HUMAN RIGHTS DEFINITION branch of public law that deals with the body of laws, rules, procedures, and institutions designed to respect, promote and protect human rights and the national, regional and international levels Human rights are the foundations of human existence and coexistence. Human rights are universal, indivisible and interdependent. Human rights are what make us human. They are the principles by which we create the sacred home for human dignity. Generally defined as those rights, which are inherent in our nature, and without which, we cannot live as human beings. Supreme, inherent, and inalienable rights to life, dignity and self-development. It is the essence of these rights that makes man human. International Humanitarian Law (IHL) is a branch of international law limiting the use of violence in armed conflicts by sparing those who do not or no longer directly participate in hostilities and limiting the violence to weaken the military potential of the enemy. It is usually referred to as International Humanitarian Law Applicable in Armed Conflicts which means international rules, established by treaties or custom, which are specifically intended to solve humanitarian problems directly arising from international or non-international armed conflicts and which, for humanitarian reasons, limit the right of Parties to a conflict to use the methods and means of warfare of their choice or protect persons and property that are, or maybe, affected by conflict. International Human Rights Law (IHRL) is a system of laws, both domestic and international which is intended to promote human rights. It is a set of international rules, established by treaty or custom, on the basis of which individuals and groups can expect and/or claim certain behavior or benefits from governments. Human rights are inherent entitlements which belong to every person as a consequence of being human. The Greek Philosophy Greek [Athenian] poet and lawgiver Solon conceived the "rule by law not by men" and ended aristocratic control over government and replaced it with the limited rule of perhaps one thousand wealthier male citizens. Draco, another prominent legislator in Athens who wrote his own code of laws, underscored the Greek commitment to developing law and refining government to meet the needs of the times. Greek philosopher Plato and Aristotle dwelt on the idea of philosopher-kings ruling the society. Plato advanced the concept of the common good which contains an unusual defense of equal rights for women and a universal moral standard for human conduct, in waror [in] peace. On the other hand, Aristotle evaluated values such as virtue, justice, and rights and showed that they are best preserved in a mixed government (not a pure democracy, oligarchy, or tyranny) with an economically strong body of citizens. Stoicism followed the philosophy of Plato and Aristotle. The Stoics believed in the existence of a natural law, the jus naturale, born of the lex aeterna, the cosmos’ law of reason and considered that all humans shared a spark of divinity and that the earth and cosmos belonged to one indissoluble process. As such, humans must live consistent with the laws of nature under the guiding principle of reason The Roman Law Roman law continued Greek Stoicism in the development of its concept of natural law which inspired the notion of universal rights for all human beings. Two Roman emperors, Octavian Human Rights Law Midterm Reviewer
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and Justinian, prominently helped develop Roman law. Octavian was an adherent of precedents which serves as the bulwark of efforts to institutionalize human rights in law. Justinian who inspired the term “justice” set standards for judging the legitimacy of laws and traditions, a vital precursor for effectively implementing human rights today The Judeo-Christian Tradition The contributions of Judeo-Christian to our modern conception of human rights are rooted in the fundamental principle of Judaism – and subsequently Christianity – that humankind was created in the image of God, and therefore every person has a divine link to the Creator. The idea of the brotherhood of mankind gives us the notion that each person is deserving of respect and dignity because each person is, at least in a small way, godlike. This reasoning alone provides a complete defense for human rights. The English Magna Carta, The Petition of Right, and the Bill of Rights The Magna Carta of 1215 or sometimes called the “Great Charter of Liberties” is often thought of as the corner-stone of liberty and the chief defense against arbitrary and unjust rule in England. However, Magna Carta established for the first time a very significant constitutional principle: that the power of the king could be limited by a written grant. Regarded as the first English Constitution, the Magna Carta guaranteed personal liberties and civil rights. It provided that no free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will he be proceeded with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land neither will he be sold, denied or delayed his right or justice nor shall a man be placed on trial upon his own unsupported statement, without producing credible witnesses to the truth of it. The American Declaration of Independence, US Constitution and Bill of Rights (1787) The American Declaration of Independence was the first piece of document that met a modern definition of human rights.The Declaration further asserted that the people could limit state power if their human rights were abridged and if government violated the inalienable rights to life, liberty and the pursuit of happiness, then the people could rebel against the duly constituted government. French Declaration of the Rights of Man and the Citizen The French Declaration of the Rights of Man and of the Citizen was born out of the womb of French’s revolutionaries. Approved by the National Assembly of France on August 26, 1789, and “believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments”, the Declaration recognized and proclaimed, “in the presence and under the auspices of the Supreme Being”, the rights of man and of the citizen of the French Republic The Covenant of the League of Nations and the United Nations Charter The League of Nations came into being after the end of World War I under the Treaty of Versailles. The League of Nation's task was simple - to ensure that war never broke out again and to maintain world peace. But more than this task of the League of Nations is the harnessing of claims of national self-determination by many countries during World War I. These claims began to gain legitimacy as a human rights criterion. Human Rights Law Midterm Reviewer
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The Philippine Constitutions (molded by historical struggle of the Filipino people) 1. The Biac-na-Bato Constitution 2. The Malolos Constitution 3. The 1935 Constitution 4. The 1943 Constitution 5. The 1973 Constitution 6. The Freedom Constitution 7. The 1987 Constitution
International Humanitarian Law of International Armed Conflicts (IHLIAC) refers to a set of international rules known as Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977 International Law is the law which regulates the intercourse of nations; the law of nations. The customary law which determines the rights and regulates the intercourse of independent nations in peace and war. It is the body of accepted rules which regulate the conduct of States and other international persons as they interact in the world community. It may also be understood as the body of rules or principles of actions which are binding upon civilized States in their relations with one another
BASIC CHARACTERISTIC OF HUMAN RIGHTS (IFIIIUI) Inherent - HR are not granted by any person or authority. - Examples are right to life and right to dignity. Fundamental - Without them the life and the dignity of man will be meaningless. - Right to individual liberty and security of a person or freedom of thought or religion. Inalienable - Cannot be taken away from a free individual Imprescriptible - Cannot be lost even by a long passage of time - Freedom of thought, conscience, and religion Indivisible - Not capable of being divided. - Cannot be denied even when other rights have already been enjoyed. Universal - All human beings irrespective of their origin, status or condition or place where they live - Universal for which it can be enforced without national border Human Rights Law Midterm Reviewer
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Interdependent - The fulfillment or exercise of one cannot be had without the realization of the other. - Includes the realization of man’s dignity Protocol I is concerned with the Protection of Victims of International Armed Conflicts and this is referred to as the International Humanitarian Law of International Armed Conflicts Protocol II is related to the Protection of Victims of Non-International Armed Conflicts. Together with Common Article 3 of the Four Geneva Conventions and Article 19 of the 1954 Hague Convention on Cultural Property, these instruments are known as International Humanitarian Law of Non-International Armed Conflicts Protocol III is about the Adoption of an Additional Distinctive Emblem. This protocol is applicable to both the International Humanitarian Law of International Armed Conflicts (IHL-IAC) and International Humanitarian Law of Non-International Armed Conflicts
INTERNATIONAL BILL OF HUMAN RIGHTS Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and its two (2) Optional Protocols, and International Covenant on Economic, Social and Cultural Rights. UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) Universal Declaration of Human Rights has been declared as a common standard of achievement for all peoples and all nations and that human rights should be protected by the rule of law at all cost. In view of this, the peoples of the United Nations through the Declaration have reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom. Thus, this fundamental document sustained the declaration that all human beings are born free; equal in dignity and rights; have the right to life, liberty and security of person; are entitled without any discrimination to equal protection of the law; and to a fair and public hearing by an independent and impartial tribunal. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS The International Covenant on Civil and Political Rights are called the First Generation Rights which derive primarily from the seventeenth- and eighteenth-century reformist theories associated with the English, American, and French revolutions. It conceives of human rights more in negative than positive terms. It favors the abstention rather than the intervention of government in the quest for human dignity. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS The International Covenant on Economic, Social and Cultural Rights are considered as the Second Generation Rights. These rights trace their origin from the socialist doctrine which advocates the equitable sharing of economic resources, services and welfare benefits to all the people. ALMA CONFERENCE DECLARATION OF 1978 - It expressed the need for urgent action by all governments, all health and development workers, and the world community to protect and promote the health of all people. It was the first Human Rights Law Midterm Reviewer
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international declaration underlining the importance of primary health care. The primary health care approach has since then been accepted by member countries of the World Health Organization (WHO) as the key to achieving the goal of "Health For All" but only in developing countries at first. This applied to all other countries five years later. This section defined primary health care and urged signatories to incorporate the concept of primary health care in their health systems. Primary health care has since been adopted by many member nations. Health as fundamental human rights
GENERATION OF HUMAN RIGHTS First Generation of Human Rights (Negative Rights) (Articles 2-21 of the Universal Declaration of Human Rights) It conceives of human rights more in negative than positive terms. It favors the abstention rather than the intervention of government in the quest for human dignity. This include the freedom from racial and equivalent forms of discrimination; the right to life, liberty, and the security of the person; freedom from slavery or involuntary servitude, freedom from torture and from cruel, inhuman, or degrading treatment or punishment; freedom from arbitrary arrest, detention, or exile; the right to a fair and public trial; freedom from interference in privacy and correspondence; freedom of movement and residence; the right to asylum from persecution; freedom of thought, conscience and religion; freedom of opinion and expression; freedom of assembly and association; and the right to participate in government , directly or through free elections; and the right to own property. Second Generation of Human Rights (Articles 22-27 of the Universal Declaration of Human Rights) The right to social security; the right to work and to protection against unemployment; the right to rest and leisure, including periodic holidays with pay; the right to a standard of living adequate for the health and well-being of self and family; the right to education; and the right to the protection of one’s scientific, literary, and artistic production. Third Generation of Human Rights (Article 28 of the Universal Declaration of Human Rights) Proclaims that “everyone is entitled to a social and international order in which the rights set forth in this Declaration can be fully realized. RIGHTS WHICH MAY NEVER BE LIMITED/SUSPENDED EVEN IN EMERGENCY SITUATIONS Rights to life Freedom from torture Freedom from enslavement or servitude Protection from imprisonment for debt Freedom from retroactive penal laws Right to recognition as a person before the law Freedom of thought, conscience and religion the privilege of the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it (Article 3, Section 15) Therefore, the protection of the right to life under the human rights law and under the humanitarian law is a right of every human being – may he be an ordinary person during peacetime Human Rights Law Midterm Reviewer
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or a civilian or a prisoner of war during armed conflicts – which can never be suspended either in a war or in any form of state of emergency NATURAL LAW THEORY IN HUMAN RIGHTS a) Religious / Theological Approach - Concept of the dignity of man as a consequence of human rights - Doctrine of a Supreme Being - The belief of a universal common creation means a common humanity and consequently universal, basic and fundamental rights. Since rights come from a Divine Source, they are inalienable and cannot be denied by mortal beings (man). - It is the interpretation of man loving his neighbor. The concept of brotherhood of men means respecting the rights of man. This illustrates the universal concept of human rights. In short, the dignity of human person is realized through love of fellowmen. b) Natural Law Theory - Originated from the Stoics and elaborated by Greek Philosophers Plato and Aristotle and later by ancient Roman law jurists perceives that the conduct of men must always conform to the law of nature. - Philosopher, in their search for the truth, must be in accordance with nature which is eternal. - The theory of natural law became the basis of the natural rights of man against oppressive rulers. The main characteristic of natural law is that natural law leaves vague what is part of the law of nations and, therefore, is inalienable. c) Historical Theory - Advocates that the human rights are not deliberate creation or the effort of man but they have already existed through the common consciousness of the people of what is right and just. Human rights developed through the common consciousness of men. - Unlike the positivist theory, the historical theory believes human rights exist through gradual, spontaneous and evolutionary process without any arbitrary will of any authority. - Customs and traditions (example) d) Functional or Sociological Approach Theory - Under the functional or sociological theory, human rights exist as a means of social control. Also known as the sociological approach, human rights exist to serve the social interest of society. - The approach is now to focus on rights in terms of people’s wants and concern. e) Positivist Theory - Also known as the positivism theory state that all rights and authority come from the state and what officials have promulgated. - The only law is what it is mandated by the sovereign. The human rights are to be found only in the enactment of a law with sanctions attached. Natural law and natural rights can be valid only if they can be enforced by the state. A right is enjoyed only if it is recognized and protected by legislation promulgated by the state. The source of rights can be found only in the promulgated law and enforce by the state. Human Rights Law Midterm Reviewer
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f) Marxist Theory - Emphasized the interest of society over an individual man’s interest. Individual freedom is recognized only after the interest of society is served. It is concerned with economic and social rights over civil or political rights of community. g) Theories of Justice - Respect for human rights serves the ends of justice. - Each person possesses inviolability founded on justice. The liberties of individual can be achieved only in a just society. - The general conception of justice is one of fairness and those social primary goods such as opportunity , income and wealth and self-respect are to be distributed equally. h) Theory based on equality and respect of human dignity - Equality with respect to basic liberty means the recognition of individual rights in the enjoyment of the basic freedoms such as freedom of speech, religion, assembly, fair trial and access to courts. - Government must treat their entire citizen equally. i) Theory based on Dignity of Man - Proceeds on the premise that human rights means sharing values of all identified policies upon which human rights depend on. The most important values are respect, power, knowledge, health and security. - The ultimate goal of this theory is a world community where there is democratic sharing and distribution of values. All available resources are utilized to the maximum an the protection of human dignity is recognized. j) The Utilitarian Theory - Mainly based on the philosophy of English jurist Jeremy Bentham, seeks to define the notion of rights in terms of tendencies to promote specified ends such as common good. - Believes that every human decision was motivated by some calculation of pleasure and pain. The goal is to promote the greatest happiness of the greatest number. - Under this doctrine, everyone is counted equally.
CATEGORIES OF HUMAN RIGHTS a) As Fundamental Freedom in Political Rights - Contained in the Bill of Rights of the 1987 Philippine Constitution Article 19 - Including freedom of conscience and religion; freedom of thought, belief, opinion and expression; freedom of the press and communication; freedom of association of peaceful assembly - Rights to privacy, reputation, and human dignity b) As Democratic Rights - Exercised in a democratic state - Right to vote and to participate in the electoral process, and the right to participate in public or governmental affairs. Human Rights Law Midterm Reviewer
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c) As Mobility Rights - National and international in character - Right to one’s country, and the freedom of movement within the country d) As Right to life, Liberty and Security of the Person - Represents the core of the fundamental rights which relate to the right to physical and personal integrity, consistent with human dignity. - Right to protection against political and other extrajudicial killings, the disappearances of persons, and torture and other cruel, inhuman or degrading treatment or punishment. e) As Legal Rights - Include the freedom from arbitrary arrest and detention and the protection against unreasonable searches and seizure, right to counsel, right to fair and public trial, presumption of innocence, and the right against self-incrimination - Rights to due process and to accused persons. f) As Rights of Equality - Everyone is equal before the law and is entitled to equal protection or the equal benefit of the law. g) As Economic, Social, and Cultural Rights - Considered more of standards to be observed by the state. - Include the right to social security, social insurance, protection and assistance to the family, right to adequate living, adequate food, clothing, housing and right to physical and mental health. h) As Worker’s Rights - Right to association, organize unions, bargain collectively, prohibition of forces labor, prohibition of children employment, and guarantee of minimum wages and other support. i) As Aboriginal Rights - Rights are associated with the rights of indigenous cultural tribes or communities j) As Reproductive Rights - Right to found a family and bear children, to gender sensitivity and the biomedical technology, and to family planning - Guarantee life of the unborn k) As Protective Rights of Persons in Armed Conflicts - Rights are provided in the international humanitarian law for the protection of children, women, and non-combatants during internal armed conflicts. l) As Right of Self-determination - Right of people to be free from colonial rule and decide their own destiny Human Rights Law Midterm Reviewer
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m) As Minority Group Rights - Right to the protection of ethnic linguistic and religious minorities.
SOCIAL WELFARE RIGHTS Economic, Social Rights – are those which the law confers upon the people to enable them to achieve social and economic development, thereby ensuring them their well-being, happiness and financial security. Examples are the right to property, education, and promotion of social justice. Cultural Rights – are those rights that ensure the well-being of the individual and foster the preservation, enrichment, and dynamic evolution of national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression.
NEGATIVE RIGHTS Civil Rights – those rights which the law will enforce at the instance of private individuals for the purpose of securing to them the enjoyment of their means of happiness. They include the rights against involuntary servitude and imprisonment for non-payment of debt or poll tax; the constitutional rights of the accused; the social economic rights; liberty of abode and of changing the same. Political Rights –are those rights which enable us to participate in running the affairs of the government either directly or indirectly. Examples are the right to vote, right to information on matters of public concern, and the right to initiative and referendum.
DOCTRINE OF PARENS PATRIAE In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, thus requiring state intervention.
FORMER UNDERSECRETARY JOC-JOC BOLANTE CASE (Right of Asylum in the US)
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THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES ARTICLE XIII HUMAN RIGHTS SECTION 17. (1) There is hereby created an independent office called the Commission on Human Rights. (2) The Commission shall be composed of a Chairman and four Members who must be natural-born citizens of the Philippines and a majority of whom shall be members of the Bar. The term of office and other qualifications and disabilities of the Members of the Commission shall be provided by law. (3) Until this Commission is constituted, the existing Presidential Committee on Human Rights shall continue to exercise its present functions and powers. (4) The approved annual appropriations of the Commission shall be automatically and regularly released. SECTION 18. The Commission on Human Rights shall have the following powers and functions: (1) Investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights; (2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of Court; (3) Provide appropriate legal measures for the protection of human rights of all persons within the Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal aid services to the under-privileged whose human rights have been violated or need protection; (4) Exercise visitorial powers over jails, prisons, or detention facilities; (5) Establish a continuing program of research, education, and information to enhance respect for the primacy of human rights; (6) Recommend to Congress effective measures to promote human rights and to provide for compensation to victims of violations of human rights, or their families; (7) Monitor the Philippine Government's compliance with international treaty obligations on human rights; (8) Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is necessary or convenient to determine the truth in any investigation conducted by it or under its authority; (9) Request the assistance of any department, bureau, office, or agency in the performance of its functions; (10) Appoint its officers and employees in accordance with law; and (11) Perform such other duties and functions as may be provided by law SECTION 19. The Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission, taking into account its recommendations. CHR IS NOT A QUASI- JUDICIAL BODY Not meant by fundamental law to be another court or quasi-judicial agency Most that may be conceded to the Commission in the way of adjudicative power is thatit may investigate, receive evidence and make findings of fact as regards claimedhuman rights violations involving civil and political rights. Fact finding is not adjudication, and cannot be likened to the judicial function of a courtof justice, or even a quasi-judicial agency or official
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