0 Bewertungen0% fanden dieses Dokument nützlich (0 Abstimmungen)
1K Ansichten7 Seiten
1. The document discusses the various theories and sources of human rights. It outlines 10 main theories: natural law theory, historical theory, positivists theory, Marxism, sociological approach, utilitarian theory, theories of justice, equality and respect of human dignity, and dignity of man.
2. It also discusses the classification of human rights into categories like civil/political rights, economic/social/cultural rights, and collective rights. Rights can also be classified based on their source, recipient, and aspect of life protected.
3. The UN Commission on Human Rights is established by the UN Economic and Social Council to deal with all human rights issues and participation of international communities on human rights.
1. The document discusses the various theories and sources of human rights. It outlines 10 main theories: natural law theory, historical theory, positivists theory, Marxism, sociological approach, utilitarian theory, theories of justice, equality and respect of human dignity, and dignity of man.
2. It also discusses the classification of human rights into categories like civil/political rights, economic/social/cultural rights, and collective rights. Rights can also be classified based on their source, recipient, and aspect of life protected.
3. The UN Commission on Human Rights is established by the UN Economic and Social Council to deal with all human rights issues and participation of international communities on human rights.
1. The document discusses the various theories and sources of human rights. It outlines 10 main theories: natural law theory, historical theory, positivists theory, Marxism, sociological approach, utilitarian theory, theories of justice, equality and respect of human dignity, and dignity of man.
2. It also discusses the classification of human rights into categories like civil/political rights, economic/social/cultural rights, and collective rights. Rights can also be classified based on their source, recipient, and aspect of life protected.
3. The UN Commission on Human Rights is established by the UN Economic and Social Council to deal with all human rights issues and participation of international communities on human rights.
Human Rights – rights which are inherent in our nature, happiness.
and without which, cannot live as human b. Political – rights to participate in running beings. the affairs of the government. Dignity of Man – derived right of every person to free c. Economic and Social – rights conferred development of his personality. by law which enables them to achieve Characteristics of HR: social and economic development which 1. Inherent – not granted by any person. (right to ensures their well-being, happiness and life and right to dignity as a human being) financial security. 2. Fundamental – life without it would be d. Cultural – rights t ensure preservation of meaningless. (freedom of thought and religion) national culture. 3. Inalienable – cannot be rightfully taken away as 4. Struggle for Recognition: an individual. a. First generation – derives from 17th to 4. Imprescribable – cannot be lost thru passage of 18th century of English, American and time. (freedom of thought) French revolutions which favors 5. Indivisible – incapable of division and cannot be abstention rather than intervention of the denied though availed. government. 6. Universal – irrespective of their origin, status or b. Second generation – covers social, condition or place where they live. economic and cultural rights which 7. Interdependent – fulfillment cannot be originated from the socialist tradition and materialized without the realization of another. conceives HR in positive terms. Classification of Rights: c. Third generation – covers collective 1. Source: rights. a. Natural – God-given rights which are 5. Derogability acknowledged by everyone as morally a. Absolute or non-derogable – cannot be: good. Unwritten but prevail as norms. i. Suspended b. Constitutional – rights conferred and ii. Taken away protected by the Constitution which iii. Restricted/limited cannot be taken away by the law Even in: making body. National emergency c. Statutory – rights provided by the law Government invokes national and promulgated by the law making security body which can also be abolished by the b. Derogable or can-be-limited – may be same. suspended, limited or restricted 2. Recipient: depending on the circumstances which a. Individual – rights of individuals. call for the preservation of social life. b. Collective – rights of the society which REQUISITES FOR RESTRCITIONS TO cannot be enjoyed without the company BE VALID: of others. 1. Provided by law which is made 3. Aspect of Life: known to citizens a. Civil – rights enforced at the instance of private individuals for the purpose of 2. There is a state of emergency which - Whatever is disturbing to social harmony is urgent preservation of public good is wrong and unjust. needed. - Characteristic: leaves vague what is part of 3. Does not exceed what is strictly the law of nations and is therefore necessary to achieve the purpose. inalienable. Categories of HR: 3. Historical Theory 1. Fundamental Freedom in Political Rights - HR developed through the common 2. Democratic Rights consciousness of men. 3. Mobility Rights - HR existed through a gradual, spontaneous 4. Right to Life, Liberty and Security of the Person and evolutionary process without any 5. Legal Rights arbitrary will of any authority. 6. Rights of Equality 4. Positivists Theory 7. Economic, Social and Cultural Rights - All rights and authority comes from the state 8. Worker’s Rights and what the officials have promulgated. 9. Aboriginal Rights - HR is found only by enactment of a law with 10. Reproductive Rights sanctions attached. 11. Protective Rights in Armed Conflicts 5. Theory of Marxism 12. Right to Self-determination - Interest of the society over an individual 13. Minority Group Rights man’s interest. - Individual freedom is recognized only after CHAPTER 2 the interest of society is served. Sources of HR: 6. Sociological Approach 1. Religious or Theological Approach - HR existed as means of social control. - Since rights come from Divine source, they - HR existed to serve the social interest of the are inalienable and cannot be denied by society. mortal beings. 7. Utilitarian Theory - Theology is the basis of HR. - Promotion of greatest good for greatest - Dignity of human person is realized through number. love of fellowmen. - Requires the government to maximize the 2. Natural Law Theory total net sum of ctizens. - Originated from the Stoic and elaborated by 8. Theories of Justice Greek philosophers. - Serves the ends of justice. - Perceives that the conduct of men must - Liberalities of individual can be achieved always conform to the law of nature. only in a just society. - Must be in accordance with nature which is - There is no justice in a community where eternal. there are social and economic inequalities. - Natural Law – embodies those elementary - One of fairness are to be equally distributed principles of justice which there is right and for the common good. just. 9. Theory based on Equality and Respect of - Scholastic Natural Law – right reason in Human Dignity accordance with the law of God. - Recognition of individual rights in the enjoyment of the basic freedoms. - Treatment of the government equally to all, and to encourage recognition of thus government intervention is necessary interdependence of the people of the world. for general welfare. UN Commission on HR: 10. Theory Based on Dignity of Man - Established by the Economic and Social Council - Value Oriented Approach – HR means - Deals with all aspects of HR issues involving the sharing of values of all identified policies participation of all sectors of the international upon which HR depend on. committee. - Ultimate Goal – World community where - Takes tasks and investigations assigned by the there is democratic sharing and distribution GA and Economic and Social Council. of values. Sub-commissions of independent experts – elected and empowered to undertake studies and to make Human Rights as an International Concern recommendations to prevent discrimination, Universal Declaration of Human Rights – basic norms protect minority rights and fundamental and standards of the HR were proclaimed. freedoms. International Convention on Civil and Political Rights – NOTE: amplified the HR principles in Universal - Declaration serves as norms to serve standards Declaration. of achievement of whole nations. International Covenant on Economic, Social and Cultural - UDHR did not direct its members to enforce Rights – further broadened the scope of the them. Universal Declaration. - No sanctions or enforcement. Civil and Political Rights – Bill of Rights International Bill of Rights – composed of: 1. Universal Declaration of HR CHAPTER 3 2. International Covenant on Civil and Political Art. 13 UN Charter – Directs GA to initiate studies and Rights recommendations for the purpose of assisting in 3. International Covenant on Economic, Social and the realization of HR and fundamental freedom. Cultural Rights Art. 55 (c) UN Charter – universal respect for an Committee on Economic, Social and Cultural Rights – observance of HR and fundamental freedoms. established by Economic and Social Council to Art. 56 UN Charter – clear legal obligation of all review State parties in implementing ECOSOC. members to pledge themselves and take joint HR Committee – implement the Covenant on Civil and and separate action in cooperation of the Political rights. Organization for the advancement of Art. 55 (c). Hindrance in the Implementation of HR Instruments: Art. 62(2) UN Charter – Economic and Social Council - Art. 2, par. 7 of the UN Charter: may make recommendations for the purpose of Nothing contained therein shall authorize the UN promoting respect for observance for HR and to intervene in matters within the domestic fundamental freedom for all. Prevent jurisdiction of any state or shall require members discrimination and to protect the rights of to submit such matters to settlement under the minorities. present Charter; but this principle shall not Art. 76 UN Charter – Trusteeship System to encourage prejudice the application of enforcement and for fundamental freedom for all without measures under Chapter VII. distinction as to race, sex, language or religion CHAPTER 4 9. International Convention on the Protection and Sources of HR laws: Promotion of the Rights and Dignity of Persons 1. International Conventions with Disabilities (ICPPRDP) 2. International Custom Requisites to be a Customary Law: 3. General Principles recognized by the 1. The objective element amounts to settled Community of Nations practice of the State 4. Judicial Decisions and the teachings of the most 2. The subjective element consist a belief that this highly qualified publicists. practice is rendered obligatory by the existence Treaty – legally binding written agreement concluded of a rule of law requiring it. between the States. Jus Cogens – principle of non-use of force, thus if UN Protocol – supplement or subsequent agreement relative Charter and treaty are not applicable, ICJ may to the existing treaty. still rule on the case. NOTE: ELEMENTS: Consent of the State must be EXPRESS thru: 1. Peremptory norm of general international law 1. Ratification 2. Accepted and recognized by the international 2. Approval community 3. Acceptance 3. No derogation Doctrine of Pacta Sunt Servanda - State is bound to 4. Can be modified only by a subsequent norm of faithfully comply with the treaty after ratification. general international law having the same Q: When Liability of the State Arise? character. A: Only where there is BF on the part of the State, in HR Obligatio Erga Omnes – obligations that are owed by treaties, there can be liability even in absence of States to all, regardless of the presence or BF. absence of their assent to be bound thereby. Core International HR Treaties: - If the State violates a treaty with another State 1. ICCPR and the treaty only pertains, for instance, to their 2. ICESCR bilateral agreement regarding trade, that 3. Convention Against Torture and Other Cruel, infringement is a PRIVATE MATTER BETWEEN Inhuman and Degrading Treatment or THE CONTRACTING STATES. Punishment (CATOCIDTP) - HR laws are involved, all states hall have a legal 4. International Convention on the Elimination of All interest in their protection, for they are Forms of Racial Discrimination (ICEAFRD) obligations owed by the State to community of 5. Convention on Rights of the Child (CRC) States. 6. Convention on Elimination of All Forms of Universal Jurisdiction – State may prosecute a crime Discrimination Against Women (CEAFDAW) elsewhere when the crime involved is a jus 7. International Convention on the Protection of cogens. Rights of All Migrant Workers and Members of Actio Popularis – prosecution of jus cogens crime may their Families (ICPRAMWMF) be initiated by another for the benefit of another 8. International Convention for Protection of All through this complaint. Rule of procedure in Persons for Enforced Disappearances bringing a suit on another’s behalf. (ICPAPED) International and regional tribunals: 1. International Courts of Justice – Only member states may file complaints. Composed of 15 judges for terms of 9 years elected by GA and UN CHARTER SC. Chapter 1 – Purpose: Exercises jurisdiction in two cases: 1. Maintain international peace and security a. Contentious cases (Peace) b. Advisory proceedings 2. Develop friendly relations (HR) Barcelona Traction Case Doctrines: 3. International cooperation in solving problems a. State can bring the case for the benefit of a (Diplomacy) corporation. 4. Center for harmonization in actions of nations b. Made an obiter dictum recognizing and Chapter 2 – Members expanding the meaning of erga omnes Chapter 3 – Organs: obligations. 1. GA 2. International Criminal Courts (ICC) – 2. SC independent permanent international criminal 3. Trusteeship court. 4. ICJ Cases may be tried: 5. Secretariat a. Crimes against humanity (terrorism) 6. FCOSOF b. War crimes Chapter 6 – How UN settles disputes? c. Genocide Seek solution by: d. Crimes of aggression a. Negotiation 3. Ad hoc tribunals b. Inquiry 4. Regional Courts: c. Mediation a. European Courts of HR d. Arbitration - Individuals may bring a suit e. Others directly. Chapter 9-10 – Economic Social Function b. Inter-American Court of HR Chapter 12 – Trusteeship - Individuals are granted locus Chapter 14 – ICJ standi in judicio, however, a Declaration of Acceptance by the CHAPTER 5 state party to American UDHR: Convention is necessary to 1. Resolves exercise jurisdiction. 2. Not a law passed by UN c. African Court of H and People’s R 3. Not legally binding but is practiced and - Non-victims may bring the suit in recognized by countries. behalf of victims. Jus Cogens – State cannot validly enter a treaty to the 5. Hybrid or internationalized courts – courts mixed controversy. It cannot be changed or disobeyed. of domestic and international, both in the judges Equality and Equity and staff as well as the laws applied, but they 1. Every human is entitled regardless of his sex, either are integrated in the domestic judicial race, and religion. system or appended to it. 2. ELEMENTS OF EQUAL PROTECTION LAW: a. Based on Substantial distinction b. Germane to the purpose of the law c. Not limited to existing conditions d. Apply equally to each members of the 2. Writ of Amparo – extralegal killings and enforced sense class. disappearances. Remedy whose rights to life, 3. Rights should be subject to valid rights. liberty and security is violated or threatened with Right to Life violation by an unlawful act or omission. 1. Secure from any physical harm (self- 3. Writ of Habeas Data – rights to privacy in life, preservation) liberty or security is violated or threatened. 2. Does not include right to die. Right to be Presumed Innocent 3. Trafficking – modern day slavery (exploitation) Rights: 4. Palerno Protocol – protocol to prevent, suppress 1. Informed and punish trafficking in persons specially w&c 2. Prepare defense and to communicate with EXCLUSIONARY RULE: counsel of his own choosing a. When the confession is obtained legally thru 3. Tried without delay torture (excluded as evidence) 4. Tried in his presence and defend himself b. Doctrine of Poisonous Tree – evidence 5. Examine and obtain witness obtained illegally is not admissible to courts. 6. Free assistance of an interpreter Right Against Torture 7. Not be compelled to be a witness against Torture – any act by which severe pain or himself suffering, physical or mental, is Right Against Ex Post Facto Law and Bill of Attainder intentionally inflicted on a person. 1. No crime, no punishment without previous penal Acts Constituting Cruel, Inhuman – degrading law) acts Treatment of the Law: NOTE: a. Holds the person liable for an act or Non-derogable – state cannot take such right even at omission that was not punished at the state of war or emergency time of commission. Right to Effective Judicial Remedy b. Impose a penalty heavier than the one 1. Must be just, accessible, free from corruption that was applicable at the time of and influence and speedy but with quality. commission. 2. 3 Most Dangerous Enemies of Fairness Right to Privacy a. Corruption 1. Evidence obtained in violation of this shall b. Ignorance render the evidence inadmissible c. Arrogance Freedom of Movement Access to Justice 1. Exceptions: 1. Availability of legal assistance to the poor (pro a. Freedoms curtailed or restricted upon bono) lawful order of the court 2. PAO and Department of Justice Action Center b. In interest of national security, public 3. Availability of information on where and how to safety or health. get legal assistance Right to Seek Asylum Judicial Writs 1. Non-refoulement – political offenders and 1. Writ of Habeas Corpus – judge to another refugees detaining a person, commanding to produce the 2. Extradition – criminal offenses body of the prisoner at designated time and 3. Deportation – immigration offenses place. Right to Nationality 1. Acquisition and Change of Nationality a. Jus Sanguinis (by blood) b. Jus Soli (by place of birth) c. Naturalization Right to Marry and Found a Family Right to Property Freedom of Thought, Conscience and Religion Freedom to Practice or Manifest Religious Beliefs Freedom of Expression Freedom of Assembly and Association Right to take Part in the Government Right to Social Security Coverage of the SSM: a. Health care b. Sickness c. Old age d. Unemployment e. Employment injury f. Family and child support g. Maternity h. Disability i. Orphans and survivors Right to Rest and Leisure Right to Adequate Standard of Living Right to Education Right to Enjoy Economic, Social and Cultural Life Right to Self-determination Right to Health