International Human Rights

INTERNATIONAL HUMAN RIGHTS(Public International Law)

Group Three

Honrales, John JamesTuliao, JeremyBulda, Ma. ZillahDizon, Maria PilarSagsagat, Mariane Joy

History Human Rights

In 539 B.C., the armies of Cyrus the Great, the first king of

ancient Persia, conquered the city of Babylon. But it was his

next actions that marked a major advance for Man. He freed the

slaves, declared that all people had the right to choose their

own religion, and established racial equality. These and other

decrees were recorded on a baked-clay cylinder in the Akkadian

language with cuneiform script.

Known today as the Cyrus Cylinder, this ancient record has now

been recognized as the world’s first charter of human rights. It is

translated into all six official languages of the United Nations

and its provisions parallel the first four Articles of the Universal

Declaration of Human Rights.

The Spread of Human Rights

From Babylon, the idea of human rights spread quickly to India, Greece and eventually Rome. There

the concept of “natural law” arose, in observation of the fact that people tended to follow certain

unwritten laws in the course of life, and Roman law was based on rational ideas derived from the

nature of things.

Documents asserting individual rights, such as the Magna Carta (1215), the Petition of Right (1628),

the US Constitution (1787), the French Declaration of the Rights of Man and of the Citizen (1789), and

the US Bill of Rights (1791) are the written precursors to many of today’s human rights documents.

The Magna Carta (1215) 

In 1215, after King John of England violated a number of ancient

laws and customs by which England had been governed, his

subjects forced him to sign the Magna Carta, which enumerates

what later came to be thought of as human rights. Among them

was the right of the church to be free from governmental

interference, the rights of all free citizens to own and inherit

property and to be protected from excessive taxes. It

established the right of widows who owned property to choose

not to remarry, and established principles of due process and

equality before the law. It also contained provisions forbidding

bribery and official misconduct.

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Widely viewed as one of the most important legal documents in the development of modern

democracy, the Magna Carta was a crucial turning point in the struggle to establish freedom.

Petition of Right (1628) 

The next recorded milestone in the development of human

rights was the Petition of Right, produced in 1628 by the English

Parliament and sent to Charles I as a statement of civil liberties.

Refusal by Parliament to finance the king’s unpopular foreign

policy had caused his government to exact forced loans and to

quarter troops in subjects’ houses as an economy measure.

Arbitrary arrest and imprisonment for opposing these policies

had produced in Parliament a violent hostility to Charles and to George Villiers, the Duke of

Buckingham. The Petition of Right, initiated by Sir Edward Coke, was based upon earlier statutes and

charters and asserted four principles: (1) No taxes may be levied without consent of Parliament, (2) No

subject may be imprisoned without cause shown (reaffirmation of the right of habeas corpus), (3) No

soldiers may be quartered upon the citizenry, and (4) Martial law may not be used in time of peace.

United States Declaration of Independence (1776)

On July 4, 1776, the United States Congress approved the

Declaration of Independence. Its primary author, Thomas

Jefferson, wrote the Declaration as a formal explanation of why

Congress had voted on July 2 to declare independence from Great

Britain, more than a year after the outbreak of the American

Revolutionary War, and as a statement announcing that the

thirteen American Colonies were no longer a part of the British

Empire. Congress issued the Declaration of Independence in

several forms. It was initially published as a printed broadsheet

that was widely distributed and read to the public.

Philosophically, the Declaration stressed two themes: individual rights and the right of revolution.

These ideas became widely held by Americans and spread internationally as well, influencing in

particular the French Revolution.

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The Constitution of the United States of America (1787) and Bill of Rights (1791)

Written during the summer of 1787 in Philadelphia, the

Constitution of the United States of America is the fundamental

law of the US federal system of government and the landmark

document of the Western world. It is the oldest written national

constitution in use and defines the principal organs of

government and their jurisdictions and the basic rights of

citizens.

The Bill of Rights protects freedom of speech, freedom of religion, the right to keep and bear arms, the

freedom of assembly and the freedom to petition. It also prohibits unreasonable search and seizure,

cruel and unusual punishment and compelled self-incrimination. Among the legal protections it affords,

the Bill of Rights prohibits Congress from making any law respecting establishment of religion and

prohibits the federal government from depriving any person of life, liberty or property without due

process of law. In federal criminal cases it requires indictment by a grand jury for any capital offense,

or infamous crime, guarantees a speedy public trial with an impartial jury in the district in which the

crime occurred, and prohibits double jeopardy.

Declaration of the Rights of Man and of the Citizen (1789)

In 1789 the people of France brought about the abolishment of the

absolute monarchy and set the stage for the establishment of the

first French Republic. Just six weeks after the storming of the

Bastille, and barely three weeks after the abolition of feudalism, the

Declaration of the Rights of Man and of the Citizen (French: La

Déclaration des Droits de l’Homme et du Citoyen) was adopted by

the National Constituent Assembly as the first step toward writing a

constitution for the Republic of France.

The Declaration proclaims that all citizens are to be guaranteed the

rights of “liberty, property, security, and resistance to oppression.” It argues that the need for law

derives from the fact that “...the exercise of the natural rights of each man has only those borders

which assure other members of the society the enjoyment of these same rights.” Thus, the Declaration

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sees law as an “expression of the general will, “intended to promote this equality of rights and to

forbid “only actions harmful to the society.”

The First Geneva Convention (1864)

In 1864, sixteen European countries and several American

states attended a conference in Geneva, at the invitation of the

Swiss Federal Council, on the initiative of the Geneva

Committee. The diplomatic conference was held for the purpose

of adopting a convention for the treatment of wounded soldiers

in combat.

The main principles laid down in the Convention and maintained

by the later Geneva Conventions provided for the obligation to

extend care without discrimination to wounded and sick military personnel and respect for and

marking of medical personnel transports and equipment with the distinctive sign of the red cross on a

white background.

The United Nations (1945)

World War II had raged from 1939 to 1945, and as the end drew

near, cities throughout Europe and Asia lay in smoldering ruins.

Millions of people were dead, millions more were homeless or

starving. Russian forces were closing in on the remnants of

German resistance in Germany’s bombed-out capital of Berlin. In

the Pacific, US Marines were still battling entrenched Japanese

forces on such islands as Okinawa.

In April 1945, delegates from fifty countries met in San Francisco full of optimism and hope. The goal

of the United Nations Conference on International Organization was to fashion an international body to

promote peace and prevent future wars. The ideals of the organization were stated in the preamble to

its proposed charter: “We the peoples of the United Nations are determined to save succeeding

generations from the scourge of war, which twice in our lifetime has brought untold sorrow to

mankind.”

The Charter of the new United Nations organization went into effect on October 24, 1945, a date that is

celebrated each year as United Nations Day.

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The Universal Declaration of Human Rights (1948) 

By 1948, the United Nations’ new Human Rights Commission

had captured the world’s attention. Under the dynamic

chairmanship of Eleanor Roosevelt—President Franklin

Roosevelt’s widow, a human rights champion in her own right

and the United States delegate to the UN—the Commission set

out to draft the document that became the Universal

Declaration of Human Rights. Roosevelt, credited with its

inspiration, referred to the Declaration as the international

Magna Carta for all mankind. It was adopted by the United

Nations on December 10, 1948.

In its preamble and in Article 1, the Declaration unequivocally

proclaims the inherent rights of all human beings: “Disregard

and contempt for human rights have resulted in barbarous acts which have outraged the conscience of

mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief

and freedom from fear and want has been proclaimed as the highest aspiration of the common

people... All human beings are born free and equal in dignity and rights.”

The Member States of the United Nations pledged to work together to promote the thirty Articles of

human rights that, for the first time in history, had been assembled and codified into a single

document. In consequence, many of these rights, in various forms, are today part of the constitutional

laws of democratic nations.

Examples of ‘humanitarian’ restrictions in war can be found in ancient texts, such as Sun Tzu’s The

Art of War, as well as in religious texts from Islam, Judaism, Christianity, and in Buddhist philosophy.

Modern international humanitarian law is found in treaties and customary international law.

SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW

● Treaties. These are written international agreements between States, governed by international

law. Treaties can go by many names, including conventions, agreements, and instruments; treaties

that relate to or attach in some way to previously adopted treaties are often called protocols. Treaties

have the advantage of expressly setting out binding obligations for States in their conduct. However,

States are often permitted to make reservations to treaties, whereby a State can modify the scope of

the legal obligation owed by the State under the treaty. Treaties also require a certain number of

States to ratify before the treaty can have legal effect.

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● Customary Law. It is a form of law that derives from two elements – State practice and what is

known as opinio juris – the belief that the practice is required by law. Identifying custom relies on

looking to certain elements including:

the degree of consistency and uniformity of the State practice;

the generality and duration of the practice; and

the interests of specially affected States.

There is a wealth of treaty law relating to armed conflict. However, the importance of customary

international humanitarian law should not be overlooked. Customary international law has the

potential to evolve and develop at a faster pace than treaty law, and can bind States where treaty law

does not; customary international law thus allows for universal application of certain rules.

Customary international law can also serve to fill in the gaps where the treaty law is insufficient or non-

existent – as is the case with non-international armed conflict. Most international humanitarian law

treaty rules are considered as having customary status.

Historical Sources

To identify the sources of IHL is to undertake a historical study of the development of the laws of war.

IHL treaties have often been developed in response to State behaviour in specific wars – often leading

to the charge that IHL is ‘one war behind reality’.

Battle of Solferino

A Swiss businessman, Henri Dunant, who was travelling through northern Italy, witnessed the

aftermath of the June 1859 Battle of Solferino, where tens of thousands of wounded and dying soldiers

had been left on the battlefield by their retreating armies. Appalled that no systematic relief was being

provided to these soldiers, Dunant rallied the townsfolk of nearby Castiglione to provide water, food,

and medical assistance. Upon his return home, Dunant wrote of his experience; his work Un Souvenir

de Solferino (A Memory of Solferino) became a best seller. One of Dunant’s suggestions was for the

creation of an international body that could coordinate relief measures for the wounded in the armed

forces during wartime. In conjunction with a Swiss charitable organisation (the precursor to the

International Committee of the Red Cross), Dunant lobbied European governments to implement his

suggestions. This advocacy resulted in the European States drafting and adopting what would become

the 1864 Geneva Convention.

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1864 Geneva Convention

The first multilateral international law treaty on armed conflict was the 1864 Geneva Convention for

the Amelioration of the Condition of the Wounded in the Field which provided that soldiers

rendered hors de combat due to illness or injury were to be protected and cared for, regardless of their

nationality or allegiance. It also provided for the protection of medical and religious personnel; and

respect for the execution of their duties in wartime.

Declaration of St Petersburg

Four years later, further development of the law of armed conflict came with the 1868 Declaration of

St Petersburg, the first of the modern laws of armed conflict to prohibit the use of a particular

weapon of war. The St Petersburg Declaration banned the use of explosive projectiles under ‘400

grammes weight’ designed either to explode on contact with soft tissue, or which were loaded with

‘fulminating or inflammable substances’. (A fulminating substance is one that explodes suddenly and

violently if struck or heated). The Declaration of St Petersburg banned the use of such projectiles,

determining that:

the progress of civilisation should have the effect of alleviating as much as possible the

calamities of war; the only legitimate object which States should endeavour to accomplish

during war is to weaken the military forces of the enemy … this object would be exceeded by

the employment of arms which uselessly aggravate the sufferings of disabled men, or render

their death inevitable; the employment of such arms would, therefore, be contrary to the laws

of humanity.

Marten’s Clause

The 1899 Conference also adopted the Martens Clause, a clause adopted to resolve a stalemate at

the conference regarding the status of resistance fighters who take up arms against an occupying

authority. Named for its author, Russian delegate to the Hague Conference Fyodor von Martens, the

clause was a compromise position which decreed that, until a more complete set of laws of armed

conflict could be decided upon, the community of nations should not assume the law was silent on

matters that were not codified. States were to consider themselves bound by certain minimum

fundamental standards of behaviour, as understood by considerations of ‘humanity’ and ‘public

conscience’. The Martens Clause was also included in the Preamble to the 1907 Hague Convention IV.

The intent of the Clause was to ensure that States did not attempt to argue that the absence of explicit

rules on certain situations allowed for unilateral arbitrary action in armed conflict.

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Weapons limitation

From the 1970s onwards, numerous weapons limitation treaties were debated and adopted. The first

of these was the 1972 Convention on the Prohibition of the Development, Production and

Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction,

which banned the production of chemical and biological weapons. This was followed in 1976 with the

Convention on the Prohibition of Military or Any Other Hostile Use of Environmental

Modification Techniques (ENMOD), prohibiting the military or other hostile use of environmental

modification techniques. In 1980, the Convention on the Prohibition or Restriction on the Use of

Certain Conventional Weapons which may be deemed to be Excessively Injurious or Have

Indiscriminate Effects was adopted, which sought to place limitations on the use of certain

conventional weapons. The Convention contains a number of protocols, which prohibit or limit the use

of:

weapons that injure by fragments which are not detectable in human body by X-rays (Protocol I);

on-detectable anti-personnel mines (Protocol II);

incendiary weapons (Protocol III); and

laser weapons that cause permanent blindness (Protocol IV).

The fifth protocol to the Conventional Weapons Convention requires parties to the Protocol clear any

unexploded ordnance, such as cluster bombs, land mines, and explosive weapons stockpiles, at the

cessation of hostilities.

Permissible means of warfare

Additional treaties limiting the permissible means of warfare include the 1993 Convention on the

Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and

on their Destruction, and the 1997 Ottawa Convention on the Prohibition of the Use,

Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction. The

most recent international weapons treaty, the 2008 Cluster Munitions Convention, which banned

the use of certain types of cluster munitions (weapons which contain smaller explosive sub-munitions

designed to scatter in the air and thus cover a wider area with explosives).

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APPLICATION OF INTERNATIONAL HUMANITARIAN LAW

DOMESTIC APPLICATION 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 dualist. 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 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 violation by the State of its treaty obligations. The lex posterior principle is often resorted to in dualist systems: 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 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

Laws (e.g., 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 Philippines Constitutions 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. Generally accepted principles of international law comprise just one of the four (4) sources international law. In so far as the other source, i.e., treaty, is concerned, such does not become a law until Congress enact one translating the treaty into a law of local application, in dualist fashion.

INTERNATIONAL APPLICATION OF IHRL

The consent of a State to be bound by a treaty may be expressed signature, exchange of intruments constituting a treaty, ratification, acceptance, approval or accession, or by any other means, if so agreed.

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 the State. Notwithstanding the signature, may only operate as a means of authentication and to show the openness of the signatory State for further discussion on the treaty-making process.

A “Signature ad referendum,” means that the signature becomes definitive only once the signature is confirmed by the State. “Definitive signature” operates as the consent of the State to be bound by a treaty is not subject to ratification, acceptance or approval.

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Exchange of the letter or notes:Consent can be expressed through exchange of letters or notes. Here, there will necessarily be

two (2) letters, if the treaty is bilateral, with at least one (1) from each party.

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.”

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.”

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 its purports to exclude or to modify the legal effect or certain provisions of the treaty in their application to the State.

Reservations are not allowed when:

1) It is prohibited by the treaty;2) It is not included in the reservations specified by the treaty;3) It is incompatible with the object and purpose of the treaty.

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.

Modification:

Modification is the variation of a certain treaty provisions only as between particular parties of a treaty, while in their n 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.

Denunciation

Denunciation means the withdrawal by a State Party from a treaty. Treaties such as the CRC, ICERD, and CAT allow denunciation; ICCPR, ICESCR and CEDAW do not allow denunciation.

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Philippines contribution to International Human Rights Law

On December 10, 1948 the Universal Declaration of Human Rights was adopted by the General

Assembly by a vote of 48 in favor of the declaration, none against, and 8 abstentions. The Philippines

gave its vote in favor of the declaration.

Other Human Rights Treaties that the Philippines is a signatory:

- Universal Declaration of Human Rights (UDHR)

- International Covenant on Civil and Political Rights (ICCPR), ratified on October 23, 1986

- United Nations Conventions Against Torture, Acceded on June 18, 2986

- Convention on the Elimination of All Forms of Racial Discrimination, ratified September 15,

1967

- International Covenant on Economic, Social and Cultural Rights, ratified on June 07, 1947

- United Nations Convention on the Protection of the Rights of all Migrant workers and Members

of Their Families, ratified July 05, 1995

- Convention on the Elimination of All Forms of Discrimination Against Women, ratified on

August 05, 1981

- Convention on the Rights of the Child, ratified on August 21, 1990

- Convention on the Rights of the Persons with Disabilities, ratified on April 15, 2008

The Presidential Human Rights Committee (PHRC) under the Administrative Order No. 29 dated

January 27, 2002 and No. 163 dated December 08, 2006 was created to see to it that the Philippines is

compliant and adheres to its obligations under the International human rights instruments, including

its timely submission of treaty implementation reports to the United Nations.

INTERNATIONAL BILL OF RIGHTS

International human rights law lays down obligations which States are bound to respect. By

becoming parties to international treaties, States assume obligations and duties under international

law to respect, to protect and to fulfil human rights.  The obligation to respect means that States must

refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect

requires States to protect individuals and groups against human rights abuses. The obligation to fulfil

means that States must take positive action to facilitate the enjoyment of basic human rights.

Through ratification of international human rights treaties, Governments undertake to put into

place domestic measures and legislation compatible with their treaty obligations and duties. The

domestic legal system, therefore, provides the principal legal protection of human rights guaranteed

under international law. Where domestic legal proceedings fail to address human rights abuses,

mechanisms and procedures for individual and group complaints are available at the regional and

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international levels to help ensure that international human rights standards are indeed respected,

implemented, and enforced at the local level.

Through the achievements of the UDHR, the International Covenant on Civil and Political

Rights, and the International Covenant on Economic, Social and Cultural Rights entered into force in

1976. The two Covenants have developed most of the rights already enshrined in the UDHR, making

them effectively binding on States that have ratified them. They set forth everyday rights such as the

right to life, equality before the law, freedom of expression, the rights to work, social security and

education. Together with the UDHR, the Covenants comprise the International Bill of Human Rights.

UNITED NATIONS CHARTER

The recognition and respect of human rights is one of the main objectives of the United

Nations Organization. One of the most important purpose of United Nations Organization is to reaffirm

faith in fundamental human rights and the dignity and worth of human person and the promotion and

encouragement of respect for human rights and for fundamental freedoms for all without distinction as

to race, sex, language, or religion.

Every article in the Charter which refers to the purposes of the UN is deemed to include the

promotion of human rights but there are seven articles as regards to human rights.

Article 10 of the Charter suggests to the General Assembly to discuss any matter within the

scope of the Charter which may concern human rights.

Article 13 of the UN Charter directs the General Assembly, the task of initiating studies and

recommendations for the purpose of assisting in the realization of human rights and fundamental

freedoms.

Article 55(c) together with Article 56, commits the United Nations to promote “universal

respect for the observance of human rights and fundamental freedoms.” It provides the legal

obligations of all members to pledge themselves and take joint and separate actions in cooperation

with the Organization for the advancement of the purposes set forth in Article 55 (c).

Article 62 (2) of the UN Charter states that the Economical Social Council may make

recommendations for the purpose of promoting respect for an observance for human rights and

fundamental freedom for all. The said provision was intended to prevent discrimination, and to protect

the rights of minorities.

Article 69 (2) provides that the Economic and Social Council, with the approval of the General

Assembly, may perform services at the request of any member state. This is the basis for the advisory

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services program on human rights such as providing experts or granting fellowships or organizing

seminars.

Article 76 mandates the Trusteeship System to encourage and respect for the human rights

and for fundamental freedom for all without distinction as to race, sex, language or religions and to

encourage recognition of the interdependence of the peoples of the world.

UN COMMISSION ON HUMAN RIGHTS

The Economic and Social Council (ECOSOC) established the UN Commission on Human Rights

to assist ECOSOC in all matters relating to human rights. It is composed of 43 members and deals with

all aspects of human rights issues involving the participation of all sectors of the international

committee. The Commission undertakes special tasks assigned to it by the General Assembly or the

ECOSOC, including the investigation of all allegations of human rights violations. It coordinates

activities relating to human rights through the United Nations System.

UNIVERSAL DECLARATION OF HUMAN RIGHTS

The Universal Declaration of Human Rights is generally agreed to be the foundation of

international human rights law. Adopted in 1948, the UDHR has inspired a rich body of legally binding

international human rights treaties. It continues to be an inspiration to us all whether in addressing

injustices, in times of conflicts, in societies suffering repression, and in our efforts towards achieving

universal enjoyment of human rights.

It represents the universal recognition that basic rights and fundamental freedoms are

inherent to all human beings, inalienable and equally applicable to everyone, and that every one of us

is born free and equal in dignity and rights. Whatever our nationality, place of residence, gender,

national or ethnic origin, colour, religion, language, or any other status, the international community

on December 10 1948 made a commitment to upholding dignity and justice for all of us.

The drafters of the Universal Declaration of Human Rights recognized the inherent dignity and

of equal and inalienable rights of all members of the human family as the foundation of freedom,

justice and peace in the world. Thus, as stated in Article 1 of UDHR:

“All human beings are born free and equal in dignity. They are endowed with reason and

conscience and should act towards one another with a spirit of brotherhood.”

The Universal Declaration of Human Rights was a mere Declaration of norms to serve a as a

common standard of achievement for all nations. It is not directing members of the UN to enforce

them. No sanctions or enforcement machinery was set up or available. However, Article 55 of the

Charter directs members to pledge themselves to the joint and separate action in cooperation with the

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United Nations to achieve universal respect for an observance of human rights and fundamental

freedoms. Although it is not a legally binding document, most nations have recognized the principles of

the Declaration which have gained moral weight and persuasion in the domestic offices. Its principles

have been adopted in most state constitutions.

THE LEGALY BINDING COVENANTS

In order to achieve a positive protection of human rights two International Covenants were

adopted in 1966, namely: the International Covenant on Economic, Social and Cultural Rights and the

International Covenant on Civil and Political Rights designated to be legally binding on all the States

that ratify them.

The two International Covenants provide wider and in more detail, the rights set forth in the

UDHR. As treaties, the states that ratify them are legally obliged to respect their provisions. In

addition, the two Covenants set up mechanisms through which the United Nations can oversee the

implementation by the States Parties.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Civil and political rights are the rights which the law will enforce at the instance of individuals

without discrimination for the enjoyment of their lives, liberty and means of happiness. Most of the civil

and political rights enumerated in the UDHR are reiterated in more detail in the ICCPR.

The Covenant was adopted by the U.N. General Assembly in 1966 and came into force in 1976.

The International Covenant on Civil and Political Rights is a key international human rights treaty,

providing a range of protections for civil and political rights. The ICCPR obligates countries that have

ratified the treaty to protect and preserve basic human rights, such as: the right to life and human

dignity; equality before the law; freedom of speech, assembly, and association; religious freedom and

privacy; freedom from torture, ill-treatment, and arbitrary detention; gender equality; the right to a fair

trial, and; minority rights. The Covenant compels governments to take administrative, judicial, and

legislative measures in order to protect the rights enshrined in the treaty and to provide an effective

remedy.

Simon vs. Commission on Human Rights G.R. No. 100150 January 05, 1994

Facts: Petitioner Mayor Simon asks to prohibit CHR from further hearing and investigating "demolition case" on vendors of North EDSA.

Issue: Whether the CHR is authorized to hear and decide on the "demolition case" and to impose a fine for contempt.

Ruling: Section 18, Article XIII, of the 1987 Constitution empowered the CHR to investigate all forms of human rights violations involving civil and political rights. The demolition of stalls,

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sari-sari stores and carenderia cannot fall within the compartment of "human rights violations involving civil and political rights".

Human rights are the basic rights which inhere in man by virtue of his humanity and are the same in all parts of the world.

Human rights include civil rights (right to life, liberty and property; freedom of speech, of the press, of religion, academic freedom; rights of the accused to due process of law), political rights (right to elect public officials, to be elected to public office, and to form political associations and engage in politics), social rights (right to education, employment and social services.

Human rights are entitlements that inhere in the individual person from the sheer fact of his humanity...Because they are inherent, human rights are not granted by the State but can only be recognized and protected by it.

Human rights includes all the civil, political, economic, social and cultural rights defined in the Universal Declaration of Human Rights.

Human rights are rights that pertain to man simply because he is human. They are part of his natural birth, right, innate and inalienable.

CIVIL RIGHTS - are those that belong to every citizen and are not connected with the organization or

administration of the government.

POLITICAL RIGHTS - are rights to participate, directly or indirectly, in the establishment or

administration of the government.

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

The ICESCR has its roots in the same process that led to the Universal Declaration of Human

Rights. A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San Francisco

Conference which led to the founding of the United Nations, and the Economic and Social Council was

given the task of drafting it. Early on in the process, the document was split into a declaration setting

forth general principles of human rights, and a convention or covenant containing binding

commitments. The former evolved into the UDHR and was adopted on 10 December 1948.

ICESCR trace their origin from the socialist doctrine which advocates the equitable sharing of

economic resources, services and welfare benefits to all people. This is commonly known as social

welfare rights, they are generally stated as positive undertakings or obligations of the government to

ensure the economic well-being of the people. They are also called affirmative rights as they are

viewed as goals or aspirations that government should provide for its citizens depending upon its

resources.

The core provisions of ICESCR are the labor rights, right to social security, right to family life,

right to an adequate standard of living, right to health, right to education. right to participate in

cultural life.

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Article 2 of the ICESCR provides the principle of progressive realization. The said principle

acknowledges that some of the rights may be difficult in practice to achieve in a short period of time,

and that states may be subject to resource constraints, but requires them to act as best they can

within their means.

The principle differs from that of the ICCPR, which obliges parties to "respect and to ensure to

all individuals within its territory and subject to its jurisdiction" the rights in that Convention.[23]

However, it does not render the Covenant meaningless. The requirement to "take steps" imposes a

continuing obligation to work towards the realisation of the rights. It also rules out deliberately

regressive measures which impede that goal. The Committee on Economic, Social and Cultural Rights

also interprets the principle as imposing minimum core obligations to provide, at the least, minimum

essential levels of each of the rights. If resources are highly constrained, this should include the use of

targeted programmes aimed at the vulnerable.

The Committee on Economic, Social and Cultural Rights regards legislation as an indispensable

means for realising the rights which is unlikely to be limited by resource constraints. The enacting of

anti-discrimination provisions and the establishment of enforceable rights with judicial remedies within

national legal systems are considered to be appropriate means. Some provisions, such as anti-

discrimination laws, are already required under other human rights instruments, such as the ICCPR.

INTERNATIONAL CRIMINAL COURT

The International Criminal Court is an intergovernmental organization and international

tribunal that sits in The Hague in the Netherlands. The ICC has the jurisdiction to prosecute individuals

for the international crimes of genocide, crimes against humanity, and war crimes. The ICC is intended

to complement existing national judicial systems and it may therefore only exercise its jurisdiction

when certain conditions are met, such as when national courts are unwilling or unable to prosecute

criminals or when the United Nations Security Council or individual states refer investigations to the

Court. The ICC began functioning on 1 July 2002, the date that the Rome Statute entered into force.

The Rome Statute is a multilateral treaty which serves as the ICC's foundational and governing

document. States which become party to the Rome Statute, for example by ratifying it, become

member states of the ICC. Currently, there are 123 states which are party to the Rome Statute and

therefore members of the ICC.

ICC has jurisdiction over crimes against humanity, genocide, crimes of aggression and war

crimes. The Rome Statute provides that all persons are presumed innocent until proven guilty beyond

reasonable doubt, and establishes certain rights of the accused and persons during investigations.

These include the right to be fully informed of the charges against him or her; the right to have a

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lawyer appointed, free of charge; the right to a speedy trial; and the right to examine the witnesses

against him or her.

To ensure "equality of arms" between defence and prosecution teams, the ICC has established

an independent Office of Public Counsel for the Defence (OPCD) to provide logistical support, advice

and information to defendants and their counsel. The OPCD also helps to safeguard the rights of the

accused during the initial stages of an investigation.

One of the great innovations of the Statute of the International Criminal Court and its Rules of

Procedure and Evidence is the series of rights granted to victims. For the first time in the history of

international criminal justice, victims have the possibility under the Statute to present their views and

observations before the Court.

Participation before the Court may occur at various stages of proceedings and may take

different forms, although it will be up to the judges to give directions as to the timing and manner of

participation. Participation in the Court's proceedings will in most cases take place through a legal

representative and will be conducted "in a manner which is not prejudicial or inconsistent with the

rights of the accused and a fair and impartial trial".

The victim-based provisions within the Rome Statute provide victims with the opportunity to

have their voices heard and to obtain, where appropriate, some form of reparation for their suffering. It

is the aim of this attempted balance between retributive and restorative justice that, it is hoped, will

enable the ICC to not only bring criminals to justice but also help the victims themselves obtain some

form of justice. Justice for victims before the ICC comprises both procedural and substantive justice, by

allowing them to participate and present their views and interests, so that they can help to shape

truth, justice and reparations outcomes of the Court.

INTERNATIONAL HUMANITARIAN LAW

International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit

the effects of armed conflict. It protects persons who are not or are no longer participating in the

hostilities and restricts the means and methods of warfare. International humanitarian law is also

known as the law of war or the law of armed conflict.

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 and civilians.

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It is that branch of international law which seeks to limit the effects of armed conflict by

protecting persons who are not participating in hostilities, and by restricting and regulating the means

and methods of warfare available to combatants. IHL is inspired by considerations of humanity and the

mitigation of human suffering. "It comprises a set of rules, established by treaty or custom, that seeks

to protect persons and property/objects that are (or may be) affected by armed conflict and limits the

rights of parties to a conflict to use methods and means of warfare of their choice". It includes "the

Geneva Conventions and the Hague Conventions, as well as subsequent treaties, case law, and

customary international law." It defines the conduct and responsibilities of belligerent nations, neutral

nations, and individuals engaged in warfare, in relation to each other and to protected persons, usually

meaning non-combatants. It is designed to balance humanitarian concerns and military necessity, and

subjects’ warfare to the rule of law by limiting its destructive effect and mitigating human suffering.

TWO COMPONENTS of IHL

a. The laws of war or armed conflict, which were covered in The Hague Convention of 1899

and 1907. These laws define combatants and lay down the rules of combat.

b. The laws for the protection of the victims of war, which were the focus of the four (4)

Geneva Conventions in 1949.

RIGHTS AND FREEDOM under the INTERNATIONAL BILL OF RIGHTS

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 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 echoes this declaration in its Article 3, Stating

that ‘The states parties to the present Covenant undertake to ensure the equal rights 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 but rather to equal opportunity to enjoy human rights.

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Borovsky v Commissioner of Immigration

Facts: Borovsky claims to be a stateless citizen, born in Shanghai, China of Russian parentage. He came to the Philippines in 1936 and had resided here ever since, if the period of his detention be included.

On June 24, 1946, by the order of Commissioner of Immigration of the Philippines the petitioner was arrested for investigation as to his past activities. A warrant for deportation was issued by the Deportation board on the grounds that he has been found to be an undesirable alien, a vagrant and habitual drunkard.

Petitioner was deported to China but he was not provided with an entry visa because he was not a national of China. He was therefore brought back to Manila and was confined to the New Bilibid prison in Muntinlupa. On December 8, 1947, was granted provisional release by the President through Secretary of Justice for period of Six months. Before the expiration of that period, the immigration department rearrested him and brought him to Cebu for the purpose of placing him on board a Russian vessel carrying out deportation order against him. However, said deportation failed to materialize as the captain of the ship refused to take him on board without permission from the Russian government.

Petitioner then filed for a writ of habeas corpus to which the court denied as mainly on the ground that such detention was merely temporary. Over two years had elapsed since the decision was promulgated, but still the Government had not found ways and means of removing the petitioner out of the country.

Issue: Whether or not petitioner be continuously detained without a fix period pending deportation.

Held: Aliens illegally staying in the Philippines have no right of Asylum therein even if they are “stateless” which the petitioner claims to be a Foreign Nationals, not enemy against whom no criminal charges have been formally made or judicial order issued, may not be indefinitely kept in detention. The protection against deprivation of liberty, without due process of law except for crimes committed against the laws of the land is not limited to Philippine citizens but extends to all residents, except enemy aliens regardless of nationality.

And in a resolution entitled “Universal Declaration of Human Rights” approved by the General Assembly of the United Nation of which the Philippines is a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human beings were proclaimed. It was there resolved that “All human beings are born free and equal in degree and rights” (Art 1); that “Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, nationality or other opinion or other status.

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Right to life, liberty and security

Article 3 of the Universal Declaration of Human Rights is Article 3, which provides that ‘Everyone has

the right to life, liberty and security of persons.’ The key political and civil rights of a person that must

be protected by the state.

The Philippine Constitution contained a similar provision in its bill of rights. Art 3 provides that, ‘No

person shall be deprived of life, liberty or property without due process of law, nor shall any person be

denied the equal protection of the laws.’

Can the right to life be waived? Does it include the right to end one’s life? Does a person have a right

to die?

Case of Pretty v UK

Mrs. Pretty suffers from motor neurone disease, and by the time her case was heard before the

Strasbourg Court she was essentially paralysed from the neck downwards, had virtually no

decipherable speech and had to be fed by tube. As she was frightened at the suffering and

indignity she would suffer if the disease ran its course, she wanted to be able to control how

and when she died and thereby be spared that suffering and indignity. She was prevented by

her disease from taking such a step without assistance. She argued that she had the right to

life as well as the right to die.

The court ruled that the petitioner did not have the right to die, and no such right can be

derived from the right to life.

On the same day following the decision of Mrs. Pretty, another terminally ill patient paralysed

from the neck down has won the legal right to die by having her treatment withdrawn. She

ended her life in 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 inconsistency in the decision of the two cases, there was a marked

difference between the two: in the case of Mrs. Pretty she wanted to be killed while, Miss b

wanted medical treatment to be stopped.

The right to liberty and security is further enunciated in Article 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.’

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The right to liberty and security is not absolute and may be restricted on valid grounds, such as

imprisonment of a convict by way of penalty for the commission of an offense, or the hospitalization of

insane persons.

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.” Aim of imprisonment is the

rehabilitation and reformation of the convicts.

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 presumed innocent until the contrary is

proved.

WHAT IS HUMAN DIGNITY?

Dignity of Human being is an essential concept in the society as well as in the morality, because

through it the quality and honour of the people can be determined, and from the sense of dignity the

concept of Human rights can also be measured.  There is a common belief that the dignity of human

being can be measured through commercial / economic status of the people of the society and the

G.N. P (Gross  National Profit) of the particular state to be used as an instrument to measure of  quality

of human life.  But it is not absolutely correct.  The quality of human life is a very complex

phenomena.  It is not only confined in the commercial or economic system, rather it touches the

various spheres of the people.  i.e. health , food, education, liberty, equality, franchise of the citizens

and so on.  We have a need to know, how people are enabled to live in the society in dignified manner.

Right against slavery

The Slavery Convention, 1926. “Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.”

Universal Declaration of Human Rights, 1948. “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”

Supplementary Convention on the Abolition of Slavery, The Slave Trade, and Institutions and Practices Similar to Slavery, 1956. “Debt bondage, serfdom, forced marriage and the delivery of a child for the exploitation of that child is all slavery like practices and requires criminalization and abolishment.”

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Dred Scott v Sanford (1857)

In Dred Scott v. Sandford (argued 1856 -- decided 1857), the Supreme Court ruled that Americans of African descent, whether free or slave, were not American citizens and could not sue in federal court. The Court also ruled that Congress lacked power to ban slavery in the U.S. territories. Finally, the Court declared that the rights of slave owners were constitutionally protected by the Fifth Amendment because slaves were categorized as property.

The controversy began in 1833, when Dr. John Emerson, a surgeon with the U.S. Army, purchased Dred Scott, a slave, and eventually moved Scott to a base in the

Wisconsin Territory. Slavery was banned in the territory pursuant to the Missouri Compromise. Scott lived there for the next four years, hiring himself out for work during the long stretches when Emerson was away. In 1840, Scott, his new wife, and their young children moved to Louisiana and then to St. Louis with Emerson. Emerson died in 1843, leaving the Scott family to his wife, Eliza Irene Sanford. In 1846, after laboring and saving for years, the Scotts sought to buy their freedom from Sanford, but she refused. Dred Scott then sued Sanford in a state court, arguing that he was legally free because he and his family had lived in a territory where slavery was banned. In 1850, the state court finally declared Scott free. However, Scott's wages had been withheld pending the resolution of his case, and during that time Mrs. Emerson remarried and left her brother, John Sanford, to deal with her affairs. Mr. Sanford, unwilling to pay the back wages owed to Scott, appealed the decision to the Missouri Supreme Court. The court overturned the lower court's decision and ruled in favor of Sanford. Scott then filed another lawsuit in a federal circuit court claiming damages against Sanford's brother, John F.A. Sanford, for Sanford's alleged physical abuse against him. The jury ruled that Scott could not sue in federal court because he had already been deemed a slave under Missouri law. Scott appealed to the U.S. Supreme Court, which reviewed the case in 1856. Due to a clerical error at the time, Sanford's name was misspelled in court records.

The Supreme Court, in an infamous opinion written by Chief Justice Roger B. Taney, ruled that it lacked jurisdiction to take Scott's case because Scott was, or at least had been, a slave. First, the Court argued that they could not entertain Scott's case because federal courts, including the Supreme Court, are courts of

"peculiar and limited jurisdiction" and may only hear cases brought by select parties involving limited claims. For example, under Article III of the U.S. Constitution, federal courts may only hear cases brought by "citizens" of the United States. The Court ruled that because Scott was "a negro, whose ancestors were imported into this country, and sold as slaves," and thus "[not] a member of the political community formed and brought into existence by the Constitution," Scott was not a citizen and had no right to file a lawsuit in federal court.

Second, the Court argued that Scott's status as a citizen of a free state did not necessarily give him status as a U.S. citizen. While the states were free to create their own citizenship criteria, and had done so before the Constitution even came into being, the Constitution gives Congress exclusive authority to define national citizenship. Moreover, the Court argued that even if Scott was deemed "free" under the laws of a state, he would still not qualify as an American citizen because he was black. The Court asserted that, in general, U.S. citizens are only those who were members of the "political community" at the time of the Constitution's creation, along with those individuals' heirs, and slaves were not part of this

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community. Finally, the Court argued that, in any case, Scott could not be defined as free by virtue of his residency in the Wisconsin Territory, because Congress lacked the power to ban slavery in U.S. territories. The Court viewed slaves as "property," and the Fifth Amendment forbids Congress from taking property away from individuals without just compensation. Justice Benjamin Curtis issued a strong dissent.

The decision in Dred Scott v. Sandford exacerbated rising sectional tensions between the North and South. Although the Missouri Compromise had already been repealed prior to the case, the decision nonetheless appeared to validate the Southern version of national power, and to embolden pro-slavery Southerners to expand slavery to all reaches of the nation. Unsurprisingly, antislavery forces were outraged by the decision, empowering the newly formed Republican Party and helping fuel violence between slave owners and abolitionists on the frontier. Following the Civil War, the Reconstruction Congress passed, and the states ratified, the Thirteenth, Fourteenth, and Fifteenth Amendments, all of which directly overturned the Dred Scott decision. Today, all people born or naturalized in the United States are American citizens who may bring suit in federal court.

Freedom of Movement and Right to Travel

“Everyone has 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.”

In Myanmar, thousands of citizens were detained, including 700 prisoners of conscience, most notably

Nobel Laureate Daw Aung San Suu Kyi. In retaliation for her political activities, she has been

imprisoned or under house arrest for twelve of the last eighteen years, and has refused government

offers of release that would require her to leave the country.

In Algeria, refugees and asylum-seekers were frequent victims of detention, expulsion or ill treatment.

Twenty-eight individuals from sub-Saharan African countries with official refugee status from the

United Nations High Commissioner for Refugees (UNHCR) were deported to Mali after being falsely

tried, without legal counsel or interpreters, on charges of entering Algeria illegally. They were dumped

near a desert town where a Malian armed group was active, without food, water or medical aid.

In Kenya, authorities violated international refugee law when they closed the border to thousands of

people fleeing armed conflict in Somalia. Asylum-seekers were illegally detained at the Kenyan border

without charge or trial and forcibly returned to Somalia.

In northern Uganda, 1.6 million citizens remained in displacement camps. In the Acholi subregion, the

area most affected by armed conflict, 63 percent of the 1.1 million people displaced in 2005 were still

living in camps in 2007, with only 7,000 returned permanently to their places of origin.

Marcos vs Manglapus

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Facts: Former President Ferdinand E. Marcos was deposed from the presidency via the non-

violent “people power” revolution and was forced into exile. Marcos, in his deathbed, has

signified his wish to return to the Philippines to die. But President Corazon Aquino, considering

the dire consequences to the nation of his return at a time when the stability of government is

threatened from various directions and the economy is just beginning to rise and move

forward, has stood firmly on the decision to bar the return of Marcos and his family.

Marcos filed for a petition of mandamus and prohibition to order the respondents to issue them

their travel documents and prevent the implementation of President Aquino’s decision to bar

Marcos from returning in the Philippines. Petitioner questions Aquino’s power to bar his return

in the country. He also questioned the claim of the President that the decision was made in the

interest of national security, public safety and health. Petitioner also claimed that the President

acted outside her jurisdiction.

According to the Marcoses, such act deprives them of their right to life, liberty, property

without due process and equal protection of the laws. They also said that it deprives them of

their right to travel which according to Section 6, Article 3 of the constitution, may only be

impaired by a court order.

Issue: Whether or not the President acted arbitrarily or with grave abuse of discretion

amounting to lack or excess of jurisdiction when she determined that the return of the

Marcoses to the Philippines poses a serious threat to national interest and welfare and decided

to bar their return. Whether this is a violation of the humanitarian rights of the Marcoses to

travel.

Held: The rights Marcoses are invoking are not absolute. They’re flexible depending on the

circumstances. The request of the Marcoses to be allowed to return to the Philippines cannot

be considered in the light solely of the constitutional provisions guaranteeing liberty of abode

and the right to travel, subject to certain exceptions, or of case law which clearly never

contemplated situations even remotely similar to the present one. It must be treated as a

matter that is appropriately addressed to those residual unstated powers of the President

which are implicit in and correlative to the paramount duty residing in that office to safeguard

and protect general welfare. In that context, such request or demand should submit to the

exercise of a broader discretion on the part of the President to determine whether it must be

granted or denied.

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Freedom to Practice or Manifest religious Belief

ART. 18 of the Universal Declaration of Human Rights states that:

“Everyone has the right to freedom of thought, conscience and religion: this

rights includes freedom to chance his religion or belief, and freedom, either alone or

in community with others and in public or private, to manifests his religion or belief

in teaching, practice, worship and observance”

ART. 18 of the International Covenant on Civil and Political Rights states that:

“Everyone has the right to freedom of thought, conscience and religion; this

rights includes freedom to have or to adopt a religion or belief, or his choice and

freedom, either individually or in community with others or in public or private, to

manifest his religion or belief in worship, observance, practice or teaching.

ART. III SEC. 5 of the Philippine Constitution states that:

“No law shall be made respecting an establishment of religion, or prohibiting

the free exercise thereof. The free exercise and enjoyment of religious profession

and worship, without discrimination and or preference, shall forever be allowed. No

religious test shall be required for the exercise of civil and political rights”.

ART. XIV, SEC. 3(3) of the Philippine Constitution states that

“To promote the freedom of religion, at the option expressed in writing by

the parents, religion shall be allowed to be taught to their children in all public

elementary and high schools within the regular class hours”

Religious Freedom is a fundamental rights, entitled to the highest priority and amplest

Protection among human rights, for it involves the relationship of man to his creator.

One of the preferred freedoms in human society is the freedom of religion or belief and its free

exercise. Freedom of thought, which includes freedom of religious beliefs, is basic in the society of free

men. No one is to be forced to act in a manner contrary to his own beliefs and no discrimination of

whatsoever is allowed for religious reasons. On November 25, 1981 the Declaration on the Elimination

of All Forms of Tolerance and of Discrimination Based on religion and Beliefs, was adopted by the UN

General Assembly to provide that anyone should have the freedom of thought, conscience and religion

that no one should be subjected to coercion, which will impair his/her freedom to have a religion or

Belief of his/her own choice. Parents also have the right to organize family life in accordance with their

religion as well as every child shall enjoy the right to have access to religious education. No child

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should also be compelled to or receive religious teachings if it will be against the wishes of his/her

parents. The said declaration also includes the right to worship, to maintain charitable or humanitarian

institution, to acquire materials related to religious rights, to issue publication, to teach, and to solicit

financial contributions, to train leaders, to observe holidays and to observe holidays and to

communicate with others regarding religion.

The most significant documents approved by the Second Vatican Council of Rome is the

Declaration on the Right of The Person and Communities to Social and Civil Freedom in Matters

Religious (Digdidatis Humanae). Only 1 of the 17 documents address to all people of the world.

No Religious Test

Art. III Sec. 5 which states that

“No religious test shall be required for the exercise of civil or political rights.” There

should be no law providing for a religious preference as a qualification for holding selective or

appointive office in the Government.”

Religious Freedom in Marriage

The marriage law of the Philippines imposes no impediment to marriage on the account of

race, color, and religion.

Religious Discrimination in Education

Parents may in the discharge of their duty, under state compulsory Education Laws, send their

children to religious rather than Public schools.

Engel vs. Vitale

370 US 421, 25 June 1962

Facts: The Board of Education of Union Free School District 9, New Hyde Park, New York,

acting in its official capacity under state law, directed the School District's principal to

cause the following prayer to be said aloud by each class in the presence of a teacher at

the beginning of each school day: "Almighty God, we acknowledge our dependence upon

Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." This

daily procedure was adopted on the recommendation of the State Board of Regents, a

governmental agency created by the State Constitution to which the New York Legislature

has granted broad supervisory, executive, and legislative powers over the State's public

school system. These state officials composed the prayer which they recommended and

published as a part of their "Statement on Moral and Spiritual Training in the Schools,"

saying: "We believe that this Statement will be subscribed to by all men and women of

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good will, and we call upon all of them to aid in giving life to our program." Shortly after

the practice of reciting the Regents' prayer was adopted by the School District, the

parents of 10 pupils brought the action in a New York State Court insisting that use of this

official prayer in the public schools was contrary to the beliefs, religions, or religious

practices of both themselves and their children. Among other things, these parents

challenged the constitutionality of both the state law authorizing the School District to

direct the use of prayer in public schools and the School District's regulation ordering the

recitation of this particular prayer on the ground that these actions of official

governmental agencies violate that part of the First Amendment of the Federal

Constitution which commands that "Congress shall make no law respecting an

establishment of religion" - a command which was "made applicable to the State of New

York by the

Fourteenth Amendment of the said Constitution." The New York Court of Appeals, over the

dissents of Judges Dye and Fuld, sustained an order of the lower state courts which had

upheld the power of New York to use the Regents' prayer as a part of the daily procedures

of its public schools so long as the schools did not compel any pupil to join in the prayer

over his or his parents' objection.

Issue: Whether the New York law adopting the practice of reciting the Regent’s prayer in

public schools violate the Non-Establishment Clause.

Held: By using its public school system to encourage recitation of the Regents' prayer,

the State of New York has adopted a practice wholly inconsistent with the Establishment

Clause. There can, of course, be no doubt that New York's program of daily classroom

invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. It

is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The

nature of such a prayer has always been religious. There can be no doubt that New York's

state prayer program officially establishes the religious beliefs embodied in the Regents'

prayer. The argument to the contrary, which is largely based upon the contention that the

Regents' prayer is "non-denominational" and the fact that the program does not require

all pupils to recite the prayer but permits those who wish to do so to remain silent or be

excused from the room, ignores the essential nature of the program's constitutional

defects. Neither the fact that the prayer may be denominationally neutral nor the fact

that its observance on the part of the students is voluntary can serve to free it from the

limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the

First Amendment, both of which are operative against the States by virtue of the

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Fourteenth Amendment. The New York laws officially prescribing the Regents' prayer are

inconsistent both with the purposes of the Establishment Clause and with the

Establishment Clause itself.

Aglipay v. Ruiz

GR 45459, 13 March 1937

Facts: In May 1936, the Director of Posts announced in the dailies of Manila that he

would order the issuance of postage stamps commemorating the celebration in the

City of Manila of the 33rd International Eucharistic Congress, organized by the Roman

Catholic Church. Monsignor Gregorio Aglipay, Supreme Head of the Philippine

Independent Church, in the fulfillment of what he considers to be a civic duty,

requested Vicente Sotto, Esq., member of the Philippine Bar, to denounce the matter

to the President of the Philippines. In spite of the protest of Sotto, the Director of Posts

publicly announced that the designs of the postage for printing have been sent to the

United States. The said stamps were actually issued and sold though the greater part

thereof remained unsold. The further sale of the stamps was sought to be prevented

by Aglipay.

Issue: Whether the stamp (containing a map of the Philippines, the location of the City

of Manila, and an inscription that reads "Seat XXXIII International Eucharistic Congress,

Feb. 3-7, 1937") violate the Non- establishment clause by allegedly promoting the

Catholic religion.

Held: Section 13, Article VI, of the 1935 Constitution provides that “no public money or

property shall ever be appropriated, applied, or used, directly or indirectly, for the use,

benefit, or support of any sect, church, denomination, sectarian institution, or system

of religion, or for the use, benefit, or support of any priest, preacher, minister, or other

religious teacher or dignitary as such, except when such priest, preacher, minister, or

dignitary is assigned to the armed forces or to any penal institution, orphanage, or

leprosarium." The prohibition is a direct corollary of the principle of separation of

church and state. Act 4052 contemplates no religious purpose in view. What it gives

the Director of Posts is the discretionary power to determine when the issuance of

special postage stamps would be "advantageous to the Government." Of course, the

phrase "advantageous to the Government" does not authorize the violation of the

Constitution; i.e. to appropriate, use or apply of public money or property for the use,

benefit or support of a particular sect or church. Herein, the issuance of the postage

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stamps was not inspired by any sectarian feeling to favor a particular church or

religious denominations. The stamps were not issued and sold for the benefit of the

Roman Catholic Church, nor were money derived from the sale of the stamps given to

that church. The purpose of the issuing of the stamps was to take advantage of an

event considered of international importance to give publicity to the Philippines and its

people and attract more tourists to the country. Thus, instead of showing a Catholic

chalice, the stamp contained a map of the Philippines, the location of the City of

Manila, and an inscription that reads "Seat XXXIII International Eucharistic Congress,

Feb. 3-7, 1937." Thus, while the issuance and sale of the stamps may be said to be

inseparably linked with an event of a religious character, the resulting propaganda

received by the Roman Catholic Church, was not the aim and purpose of the

Government. The Government should not be embarrassed in its activities simply

because of incidental results, more or less religious in character, if the purpose had in

view is one which could legitimately be undertaken by appropriate legislation. The

main purpose should not be frustrated by its subordination to mere incidental results

not contemplated.

Right to take Part in Government

“Political Rights” are the rights to participate directly or indirectly in the establishment or

administration of government. These are rights to enable people to participate in the affairs of the

government either directly or indirectly.

Right to Suffrage

ART. V SEC I of the Philippine Constitution states that:

“Suffrage may be exercised by all citizen of the Philippines not otherwise disqualified

by law, or who are at least eighteen years of age, and who shall have resided in the Philippines

for at least one year and in the place wherein they propose to vote for at least six months

immediately preceding the election. No literacy, property, or other substantive requirement

shall be imposed on the exercise of suffrage.”

These rights include the right to vote and be voted upon in periodic elections in order that the will of

the people shall be determined, as the basis of the government through genuine elections.

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Ebralinag vs. Division Superintendent of Schools of CebuGR 95770, 1 March 1993

Amolo vs. Division Superintendent of Schools of CebuGR 85887

Facts: 43 students of the Daanbantayan National High School, Agujo Elementary

School, Calape Barangay National High School, Pinamungajan Provincial High School,

Tabuelan Central School, Canasojan Elementary School, Liboron Elementary School,

Tagaytay Primary School, San Juan Primary School and Northern Central Elementary

School of San Fernando, Cebu, were expelled (23 October 1990) upon order of then

Acting Division Superintendent Marcelo Bacalso. Said students in the towns of Daan

Bantayan, Pinamungajan, Carcar, and Taburan, Cebu province (GR 95770, Ebralinag

vs. Division Superintendent) were expelled for refusing to salute the flag, sing the

national anthem and recite the patriotic pledge as required by Republic Act 1265 (11

July 1955), and by Department Order 8 dated 21 July 1955 of the Department of

Education, Culture and Sports (DECS) making the flag ceremony compulsory in all

educational institutions. This prompted some Jehovah's Witnesses in Cebu to appeal

to the Secretary of Education Isidro Cariño but the latter did not answer their letter.

25 students who were similarly expelled (high school and grade school students

enrolled in public schools in Asturias, Cebu [GR 95887, Amolo vs. Director

Superintendent]) because Dr. Pablo Antopina, who succeeded Susana Cabahug as

Division Superintendent of Schools, would not recall the expulsion orders of his

predecessor. Instead, he verbally caused the expulsion of some more children of

Jehovah's Witnesses. On 31 October 1990, the students and their parents filed the

Special civil actions for Mandamus, Certiorari and Prohibition alleging that the Division

Superintendent of Schools of Cebu, et.al. acted without or in excess of their

jurisdiction and with grave abuse of discretion in ordering their expulsion without prior

notice and hearing, hence, in violation of their right to due process, their right to free

public education, and their right to freedom of speech, religion and worship. Jehovah's

Witnesses admittedly teach their children not to salute the flag, sing the national

anthem, and recite the patriotic pledge for they believe that those are "acts of

worship" or "religious devotion" which they "cannot conscientiously give to anyone or

anything except God." They feel bound by the Bible's command to "guard ourselves

from idols — 1 John 5:21." They consider the flag as an image or idol representing the

State. They think the action of the local authorities in compelling the flag salute and

pledge transcends constitutional limitations on the State's power and invades the

sphere of the intellect and spirit which the Constitution protects against official

control. They stress, however, that while they do not take part in the compulsory flag

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ceremony, they do not engage in "external acts" or behavior that would offend their

countrymen who believe in expressing their love of country through the observance of

the flag ceremony. They quietly stand at attention during the flag ceremony to show

their respect for the right of those who choose to participate in the solemn

proceedings. Since they do not engage in disruptive behavior, there is no warrant for

their expulsion. On 27 November 1990, the Court issued a temporary restraining

order and a writ of preliminary mandatory injunction commanding the Division

Superintendent to immediately readmit the students to their respective classes until

further orders from the Court. The Court also ordered the Secretary of Education and

Cebu District Supervisor Manuel F. Biongcog to be impleaded as respondents in the

cases.

Issue: Whether the students, who belong to the Jehovah’s Witness sect, should be

expelled (following the holding in the case of Gerona) for not saluting the flag in

accordance with RA 1265.

Held: Religious freedom is a fundamental right which is entitled to the highest priority

and the amplest protection among human rights, for it involves the relationship of

man to his Creator. The right to religious profession and worship has a two-fold

aspect, vis., freedom to believe and freedom to act on one's belief. The first is

absolute as long as the belief is confined within the realm of thought. The second is

subject to regulation where the belief is translated into external acts that affect the

public welfare. The sole justification for a prior restraint or limitation on the exercise

of religious freedom is the existence of a grave and present danger of a character

both grave and imminent, of a serious evil to public safety, public morals, public

health or any other legitimate public interest, that the State has a right (and duty) to

prevent. Absent such a threat to public safety, the expulsion of the students from the

schools is not justified. By exempting the Jehovah's Witnesses from saluting the flag,

singing the national anthem and reciting the patriotic pledge, this religious which

admittedly comprises a "small portion of the school population" will not shake up our

part of the globe and suddenly produce a nation "untaught and un inculcated in and

unimbued with reverence for the flag, patriotism, love of country and admiration for

national heroes." After all, what the students seek only is exemption from the flag

ceremony, not exclusion from the public schools where they may study the

Constitution, the democratic way of life and form of government, and learn not only

the arts, science, Philippine history and culture but also receive training for a vocation

or profession and be taught the virtues of "patriotism, respect for human rights,

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appreciation for national heroes, the rights and duties of citizenship, and moral and

spiritual values as part of the curricula. Expelling or banning the students from

Philippine schools will bring about the very situation that this Court had feared in

Gerona. Forcing a small religious group, through the iron hand of the law, to

participate in a ceremony that violates their religious beliefs, will hardly be conducive

to love of country or respect for duly constituted authorities. Moreover, the expulsion

of members of Jehovah's Witnesses from the schools where they are enrolled will

violate their right as Philippine citizens, under the 1987 Constitution, to receive free

education, for it is the duty of the State to "protect and promote the right of all

citizens to quality education and to make such education accessible to all." While it is

certain that not every conscience can be accommodated by all the laws of the land;

when general laws conflict with scruples of conscience, exemptions ought to be

granted unless some "compelling state interests" intervenes. Exemptions may be

accorded to the Jehovah's Witnesses with regard to the observance of the flag

ceremony out of respect for their religious beliefs, however "bizarre" those beliefs

may seem to others. Nevertheless, their right not to participate in the flag ceremony

does not give them a right to disrupt such patriotic exercises. While the highest

regard must be afforded their right to the exercise of their religion, "this should not be

taken to mean that school authorities are powerless to discipline them" if they should

commit breaches of the peace by actions that offend the sensibilities, both religious

and patriotic, of other persons. If they quietly stand at attention during the flag

ceremony while their classmates and teachers salute the flag, sing the national

anthem and recite the patriotic pledge, such conduct cannot possibly disturb the

peace, or pose "a grave and present danger of a serious evil to public safety, public

morals, public health or any other legitimate public interest that the State has a right

(and duty) to prevent." Thus, although the Court upholds the students' right under our

Constitution to refuse to salute the Philippine flag on account of their religious beliefs,

it hopes, nevertheless, that another foreign invasion of our country will not be

necessary in order for our countrymen to appreciate and cherish the Philippine flag.

Right to Education

Education is a fundamental human right and essential for the exercise of all other human

rights. It promotes individual freedom and empowerment and yields important development benefits.

This is recognized in the International Covenant on Economic, Social and Cultural Rights as a human

right that includes the right to free, compulsory primary education for all, an obligation to develop

secondary education accessible to all, in particular by the progressive introduction of free secondary

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education, as well as an obligation to develop equitable access to higher education, ideally by the

progressive introduction of free higher education.

The right to education also includes a responsibility to provide basic education for individuals

who have not completed primary education. In addition to these access to education provisions, the

right to education encompasses the obligation to rule out discrimination at all levels of the educational

system, to set minimum standards and to improve the quality of education.

Article 26 of the Universal Declaration of Human Rights states that everyone has the right to

education directed to the full deployment of human personality and parents have the prior right to

choose the type of education of their children.

Article 13 of the International Covenant on Economic, Social and Cultural Rights recognizes the

right of everyone to free education (free for the primary level and "the progressive introduction of free

education" for the secondary and higher levels). This is to be directed towards "the full development of

the human personality and the sense of its dignity",and enable all persons to participate effectively in

society.

Article 13.2 lists a number of specific steps parties are required to pursue to realise the right of

education. These include the provision of free, universal and compulsory primary education, "generally

available and accessible" secondary education in various forms (including technical and vocational

training), and equally accessible higher education. All of these must be available to all without

discrimination. Parties must also develop a school system (though it may be public, private, or mixed),

encourage or provide scholarships for disadvantaged groups. Parties are required to make education

free at all levels, either immediately or progressively; "[p]rimary education shall be compulsory and

available free to all"; secondary education "shall be made generally available and accessible to all by

every appropriate means, and in particular by the progressive introduction of free education"; and

"higher education shall be made equally accessible to all, on the basis of capacity, by every

appropriate means, and in particular by the progressive introduction of free education".

The Committee on Economic, Social and Cultural Rights interpret the Covenant as also

requiring states to respect the academic freedom of staff and students, as this is vital for the

educational process. It also considers corporal punishment in schools to be inconsistent with the

Covenant's underlying principle of the dignity of the individual.

Right to Work

Basis and fundamental on securing the economic well-being of a person is his right to work

with fair wages and under decent working conditions. The ICESCR obliges States Parties to recognize

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the right to work which includes the right of everyone to the opportunity to gain his living by work

which he freely chooses or accepts, and to take appropriate steps to safeguard this right.

Article 6 of the ICESCR states that right to work necessarily includes the right to a decent living

wage, decent working conditions and the freedom of choice of work, freedom from discrimination and

the right to form trade unions. It includes the right to fair wages and adequate leisure time.

International Labor Organization (ILO) has pledges to support and implement the International

Covenant on Economic, Social and Cultural Rights. The ILO had developed international standards of

labor to be complied with by the State Parties.

Bernardo et al v. NLRC & FEBTCGR No. 122917, 12 July 1999

Facts: The dismissed complainants, numbering 43, are deaf-mutes who were hired on various periods from 1988 to 1993 by respondent Far East Bank and Trust Co. as Money Sorters and Counters through a uniformly worded agreement called "Employment Contract for Handicapped Workers". Disclaiming that complainants were regular employees, respondent Far East Bank and Trust Company maintained that complainants were hired temporarily under a special employment arrangement which was a result of overtures made by some civic and political personalities to the respondent Bank; that complainant[s] were hired due to "pakiusap"; that the tellers themselves already did the sorting and counting chore as a regular feature and integral part of their duties; that through the "pakiusap" of Arturo Borjal, the tellers were relieved of this task of counting and sorting bills in favor of deaf-mutes without creating new positions as there is no position either in the respondent or in any other bank in the Philippines which deals with purely counting and sorting of bills in banking operations. The LA &, on appeal, the NLRC ruled against petitioners, holding that they could not be deemed regular employees since they were hired as an accommodation to the recommendation of civic oriented personalities whose employments were covered by Employment Contracts w/ special provisions on duration of contract as specified under Art. 80. Hence, the terms of the contract shall be the law between the parties.

Issue: Whether petitioners have become regular employees.

Held: Only the employees who worked for more than six months and whose contracts were renewed are deemed regular. Hence, their dismissal from employment was illegal. The facts, viewed in light of the Labor Code and the Magna Carta for Disabled Persons, indubitably show that the petitioners, except sixteen of them, should be deemed regular employees.

The uniform employment contracts of the petitioners stipulated that they shall be trained for a period of one month, after which the employer shall determine whether or not they should be allowed to finish the 6-month term of the contract. Furthermore, the employer may terminate the contract at any time for a just and reasonable cause. Unless renewed in writing by the employer, the contract shall automatically expire at the end of the term.

The stipulations in the employment contracts indubitably conform with Art. 80 LC w/c provides for the requisites in the employment agreement between an employer who employs handicapped workers. Succeeding events and the enactment of RA No. 7277

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(the Magna Carta for Disabled Persons), 13 however, justify the application of Article 280 of the Labor Code.

Respondent bank entered into the aforesaid contract with a total of 56 handicapped workers and renewed the contracts of 37 of them. Verily, the renewal of the contracts of the handicapped workers and the hiring of others lead to the conclusion that their tasks were beneficial and necessary to the bank. More important, these facts show that they were qualified to perform the responsibilities of their positions. In other words, their disability did not render them unqualified or unfit for the tasks assigned to them.

In this light, the Magna Carta for Disabled Persons mandates that a qualified disabled employee should be given the same terms and conditions of employment as a qualified able-bodied person.

The fact that the employees were qualified disabled persons necessarily removes the employment contracts from the ambit of Article 80. Since the Magna Carta accords them the rights of qualified able-bodied persons, they are thus covered by Article 280 of the Labor Code.

Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of respondent bank. With the exception of sixteen of them, petitioners performed these tasks for more than six months. Thus, the twenty-seven petitioners should be deemed regular employees.

The contract signed by petitioners is akin to a probationary employment, during which the bank determined the employees' fitness for the job. When the bank renewed the contract after the lapse of the six-month probationary period, the employees thereby became regular employees. 16 No employer is allowed to determine indefinitely the fitness of its employees.

Moreover, it must be emphasized that a contract of employment is impressed with public interest. Provisions of applicable statutes are deemed written into the contract, and the "parties are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other." Clearly, the agreement of the parties regarding the period of employment cannot prevail over the provisions of the Magna Carta for Disabled Persons, which mandate that petitioners must be treated as qualified able-bodied employees.

An employee is regular because of the nature of work and the length of service, not because of the mode or even the reason for hiring them.

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REFERENCES:

Human Rights by Jorge R. Coquia, 2012 Edition

Petralba, P.J., Hornbook on international and Philippine Human Rights Laws, 2013

Human Right Law / Human rights Culture by Rene V. Sarmiento

International Covenant on Economic, Social and Cultural Rights

Covenant on Economic, Social and Cultural Rights General Comments

The Universal Declaration of Human Rights, Human Rights Law, http://www.un.org/en/documents/udhr/hr_law.shtml

FAQ: THE COVENANT ON CIVIL & POLITICAL RIGHTS (ICCPR), https://www.aclu.org/faq-covenant-civil-political-rights-iccpr

INTERNATIONAL COVENANT ON ECONOMIC,SOCIAL AND CULTURAL RIGHTS, https://en.wikipedia.org/wiki/International_Covenant_on_Economic,_Social_and_Cultural_Rights

INTERNATIONAL CRIMINAL COURT, https://en.wikipedia.org/wiki/International_Criminal_Court

INTERNATIONAL HUMANITARIAN LAW, https://en.wikipedia.org/wiki/International_humanitarian_law

(United States Constitution, Bill of Rights, Declaration of Independence: United for Human Rights), http://www.humanrights.com/what-are-human-rights/brief-history/declaration-of-independence.html

Dr. Md. Sirajul Islam (HUMAN DIGNITY AND HUMAN RIGHTS), http://www.crvp.org/conf/istanbul/abstracts/sirajul%20islam.htm

Woman wins right-to-die case (Mail Online), http://www.dailymail.co.uk/news/article-106333/Woman-wins-right-die-case.html

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