HUMAN RIGHTS

Midterm Slides by Judge Yvonne Artiaga 1

2016

HUMAN RIGHTS: AN OVERVIEW Major IHL: Geneva Convention, The Hague Conventions
A right is not what someone gives you, it’s what no one can take from you Major IHRL: ICCPR, ICESCR, CAT, CERD, CEDAW, UNCRC

Brief History: Accountability for HR Violators

- Offspring of natural rights which evolved from natural law Duty Bearers v. Right Holders
- Rooted in traditions of many cultures: Hindu Verdas, Bible, Koran, Right holders – individuals/ groups entitled to human rights, claim these
Code of Hammurabi, Incan, and Aztec Codes rights, and hold duty bearers accountable
- Enlightenment: political philosophy to establish a limited form Duty bearers – primarily state actors responsible to respect, protect, and
government that respects the freedom of individual citizens fulfill human rights
- Pre-cursors of 20th century HR: Magna Carta (1215), English Bill of
Rights (1689), French Declaration (1789); US Constitution (1791) Human Rights Issues Identified by Students:
- WWII and the Birth of the United Nations - Adequate standard of living, homelessness, hunger
- Expensive health services
What is Human Rights? - - Speedy trial, cases dragging for several years
- Right as justiciable claim, on legal or moral grounds, to have or - Human trafficking, child trafficking
obtain something, or act in a certain way (Oxford Dictionary) - Extra-judicial killings, summary executions
- Human rights as rights inherent to all human beings, whatever our - Lumad killings, people displacement due to mining Bangsamoro
nationality, place of residence, sex, national or ethnic origin, self-determination
color, religion, language, or any other status (UNOHCHR) - No security of tenure, no living wage
- Gentrification, urban displacement of people, demolition
Dimensions/ Categories of Human Rights: happening everywhere
- Civil and Political Rights (1st Generation, negative rights) - Landless farmers
- Socio-economic and Cultural Rights (2nd Generation, positive - Inhuman prison condition
rights) - Police brutality
- Collective or Group Rights (3rd Generation, positive rights) - Gender discrimination, hate crimes against LGBTs (LGBTQQIA)
*These are categories NOT hierarchy
Jus Commune of Human Rights (Cases in the syllabus)
Characteristics of Human Rights:
- Universal EMERGENCE OF HUMAN RIGHTS LAW
- Inherent
- Inalienable Source of International Law (Art. 38[1] ICJ Statute
- Indivisible - International Conventions
- Interdependent - International Customs
(1903 Vienna Declaration) - General Principles of Law
- Judicial decisions and scholarly writings as subsidiary means to
International Human Rights Law v. International Humanitarian Law: determine rule of law
IHRL – set of laws as defining rights of individuals and groups, IHL set of laws See also:
intended to address humanitarian problems in times of armed conflict - Article 38(2) ICJ Statute to decide ex aequo et bono (according
IHRL applies at ALL times (except in cases of derogations, IHL applies in to the right and good or from equity and conscience) upon
times of armed conflict whether international or non-international agreement of parties
IHRL binds states/ governments in relation to individual or groups, IHL binds - Art 59 ICJ Statute – stare decisis not recognized
all actors (states and individuals) to an armed conflict - VCLT (1969) (1980)

Daileg· Gamayon· Honoridez· Pungos· Vergara

HUMAN RIGHTS
Midterm Slides by Judge Yvonne Artiaga 2
2016

o Article 26 – Pacta sunt servanda Development of human rights as common law- when international,
o Article 27 – International law cannot justify violations of regional, and national courts increasingly refer to one anothers case laws,
treaties and progressively building a common understanding of HR values –
o Article 53 – Treaty is void if conflicting with Jus Cogens COMPARATIVE JURISPRUDENCE IN HUMAN RIGHTS ADJUDICATION

When does a treaty become legally binding? Philippine Cases

Example of Jus Cogens?
1.) Sec of National Defense et al vs Raymond Manalo and Reynaldo
EMERGENCE OF HR AS INTL LAW Manalo (2008)

UN and regional human rights system 2.) Ang Ladlad vs Comelec (2010)

International level: 3.) Garcia vs Drilon (2013)

UN Charter, UDHR, Binding International Treaties and Conventions 4.) Enrile vs Sandiganbayan and People

Nine Core HR Treaties

UN Charter and State Obligation HUMAN RIGHTS AS INTL LAW

Article 55 – promotion of and universal respect for HR *Human Rights as Customary Intl Law

Article 56 – member nations to collective and separate actions for Read and make summary of the ff cases:
achievement of obligation under Art. 55
1.) Federal Republic of Germany vs Denmark and Federal Republic of
Art. 101 – Conflict between obligations under Charter and other Germany vs The Netherlands (Continental Shelf Cases ICJ Reports, 1969)
international agreement, UN Charter to prevail.
2.) Nicaragua vs USA (ICJ) Reports, 1986)
See Advisory Opinion (1971) on South African presence in (way clear) to
establish distinction based on sex, ethnicity as a violation of the UN
Charter HR Protection Beyond Treaties- HR As Customary Intl Law
Regional Level

Council of Europe, ECHR and ECIHR Have HR Obligations and State achieve the status of CIL?
Organization of American States, ACHR and IACHR,
African Union, African (Banjul) Charter and ACHPR Practice seen as building customary HR
-ASEAN Intergovernmental Commission on Human Rights
States official declaration supporting HR Participation in HR
instruments negotiations Incorporation of HR in national legal
What is unique about the ASEAN Commission?
order Diplomatic statements
EMERGENCE OF HR AS INTL LAW
HR Protection Beyond Treaties- As General Principles of Intl Law
*Jus Commune of Human Rights

Daileg· Gamayon· Honoridez· Pungos· Vergara

HUMAN RIGHTS
Midterm Slides by Judge Yvonne Artiaga
2016
-ICJ declarations that the UDHR and other non-treaty
Declarations and Agreements are a source of legal obligations
Read and make summary of the ff cases:
1.) US vs Iran (ICJ Reports 1980)
2.) UK of Great Britain and Northern Ireland vs Albania (Corfu
Channel Case ICJ Reports 1949)
3.) Portugal vs Australia (The Case Concerning East Timor ICJ
Reports 1995)
MECHANISMS TO ENSURE COMPLIANCE OF STATE OBLIGATIONS AND THEIR
LIMITATIONS
The UN and Human Rights Treaty Bodies Protection Mechanisms
Yvonne Cabaron Artiaga
Mechanisms to ensure compliance of Human Rights Obligations of States
1.) UN Charter protection mechanisms (Human Rights Council)
2.) Regional Human Rights Convention and their Courts (Regional
Courts)
3.) UN Treaty Bodies Human Rights
4.) National Human Rights Institutions under the Paris Principles as
the primary enforcer and guarantor of human rights
5.) Domestic Court
UN CHARTER HUMAN RIGHTS PROTECTION MECHANISMS
*The UN Charter
Daileg· Gamayon· Honoridez· Pungos· Vergara
3
-Art 103 of the UN Charter (see case of Sawhoyamaxa Indigenous
Community vs Paraguay, IACHR, 2006)
-Certain HR norms as jus cogens – slavery, slave trade, aggression,
genocide, racial discrimination, apartheid, torture (death penalty to
juveniles, refouelement;
-certain HR norms as erga omnes (see Barcelona Traction case; portugal
vs Australia); see also US vs Iran
*Human Rights As General Principles of Int’l Law
Read and make summary of the ff. cases:
1. United States v. Iran (ICJ Reports 1980)
2. United Kingdom of Great Britain and Northern Ireland v. Albania (
Corfu Channel Case ICJ Reports 1949)
3. Portugal v. Australia ( The Case Concerning East Timor ICJ Reports
1995)
Mechanisms To Ensure Compliance of State Obligations and Their
Limitations :
-The UN and Human Rights Treaty Bodies Protection Mechanisms
MECHANISMS TO ENSURE COMPLIANCE OF HUMAN RIGHTS OBLIGATIONS
OF STATES
1. UN Charter protection mechanisms (Human Rights Council)
2. Regional Human Rights Convention and their Courts (Regional
Courts)
3. UN Treaty Bodies Human Rights
4. National Human Rights Institutions under the Paris Principles as the
primary enforcer and guarantor of human rights
5. Domestic Courts
UN CHARTER HUMAN RIGHTS PROTECTION MECHANISMS
*The UN Charter
- Art. 103 of the UN Charter (see case of Sawhoyamaxa Indigenous
Community v. Paraguay , IACHR, 2006)
HUMAN RIGHTS
Midterm Slides by Judge Yvonne Artiaga
2016
- Certain HR norms as jus cogens – slavery , slave trade , aggression
, genocide , racial discrimination, apartheid, torture(death
penalty to juveniles, refouelement;
- Certain HR Norms as erga omnes (see Barcelona Traction case;
Portugal v. Australia ) ; see also US v. Iran
Charter –based Monitoring for HR
International Tribunal and Processes
- ICTY (Former Yugoslavia); ICTR and Gacaca Courts (Rwanda);
SPSL (Sierra Leone ); Special Courts in Cambodia , East Timor,
Kosovo , and Iraq
See Rome Statute of the ICC where individual human rights liability is
provided
*The NINE CORE HR Treaties
ICERD (1969), ICECSR (1976), ICCPR (1976), CEDAW (1981), CAT (1987),
CRC (1990), ICRMW (2003), CRPD (2008), ICPED (2010)
State Reporting
- Initial Report/Periodic Report; 1 to 2 years from entry into force;
thereafter every 4-5 years ; CED no periodic reports
- State report to indicate factors and difficulties in implementing
the treaty
- Shadow Reports from NGOs and civil society are accepted
- REVIEW PROCEDURE – if no State Report
- Concluding Observations and Recommendations
INDIVIDUAL COMMUNICATIONS
Consideration of Admissibility ; State ratification OF treaty and state
recognition of the treaty body; exhaustion of local remedies ; case not
investigated by any other int’l body; no reservation by the state party;
incident occurred after entry into force of the treaty (ratione temporis
rule); prescription rule under some treaties like CERD; consent of the
victims if communication not filed by the victims themselves
Daileg· Gamayon· Honoridez· Pungos· Vergara
4
Procedure: Archive or proceed based on sufficiency of information;
Screened for admissibility and merits; clarification/response by the state;
violation – VIEWS communicated to the State and the individual; follow-up
procedure to decisions through a special rapporteur or a working group
Exhaustion of Domestic Remedies Illustrative Cases
1.) Chief Bernard Ominayak and the Lubicon Lake Band v. Canada
2.) Henry v. Jamaica
3.) Hendriks v. Netherlands
Requirement on Non-referral to any other Int’l Body Illustrative Cases
1.) Sanchez Lopez v. Spain
2.) Leirvag. v. Norway
3.) Karakurt v. Austria
UN HUMAN RIGHTS TREATY BODIES PROTECTION MECHANISMS
INDIVIDUAL COMMUNICATIONS
Ratione Temporis Illustrative Cases
1. J.L. v. Australia
2. E. and A. Konye v. Hungary
3. Kurowski v. Poland
4. Aduayom et al v. Togo
INTER-STATE COMMUNICATIONS
- A state is allowed to submit communications about violation of HR
treaty by another state (never been used to date)
- State ratification of the treaty and state recognition of the treaty
body
- Ad Hoc Conciliation Commission; negotiation/arbitration
INQUIRY PROCEDURE
- Treaty bodies (CAT, CEDAW, CRPD, CED, CRC, CESCR) to initiate
inquiries of HR violations by the state
- Confidential (but in consultation with state
- Submission of findings to the state; state to respond with a six-
month deadline
General Comments/Recommendations
- Treaty bodies produce general comments or recommendations
as authoritative guides on how to IMPLEMENT &INTERPRET the
treaties
HUMAN RIGHTS
Midterm Slides by Judge Yvonne Artiaga 5
2016

- See General Comments No. 31 (2004) on ICCPR Art. 2 – a person
need not be located within a state party’s territory in order for
that have obligations towards that person, the person must
merely be “within the power or effective control” of that state
party
LIMITS ON STATE COMPLIANCE OF HUMAN RIGHTS OBLIGATIONS
RESERVATIONS
- VCLT (Art. 2 [1] [d]) – unilateral statement by a State to exlude or
modify the legal effect of certain provisions of the treaty in
application to that state
Allowed, unless 1.) prohibited by a treaty; 2.) treaty only provided
specified reservation which do not include the reservation in
question; 3.) incompatible with the object and purpose of the
treaty (Art. 19, VCLT)
- See also DECLARATIONS
CEDAW Reservation by Egypt and similar reservations by
predominantly Muslim countries: willing to comply with Article 2 on
elimination discrimination against women, provided compliance does
not run counter to the Islamic Shari’a
treatment; slavery, servitude, imprisonment for contractual
obligations, imprisonment for no crime; recognition as a person
everywhere, freedom of conscience, thought, and religion
DENUNCIATIONS
- Act by a State to terminate treaty obligation or to withdraw from
a treaty
- Art. 43 VCLT – independent existence of a treaty law and other
types/sources of international law (see Nicaragua v. US)
- Art. 54 VCLT – denunciation or termination allowed if provided
under treaty provisions or by consent of the parties (See ICJ
Opinion of 1951 on the Genocide Convention)
- Art. 56 VCLT – no denunciation or termination absent treaty
provisions allowing it, UNLESS, state parties intended possibility of
denunciation or when allowance of denunciation may be
implied from the nature of the treaty.
Questions:
Are denunciations allowed in HR treaties? (see Art. 21 of CERD; 1 st
Optional Protocol of ICCPR; 2008 Optional Protocol of ICESCR)
What do you think is the impact of allowing denunciations in HR
treaties to the universality of human rights?

ICCPR Reservation by France: on Article 27 on granting protection to

minorities and enjoyment of their culture (see Guedson v. France,
CCPR 1986)

UNCRC Reservation by UK on immigration and citizenship of children

and on detention of children with adults

Questions:
Why is reservation allowed in HR treaties? Is it necessary to allow it?
What do you think is the implication of allowing reservation to the
universality of human rights?

DEROGATIONS
- Allows the State to limit rights and freedoms in times of civil strife
and extreme situations or public emergencies
- Non-derogable rights under the ICCPR – arbitrary deprivation of
life; torture or cruel, inhuman or degrading punishment or

Daileg· Gamayon· Honoridez· Pungos· Vergara