whether as military personnel, health and relief providers,
members of the media or as civilians.
I IHL is a set of rules “seeking to limit the suffering” 113 114 caused to
humanity by the conduct of war (jus in bello), and differ from the laws
governing the grounds for resorting to war, or jus ad bellum.
XVII. B. TWO (2) COMPONENTS OF IHL

The two (2) main components of IHL are:
1. The laws of war or armed conflict, which were covered in The
Hague Conventions of 1899 and 1907. These laws define
combatants and lay down the rules of combat.
2. The laws for the protection of the victims of war, which were
the focus of the four (4) Geneva Conventions in 1949.
XVII. C. APPLICATION OF IHL

International Human Rights Law applies only during an armed
conflict, whether domestic or international. An international armed
conflict involves two or more states, but it does not necessarily mean
that the conflict must be fought in or affect the territories of both states.
Thus, the war in Iraq falls into the category of international armed
conflict even if it was fought solely within Iraqi territory. Absent any
participation of a foreign state, we could say that the armed conflict in
certain areas in Mindanao “was” (hopefully the peace pact works) a
domestic armed conflict.
113http://www.icrc.org/eng/war-and-law/ihl-other-legal-regmies/jus-m-bello-jus-ad-bellum/
inqex.jsp [accessed on July 19,2013. - Ed.}.
139
XVII. D. ORIGIN OF IHL

The idea of humanitarian law originated from the efforts and
writings of a merchant named Henri Dunant, who, in June 1859, saw
during his travels thousands of wounded soldiers left to die after the
Battle of Solferino. He wrote the book “A Memory of Solferino,” which
was published in 1862, where he made two (2) appeals: a) the
creation of relief societies to care for the wounded in war; and b) for
the recognition and protection of relief societies through an
international agreement. This resulted in the creation of the
“International Committee for Relief to the Wounded,” the forerunner
of the International Committee of the Red Cross (ICRC), which
operates the International Red Cross and International Red
Crescent Movement.115
XVII. E. GENEVA CONVENTIONS

At the behest of Dunant, the first treaty of International
Humanitarian Law was entered at a Diplomatic Conference held in
Geneva in 1864. This was called the “Geneva Convention for the
Amelioration of the Condition of the Wounded in Armies in the
Field,” otherwise known as the 1864 Geneva Convention.
The 1864 Geneva Convention is the first multilateral treaty
which binds the signing States with the obligation to extend care to
wounded and sick military men (military personnel hors de combat).
It also affords protection to medical personnel, equipment, and
transportation facilities of the relief committee. The scope of the
treaty, however, was limited to military personnel and only applied
to specific armed conflicts.
The first Geneva Convention was expanded in 1949, and three
(3) other conventions were adopted or revised in that year, to
include in its coverage the protection to those wounded and
shipwrecked at sea, the prisoners of war, and civilians in times of
war. Two (2) protocols were added to the conventions in 1977 for
international and non-international conflicts, and a third protocol
entered into force on January 14, 2007.
1uhttp://www.redcross.lv/en/conventions.htm[accessed on July 19, 2013.‘-Ed.].

CHAPTER XVII
The four (4) Geneva Conventions are:

1. First Geneva Convention — Amelioration of the Coi of the
Wounded and Sick in Armed Forces in the the “Wounded
and Sick Convention” for short;
2. Second Geneva Convention, —
Amelioration of
Condition of Wounded, Sick and Shipwrecked Meml
of Armed Forces at Sea, or the “Maritime Convention
■
f
3. Third Geneva Convention — Treatment of Prisoners War, or the
“Prisoners of War
4. Fourth Geneva Convention — Protection of Civilian Persons in Time
of War or the “Civilians Convention."
XVII. F. THE HAGUE CONVENTIONS

The first Hague Convention was in 1899, initiated by Russia.
The Russian delegation included Fyodor Martens, whose remarks later became
part of the Preamble of the Hague Convention, now famously known as the
Martens Clause.
A second conference was held in 1907, to expand the first convention.
Martens led the Russian delegation. The matters taken | up were the:
I 1) Pacific Settlement of International Disputes;
ft 2) Limitation ■ of Employment of Force for Recovery of
ft w I Contract Debts;
3 ) Opening of Hostilities;
4) Laws and Customs of War on Land; .
ft 5) Rights and Duties of Neutral Powers and Persons in
■ ^ Case of War on Land; ,
m 6) Status of Enemy Merchant Ships at the Outbreak of
■ I Hostilities; j
ft 7) Conversion of Merchant Ships into Warships;
ft 8) Laying of Automatic Submarine Contact Mines;
ft. 9) Bombardment by Naval Forces in Time of War;
142
10) Adaptation to Maritime War of the Principles of the Geneva

Convention;
11) Certain Restrictions with Regard to the Exercise of the
Right of Capture in Naval War; and
12) Rights and Duties of Neutral Powers in Naval War.
XVIL G. FUNDAMENTAL RULES OF IHL

1) Belligerent States or combatants cannot use methods and
weapons of warfare which are prohibited (or restricted)
under IHL, e.g., poisonous gasses, bacteriological methods;
2.) Attacks must be limited to military objectives and must
avoid civilians;
3) Torture, corporal punishment or cruel or degrading
treatment must not be used;
4) Civilians and persons hors de combat shall be treated
humanely, so shall the enemy who surrenders. The
wounded and the sick shall be afforded treatment and
protection;
5) Relief and medical providers such as the Red Cross or
Red Crescent must be protected.
XVII. H. INTERNATIONAL HUMANITARIAN LAW (IHL) versus

INTERNATIONAL HUMAN RIGHTS LAW (IHRL)
Under International Humanitarian Law, the killing of a
combatant in an armed conflict may be justified. However, Human
Rights laws 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 vis-a-vis the rights of a
person* whether combatant or not, under IHRL, before launching an
attack. They must attempt to strike a balance between human rights
law (e.g., the right to life) and humanitarian law. For instance, when
a combatant involved in armed conflict is found in a community
where there are civilians, unarmed and unaware that forces are
closing up on him, the most appropriate action would be to arrest
him when doing so is possible, rather than kill him even if that were
allowed under IHL. He can thereafter be tried for whatever offenses
he had committed.
CHAPTER XVII 143
Issues relating to the maltreatment of civilians and prisoners

of war in zones of armed conflict usually involve human rights laws,
particularly the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment of Punishment (CAT). Thus, even
if an offending State has not ratified The Hague or The Geneva
Conventions, it may still be held liable by virtue of its ratification of
the CAT. Moreover, since the right against torture is a jus cogens
right, even States that have not ratified the CAT may be held
accountable.
Definition of “protected persons”

The Fourth Geneva Convention (“Civilians Convention”)
defines protected persons thus:
“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.
The provisions of Part II are, however, wider in application,
as defined in Article 13. ",
Persons protected by the Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field of 12 August 1949, or by the Geneva Convention
for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea of 12 August 1949, or
by the Geneva Convention relative to the Treatment of Prisoners of j
War of 12 August 1949, shall not be considered as protected persons
Jjvithin the meaning of the present Convention.”116
■Ârticle 4, Fourth Geneva Convention.

144
The International Criminal Tribunal for the Former

Yugoslavia (ICTY) ruled in the cases of Tadic116 117 and
Delalic118 that Article 4 still apply even if the perpetrators
and the victims have the same nationality, considering
their different ethnicities and relations to foreign powers.
The conflicts in the former Yugoslavia arose from the
separation and declaration of independence of the affected
States, which used to be member-republics of the former
socialist federal republic.
XVII. I. INTERNATIONAL COMMITTEE OF THE RED CROSS

(ICRC) and the RED CRESCENT SOCIETY
Five (5) Swiss nationals founded the ICRC, namely: Henri
Dunant, Gustave Moynier, Guillaume-Henri Dufour, Louis Appia
and Theodore Maunoir. The mission of the society is to “protect the
lives and dignity of victims of war and internal violence and to
provide them with assistance.” It derives its legal authority from the
four (4) Geneva Conventions of 1949, as well as its statutes.
ICRC carries out its missions during international armed
conflicts, non-intemational armed conflicts, and in violent situations
not amounting to an armed conflict. However, IHL only applies- when
there is an armed conflict, whether it be international or non-
intemational. In violent situations not amounting to armed conflict,
IHL does not apply. Instead, it is Human Rights Law that apply.
An international armed conflict involves at least two (2) states.
A non-international armed conflict may involve the regular armed
forces of a state fighting against an armed group, or two or more
armed groups fighting against each other for a considerable period
of time. Violent situations not amounting to armed con flirt, are
internal disturbances which disrupts public order but are not in
the nature of armed conflict, such as riots.
There are also conflicts arising from ethnic differences. This
can be problematic because any person belonging to an ethnic class
may arm himself and take part in the conflict on an off-and-on
basis, thus the distinction between a combatant and a civilian may
be hard to determine. In this type of conflict, IHL still apply.
116
lT-94-l, July 15,1999, International Criminal Tribunal of the Former 1
Yugoslavia.
117
IT-96-2l-A, February 20, 2001, id.
CHAPTER XVII 145
The International Committee of the Red Cross now uses three I (3)
emblems: the red cross, the red crescent, and the red crystal. 1 The first
two (2) were in use for decades. There also used to be the I red lion and sun
aside from the red cross and red crescent. Since I 1980 however, only the
two (2) were used. The use of the red crystal I came after the entry into
force of the Third Additional Protocol to the I Geneva Conventions in early
2007.
Originally, the emblem of the red cross on a white background I was
adopted as a neutral emblem. During the war between Russia I (Christian
country) and Turkey (Islamic country), the latter started I using
ambulances with red crescent on a white background. Iran I was using red
lion and sun, so in 1929 both the red crescent and red I lion and sun were
adopted. Iran stopped using the red lion and sun I in 1980, and used the
red crescent instead.
The red crystal was decided upon because the existing red cross I
and red crescent emblems have religious and other connotations I which
some national relief movements are not comfortable with, and I for some
places these emblems have no significance.
There are two (2) uses to the ICRC emblem:
1. Protective use — The emblem becomes a mantle of
protection conferred by the Geneva Convention upon
persons, vehicles, and property.
2. Indicative use — The emblem identifies the persons,
vehicles, and property related to ICRC.
I XVII. J. CURRENT ISSUES

International Humanitarian Law is not only about wars and I
armed conflicts. It is about anything that threatens humanity. Thus,
in 2007, the Council of the International Red Cross and Red Crescent
Movement passed a declaration entitled, “Together for Humanity” and
six (6) resolutions concerning the current threats to humanity,
including:
a) Environmental degradation and climate change;
b) International migration;
c) Urban violence;
U<>
INTERNATIONAL AND PHILIPPINE HUMAN RIGHTS LAW*
cD Emergent and recurrent diseases; and

e) International disaster relief and assistance.
Environmental degradation and climate change

Climate change is already wreaking havoc on many people in
many places of the world, and the most vulnerable are usually the
poor in underdeveloped countries where environmental
degradation is severe. This is a threat to humanity that will have
increasing economic, territorial, health, and political impact.
The United Nations Framework Convention on Climate
Change (UNFCCC) is created to address global issues on climate
change.
International migration
International migration is a phenomenon that is happening
across the world, resulting in cultural and religious diversity which
in turn sometimes generate conflicts. Roughly ten percent (10%) of
the Filipinos live and/or work abroad, bringing in precious dollars
that help boost the economic health of the country.
OFWs work everywhere, including places where their safety
are compromised. They are in war-tom countries and even in war
zones. For this reason, they may be negatively affected and might
need shelter, legal, and medical assistance. In many instances,
the Philippine government had made diplomatic negotiations in
behalf of Filipinos who are accused of crimes and convicted
abroad and had participated in the rescue of workers trapped
inside war-tom countries.
International migration may also involve a massive influx of
humanity arising from armed conflicts, especially involving
States sharing the same borders. The Council of the International
Red Cross and Red Crescent Movement recognize that issues
affecting both the migrants and the host State have to be
addressed.
Urban violence
Violence is the world’s leading cause of preventable death.
Factors such as poverty coupled with greed, decline in or warped
CHAPTER XVII 147
sense of moral values, ballooning populations of misguided youth and

irresponsible parents, corruption and complicity of law enforcers,
judicial systems needing reforms, and the easy availability of drugs
and weapons contribute to the rise in urban violence.
ifln some countries, religious fanaticism and ethnic rivalries ■
have claimed many lives. In the Philippines, it is more a combination ;
of greed, drugs, ignorance, and even dirty politics.
1 Greed is probably the number one cause of urban violence in t
the'country. Most of the time, offenders and their apologists use L the
term “poverty” instead of greed, which puts a very bad label to t poor
people and miserably tends to justify the commission of crimes.
L Robberies, premeditated murders and kidnappings almost always I
happen because of the desire for money.,t #
j The dangerous combination of drugs and ignorance is another 1
cause of urban violence, especially those incidents involving young I people
in gangs, v '
| Many politicos are guilty of takinjg advantage of ignorant I
masses for their political agenda, hiring them for measly sums to 1 stage
all kinds of political drama that sometimes result in violence.
1 We also have our share of public officials and law enforcers whose I
being inutile in enforcing the law is their own justification for K resorting
to vigilante justice.; ,«
rJjEmergent and recurrent diseases

Among the diseases considered to threaten humanity, most t
arefHIVZAIDS, tuberculosis, malaria, s and pandemic influenza., In,
■certain parts of the country, dengue fever is also considered a threat. ; In
view of this, there is a need to strengthen the health systems of States, to
share knowledge and best practices, and to provide iaccessible medical
assistance especially to vulnerable groups, such las orphaned children and
prisoners.
9 International disaster relief and recovery assistance

I Humanity faces threats not only from man-made disasters such ias
armed conflicts but also from natural disasters. The Philippines ftis
dmsidered to be the No. 1 most disaster prone country in Asia in
148
INTI'IHNATIONAI, AND 1*111 MI'I'/NK HUMAN HHHVffl fAty$
2011, and No. 8 in tho world, uccorcBig to Center for

lUwoiivch on tho Epidemiology oIBiMUHtora (CRKI)). It in
OBtimated that P15 billion is lost every year due to
disasters, among which are earthquake#, floods, storms,
and landslides.
Resolution 4 of the Council of tho International Hod CTOHHand
Red Crescent Movemont provides the guidelines for the Domestie
Facilitation and Regulation of International Disaster Relief and Initial
Recovery Assistance. The guidelines are drawn from existing
international instruments, including the United Nations General
Assembly resolutions 46/182 of 1991 and 57/150 of 2002, the Measures
to Expedite International Relief of 1997 and the Hyogo Framework for
Action of 2005.
The Guidelines set forth the responsibilities of the affected State,
those of the assisting States, and those of all other States.
It is the primary responsibility of the affected State to ensure
disaster risk reduction, relief and assistance in the territory. It shall
make a request for international assistance when necessary, and may
terminate one already extended. It shall facilitate the visa
requirements of foreign personnel involved in the relief operations, and
facilitate the entry of equipment without collecting customs duties.
.The assisting States have the responsibility to provide competent
and adequately trained personnel, provide assistance in a manner that
is sensitive to cultural, social and religious customs and traditions, be
responsive to the needs of vulnerable groups in the affected State, and
shall not use the relief operations as a means to gather information of a
political, economic or military nature that is irrelevant to disaster relief
or initial recovery assistance.118 119
All States should actively encourage members of the public
interested in contributing to international disaster relief or initial
recovery assistance to make financial donations or those types of relief
goods requested by the affected States.120
118Core Responsibilities, Guidelines for the Domestic Facilitation and Regulation of

International Disaster Relief and Initial Recovery Assistance, International
Federation of Red Cross and Red Crescent Societies.
119Additional Responsibilities of All States, ibid.

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HUMAN RIGHTS LAW,

HUMAN RIGHTS CULTURE

Loretta Ann P. Rosales

The 1987 Constitution............................................................... 7-8

Bill of Rights in The 1987 Constitution ............... .... .... 13-14

Social Justice and Human Rights in The 1987

THE ROAD AHEAD.............................. 44

The 1987 Constitution —

generations of rights. The first generation is known as the first

humanitarian disaster relief. The latest right is right to water. This

A sample subject or right-holder and an object or content of a human

Three Obligations of State Parties

Article 2(1) of the same International Covenant on Civil and

The 1987 Constitution

The International Bill of Rights

The Commission on Human Rights of the United Nations was

the formulation of the Universal Declaration of Human Rights the

SOURCES AND FOUNDATIONS OF HUMAN RIGHTS LAW

rights of minorities, rights of children, etc. In Christianity, one finds them in

Bill of Rights In The 1987 Constitution

The Bill of Rights in the 1987 Constitution traces its beginning

communities in the Philippines to autonomy, to their ancestral lands

Universal Declaration of Human Rights

Protocol aimed at the abolition of the death penalty was adopted by

ECONOMIC, SOCIAL, AND CULTURAL RIGHTS

Social Justice and Human Rights

Universal Declaration of Human Rights

International Covenant on Economic,

SOLIDARITY/COLLECTIVE RIGHTS (THIRD

Peace, Development, Environment

Vienna Convention, the 1987 Montreal Protocol on Substances

The core international human rights instruments that pertain

prived of education, sold, subjected to cruel methods of punishment, and

Persons With Disabilities (PWDs)

conditions, or the absence of knowledge about disability, its causes,

them vulnerable to development aggression (Guia-Padilla, 2011, p.

Villavicencio v. Lukban, 39 Phil, 778

Human Rights Violations

assaul, originating from State and non-State actors, remedies must

to be secure in their persons, houses, papers, and effects against

UNIVERSITY OF THE CORDILLERAS

The Reporting Requirement

The International Criminal Court

and aggression (Colmenares, Primer on the International Criminal Court,

The Public 1235 Procedure

Special Country Rapporteurs and Thematic Rapporteurs

these annual reports survey the information received by the special

The promotion and protection of human rights cannot be entirely

The Office of the UN High Commissioner for Human Rights

lights and submitting recommendations to them, with a view

(c) Promoting and protecting the realization of the right to

National Human Rights Institutions

(Paris Principles: 20 years, guiding the work of National Human

Non-Governmental Organizations (NGOs)

public interest and with identifiable leadership, membership, and

Human Rights Culture

“I am convinced that the development of a culture of human rights

VhlU WYtflW HglUs which Ate legally demandable and

*Tha vnk of Law is a dynamic concept for the

A. M. No. 08-1-16-SC (The Rule on the Writ of Habeas Data) and

The valedictory address of Chief Justice Roberto Concepcion,

2. They shall inculcate patriotism and nationalism, foster

Today, the 1987 Constitution, often referred to as human rights

PEPITA JANE A. PETRALBA

disappoanHl in the hands of or u'ith the acquiescence of Honduran