Human Rights Reviewer Finals

Human Rights Reviewer (Finals) Pointers: A. Nature of International Human Rights Law (Lecture)  Two views of Conception 1. Orthodox (Philosophical) 2. Practical (Political) Orthodox defines human rights as those rights that each human has against every other the virtue of humanity. -more familiar in philosophical sense -inherent, inalienable inalienable

Practical human rights define a boundary of ***legitimate ***legitimate political action

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b. Doctrine of PSS and CRSS -more familiar in political sense -not ideal

*** legitimate *** legitimate political action - The STATE as state actors/ agents guarantee Human Rights - Practical view in HR specify how the state actors must and must not act toward their citizens - Any HR violation can be demanded against the State through interference by the international community

1) Doctrine of pacta sunt servanda - Compliance with international law that “agreement must be kept” - It entitles the State to require obligations be respected and to rely upon the obligations being respected 2) Doctrine of clausula rebus sic stantibus - Legal principle which allows for treaty obligations to be unfulfilled due to a FCIC (fundamental FCIC (fundamental change in circumstances) Q: What constitutes FCIC? FCIC? A: - Must be something that was never contemplated - It should have resulted in a radical ra dical transformation of the | extent of the obligations imposed

B. Sources of International Human Rights Law (Lecture + Petralba pp.28-39) [tig-jd] 1. Treaties/International Agreements 2. International Customary Law 3. General Principles of Law 4. Judicial Decisions Decisions and TMHQP c. 1.

2) Set terms, provisions, conditions, and proposals through the President/ Chief Executive 3) Concluded agreement will be SIGNED by the Heads of the State Implication: Signing Implication: Signing is mere expression of intention to be bo und by the agreement Obligation: to Obligation: to undergo procedure on respective countries In PHILIPPINES: Treaties of any kind require concurrence of the Senate, i.e. 2/3 votes of ALL members of Senate

Treaties/International Treaties/International Agreements - Commonly treaties - Entered into between sovereign states who agreed to bind themselves bilaterally the undertaking to faithfully comply with the provision of State - Agreed by sovereign for common CAUSE

Cases Prefect of La Gironde v Mahmedi  -

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How treaties are made 1) Delegation of States - Conference Conventions or the event meeting of States Human Rights Law REVIEWER| ATTY. BAYON UC Law 2A 2016 | Ezra Ramel a.

French government suspended a clause in an international treaty with Morocco which exempts the Moroccan nationals from VISA requirements. This was done on the ground of a FCIC of the wave of terrorist ter rorist attacks in Paris

UK v Iceland -

The advancement of fishing machineries of UK is not an FCIC since there is already contemplation contemplation of improvement

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Germany v Iceland -

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2.

2 views 1) Permissive view – does not lay total ban on the use of force; permitted to use of force in: (1) anticipation of future attack (2) rescue nationals abroad (3) humanitarian intervention (4) regime change (intervention for democracy 2) Restrictive View – total ban on the use of force except: (1) *self-defense (Art 51; Charter) (2) enforcement action (Chapter VII; Charter)

the change of circumstances alleged by Iceland cannot be said to have transformed radically | the extent of the jurisdictional obligation imposed the dispute relating to an extension of Icelandic fisheries jurisdiction is exactly of the character anticipated in the compromissory clause of the Exchange of Notes

International Customary Law

a. Requisites 1) Objective element – settled state practice 2) Subjective element – “belief” that the settled practice is obligatory 

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Practice: must be: 1. uniform and consistent 2. participation is widespread and representative North Continental Shelf Principle of equidistant

b. Jus cogens or peremptory norm – -

“compelling law” which is superior to all sources of human rights

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Requisites of jus cogens [pard-mo] 1) It must be a peremptory (nonderogable) norm of general intl law 2) It must be accepted and recognized by international community 3) There must be no derogation permitted 4) It can only be modified by a subsequent norm of general intl law of the same character

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c. Principle of non-use of force 

Art. 2.4 of Charter of the UN All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Human Rights Law REVIEWER| ATTY. BAYON UC Law 2A 2016 | Ezra Ramel

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Basic rule: threat or use of force is prohibited XPN: self-defense Force – “armed force” and not other means of political or economic pressure Nicaragua v. USA - Indirect use of force is also prohibited Threat of force – also prohibited; ultimatum announcing recourse to military measures *Self Defense – Art 51; UN Chapter The right of individual or collective selfdefense is restricted in an armed attack occurs Nicaragua v. USA – armed attack must be understood to include the sending by/on behalf of a State of armed bands or groups of such gravity that amount to actual armed attack conducted by regular forces Nicaragua v US Nicaragua claimed that US used armed force by laying mines in Nicaraguan waters and that US gave assistance in Nicaraguan guerillas ( contras) to overthrow the Nicaraguan government US argued that its activities was justified as collective self-defense in response to Nicaragua’s act of supporting the rebels in El Savador (friendly country of US)

Ruling: > 1. mere supply of funds to the contras , while undoubtedly an act of *intervention in the internal affairs of

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FORBIDS all States to intervene directly or indirectly in internal/external affairs of other States >>note: intervention is wrongful when it uses methods of coercion (coercion is present in case; direct form – military action; indirect form – support for subversive groups/terrorist)

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>2. Use of force is NOT ALLOWED except the right of self-defense

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3 criteria of self-defense (1) armed attack; (2) necessity of selfdefense; (3) proportionality In case of “collective self-defense”, the 3 criteria + “request” by the victim of armed attack

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Nicaragua, does not in itself amount to use of force >>note: principle of non-intervention

Pretty v UK (2002) - Right to life could not be interpreted as conferring a right to die - States must refrain from the unlawful taking of life and - State shall take appropriate steps to safeguard lives - Right to life is not corollary to the right to die Purdy v UK (2014) - Right to be respected of her life

General Principles of Law - Art 38(1) of Statute of ICJ- The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states

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General principles “recognized” by States Principles of municipal law should be regarded as sources of inspiration rather than as sources of rules of direct application


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Judicial Decisions and TMHQP - TMHQP – Teachings of the most highly qualified publicists of the various nations - can be referred to, not as a source of law as such, but as a means of recognizing the law established in other sources - There is no rule of stare decisis in international law. The decision of the Court has no binding force except between the parties and in respect of that particular case but it may refer to its past decisions and opinions.

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C. The International Bill of Rights (Petralba, pp.40-79) UDHR Universal Declaration of Human Rights declaration adopted by the UN General Assembly ideal standard held in common by nations around the world, but it bears no force of law. is a fundamental constitutive document of the United Nations widely cited in protecting the recognized human rights ICCPR International Covenant on Civil and Political Rights multilateral treaty adopted by the UN GA It commits its parties to respect the civil and political rights of individuals ICESCR International Covenant on Economic, Social and Cultural Rights multilateral treaty adopted by the UN GA It commits its parties to work toward the granting of economic, social , and cultural rights (ESCR) to the Non-SelfGoverning and Trust Territories and individuals

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4.

Rights and Freedoms ICCPR ICESCR [led-fair]

[LHEL]

1. right to life, 2. electoral rights 3. rights to due process 4. right to a fair trial

1. labor rights 2. right to health 3. right to education 4. right to an adequate standard of living

Ex. ECHR Prohibition on torture and slavery Non-retroactivity of laws

Inter-American CHR Prohibition against slavery and torture Prohibition against ex post facto law

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1.freedom of religion 2. freedom of speech 3. freedom of assembly D. Basic Principles (Lecture) 1. Domestic Jurisdiction  States have no right to encroach on another State’s internal affairs 

Based on principle of Equality and Sovereignty – State is free to choose any political, econ, soc and cultural system whatever it likes 

& based on principle of nonintervention – forbids all States to intervene D/I in internal/external affairs of other States 2. 

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The Exhaustion of Domestic and Local Remedies Rule It prevents any litigant from seeking recourse from international mechanisms until all remedies have been exhausted or settled within the State. Litigant is not necessary required to bring up the case to the Intl Court 

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case should be submitted first within State’s decision because of State’s Sovereignty Priorities of Rights - relates to the non-derogability of rights which rights occupy the PRIMARY POSITION of hierarchy of rights


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Clawback clauses/ limitations - absolute rights are however subject to “exceptions”

E. The United Nations' Main Bodies / Principal Organs (Lecture) 1. United Nations - international body - composed by community of nations - 193 member States - Founded in 1945 (Sec Gen Ban Kichmoon) 2.

Principal Organs 1) GA 2) SC 3) EcoSoc Council 4) Trusteeship 5) Int’l Court of Justice – The Hague (Netherlands) 6) Secretariat 1) -

General Assembly deliberative policy-making representative of the UN System setting the Standards of Laws and codification of laws

2) Security Council (SC) - promotion/maintenance of peace and security - peaceful settlements of disputes 3) Economic and Social Council (EcoSoc) - ❤ of UN Council - provides the 3 dimensions of Sustainable Development (econ, soc, envi)

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4) Trusteeship Council - Ensures trust territories (colony) not capable of self-governance by being administered by another Sovereign State (UN TC) - To promote the advancement of habitants - Achieve the aim of independence and self-governance - NOTE: TC is suspended in Nov 1, 1994; Palau – last trustee

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Genocide - any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 1) Killing members of the group; 2) Causing serious bodily or mental harm to members of the group; 3) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 4) Imposing measures intended to prevent births within the group; 5) Forcibly transferring children of the group to another group

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The term “as such” has great significance, for it shows that the offence requires intent to destroy a collection of people who have a particular group identity Heart of the crime: – desctruction of groups

5) Int’l Court of Justice – The Hague (Netherlands) - PRIMARY judicial arm/ organ of the UN 6) Secretariat - ADMINISTRATIVE arm of UN in its day to day event

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F. The United Nations System (Lecture) The Protection of the collective rights of groups and individuals

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purely individual

- Right to life - Freedom of

individual but necessarily expressed collectively

expression - Freedom of assembly (necessarily need another) - Freedom to manifest one’s belief

purely collective rights

collective & manifestation of individual rights

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- Freedom to selfdetermination - Freedom to be protected to the prohibition of genocide - Freedom to express one’s culture, language, religion = ethnic minorities

Prohibition of Genocide (Read also: Protected or Victim Groups) Convention Prevention on Prohibition on the Crime of Genocide


PROTECTIVE GROUPS The law protects four groups - national, ethnical, racial or religious groups. (defn: Akayesu case) 1) national group - collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties 2) ethnical group - generally defined as a group whose members share a common language or culture 3) racial group - based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors 4) religious group - one whose members share the same religion, denomination or mode of worship

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3.

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The Prohibition of Racial Discrimination 1965 UN International Convention on the Elimination of All Forms of Racial Discrimination defines: Racial Discrimination - shall mean any (derp)- rcde >distinction, >exclusion, >restriction, or >preference based on

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race, colour, descent, or natl ethnic origin

or that has the purpose of the nullifiying & impairing the Recognition of Exercise Enjoyment 

1. HR or 2. Fundamental freedom of PECSCr or any other field of public life

Art 2(1) of ICCPR State party shall respect & ensure the individuals its rights preset in the covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

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Art 26 of ICCPR All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. Any discrimination is prohibited All persons shall be guaranteed 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.

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The Principle of Self-Determination (2 Expressions) Self-determination - Purely collective right 2 Expressions 1) Internal Kind - SD within the realms of State - Ex. BBL – by asserting its group as distinct from the Other

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Ex. Kosovo – by disassociating the group from the State they belong to

The Protection of Minorities Minorites - They are treated as minority because: (2 views) 1) Outsider-looking in concept - Groups does not belong to the mainstream 2) Insider-defining concept - See themselves as minority Lovelace v Canada - Their right to be protected was violated - State should not prevent them from their enjoyment of their culture Art. 27 of ICCPR In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

2) External Kind - People as a group desires to establish their own State Human Rights Law REVIEWER| ATTY. BAYON UC Law 2A 2016 | Ezra Ramel

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G. The International Criminal Court (ICC) 1.

Four Organs and their Divisions (Lecture)


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2.

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Jurisdiction of ICC and some Exceptions (Lecture) Art 5 of the Rome Statute 4 principles that must concur a. Ratione materiae (what) b. Ratione temporae (when) c. Ratione soli (where) d. Ratione personae (who) e. + How f. + notice Ratione materiae (what) Cases that fall under jurisdiction of ICC that is, most heinous/ serious crimes concerned to ICC as a whole 1) Genocide - See Genocide section 2) Crimes against Humanity - Widespread/systematic attack against civilian 3) War Crimes - Violation of provisions in Geneva Convention 4) Crimes of Aggression - not defined in Rome Statute - (2010) Review Conference Kampalla Amendment - Any initiation, planning, preparation or execution of acts resorting to the illegal use of armed forces threatening the sovereignty, territorial integrity or political independence of another State

b. Ratione temporae (when) - Crime that are alleged to be committed after July 1 2002 fall under ICC - Any case before July 1, 2002 cant be taken cognizance by ICC - On the 1st day of the month following the 60th day of deposit


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Ratione soli (where) Principle of territoriality Jurisdiction of the ICC 1.a Crime is committed in territory of State party (SP) 1b. Crime is committed in territory of SP (not ratifying State) but accepted the jurisdiction of ICC 2a. If the person who committed the crime is a citizen of the SP 2b. If the person who committed the crime is NOT a citizen of the SP >(2b)If the person who committed the crime is NOT a citizen of the SP and >does not recognized the juri of ICC >crime is committed in the territory non-SP

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d. Ratione personae (who) - Citizen of SP + e. (5.) How – 3 ways 1) Initiated by the Prosecutor himself 2) SP initiates the investigator/ prosecution of the case 3) Victim: when it initiates, the case goes to Pretrial Chamber to assess WoN the alleged crime is cognizable by the ICC If the 4Ws concur, the Pretrial Chamber will transmit to prosecutor

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Q: If a State is not party, is there no way for it to be brought in the ICC? also not citizen of the SP A: Yes, (xpn) When the situation of the case is referred to Office of the Prosecutor by the UN Security Council NOTE: UN Security Council - responsible for promotion of advancement and preservation of peace If the case is referred to UN Security Council, there’s no need Ratione Soli to be complied Chapter 7 of the UN Charter Acts that threaten peace and security of breaches of Peace or Acts of Aggression Not needed that he is citizen of SP

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State decided not to prosecute the case through Decision/ Resolution ex. there’s no probable cause 3) There is trial on accused/ perpetrator XPT if there is showing that the conducted hearing was: a. Trial is perfunctorily conducted - Just to show that the conduct of trial was complied with to save the perpetrator from Criminal responsibility in the ICC b. The judges were impartial/ lack of independence

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ICC can send its members in other State for proper administration of justice

f. (6) Aside from 4W’s, NOTICE is very important to be issued to the State Party & the alleged perpetrator.

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Concept of Superior/ Command Responsibility (Petralba, pp. 137-138)

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Doctrine of Greatest Responsibility One who has the greatest responsibility for the crime committed will be brought in the ICC

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Key Feature of the JCC  Complementarity  Basic rule in Int’l Humana Rights Law  Seeming violation of crime that is widespread and systematic attack  Not directed to ICC first BUT first tried in National Laws Doctrine of Exhaustion of o Remedies Principle of Complementarity o - National Courts: Nat’l Laws  ICC: Court of Last Resort

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Case will be outright inadmissible by ICC if not exhausted remedies Instances: [PAp-Tpi] 1) Prosecution stage at SP XPN: showing Nat’l Prosecutor/ Investigator is unwilling. Unable to properly investigate/ prosecute - matter of proof and require cooperation of NGO, Intergovernmental Entities or other concerned agencies 2) Case already properly prosecuted/investigated


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Human Rights Reviewer Finals

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