Public International Law: Chapter XII - International Human Rights


From Alien Rights to Human Rights
  • Early concern about human rights was about specific classes of peoples;
    • slaves
    • minorities and 
    • certain nationalities. 
  • It was not until the birth of the United Nations that human rights of all people became the subject of legislation. 
  • Thus, the developing doctrine on the subject is antedated by the:
    • doctrines on humanitarian intervention
    • state responsibility for injury to aliens
    • protection of minorities
    • League of Nation’s Mandates and Minorities Systems, and 
    • international humanitarian law (which is the human rights law in time of war)
  • Human rights, in general terms, are those inalienable and fundamental rights which are essential for life as human beings. 
    • But there is no agreement as to what these rights are. 
    • In fact, there are those who are of the view that the very widespread offences against human integrity and dignity are evidence that argue against the existence of human rights principles in international law. 
    • This is a profoundly negative view that must be rejected as a justification for barbarity.
  • There is a connection between human rights on the one hand and ethics and morality on the other. 
    • A distinction can perhaps be made between what are considered human rights precepts and the differing justification for the existence of such precepts. 
    • As Jacques Maritain wrote in 1949, “I am quite certain that my way of justifying belief in the rights of man and the ideal of liberty, equality, fraternity is the only way with a firm foundation in truth. This does not prevent me from being in agreement on these practical convictions with people who are certain that their way of justifying them, entirely different from mine or opposed to mine,... is equally the only way founded upon truth.”
  • Asian thinkers claim that much of what are called human rights are Western concepts alien to Asian culture. 
    • Nevertheless the common denominator between Asian and Western view so far is the belief that the individual must be protected and that the international community must contribute to the protection, even if between the two views there might be differing emphases: emphasis on the individual in the western (read American) outlook and emphasis on the community in what is called “Confucian.”
  • In general, the Western tradition has developed from the Natural Law view that certain rights exist as a result of a law higher than positive or man-made law. 
    • And this higher law itself flows from the nature of man which demands certain immunities or liberties. 
    • This view flourished in the seventeenth century and provided a recourse against arbitrary power. 
    • Much of what the Natural Law view held has already become part of customary or conventional law and has served as a counterforce against a positivist emphasis on the importance of the state.
  • Literature now speaks of three generations of human rights. 
    1. First Generation Human Rights
      • traditional civil and fundamental rights; 
    2. Second Generation Human Rights
      • social and economic rights; 
    3. Third Generation Human Rights
      • right to peace
      • right to clean environment
      • right to self-determination
      • right to common heritage of mankind
      • right to development
      • minority rights. 
  • However, there is dispute about the cultural in human rights.

An Emerging International Bill of Human Rights
  • The immediate impetus for this development was the atrocities committed by the regime under Adolf Hitler.
    • What distinguishes post-World War II developments from earlier human rights tradition is the growing acceptance of the view that the way nations treat people under their jurisdiction is no longer just a domestic concern but also one that calls for the attention of the international community. 
    • This view represents a chipping away at the old concept of sovereignty. 
    • It recognizes that individuals can be subjects of international law and that they can find protection and remedies within the international community against abuses by their own government.
  • The United Nations became the cradle for the development of the new international law on human rights. 
    • But the U.N. Charter’s own provisions on human rights were preliminary. 
    • They did not make human rights law but they represented a beginning which later would develop into international law.
    • The Charter’s Preamble set down a fundamental premise: “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women.” 
  • Its human rights goal was set down in Article 1(3):
    • To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.
  • The achievement of these purposes was something to be worked for. 
  • The obligations assumed by the Organization and its Members are listed in two key articles:
Article 55 
  • With a view to the creation of conditions of stability and well being which are necessary for peaceful and friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples, the United Nations shall promote:
    1. Higher standards of living, full employment, and conditions of economic and social progress and development;
    2. Solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and 
    3. Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. 
Article 56 
  • All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.
  • As is obvious, there are here no definitions of human rights, there is no clear commitment of Members to avoid violations, and there is set down no instrument for the correction or vindication of violations of human rights that might occur. 
  • In fact, the sensitivity of nations to their sovereignty is reflected in Article 2(7) of the U.N. Charter:
    • Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.
  • It is also clear, however, that the Charter itself recognized the inadequacy of the document; hence, through Article 62(2) it authorized the UN Social and Economic Council (ECOSOC) to “make recommendations for the purpose of promoting respect for, and the observance of, human rights and fundamental freedoms for all” and commanded it, through Article 68, largely through the intervention of American non-governmental organizations, to “set up commissions in economic and social fields and for the promotion of human rights.”
  • Vague as all these were, however, they not only marked the internationalization of human rights but they also set in motion the gradual process of legislating international human rights law. 
  • The first significant milestone in this process was the promulgation of the Universal Declaration of Human Rights.

Universal Declaration of Human Rights.
  • The Universal Declaration, after many intricate delays, was adopted and proclaimed by the General Assembly on December 10, 1948. 
  • It was, however, not seen as law but only as “a common standard” for nations to attempt to reach. 
  • Its authority was primarily moral and political.
  • It would take another eighteen years before the United Nations could convert the aspirations of the Declaration into conventional international law embodied in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Optional Protocol to the Covenant on Civil and Political Rights.
  • There is an important distinction between a mere declaration and a covenant:
    • international covenant
      • lies a meeting of minds of the contracting parties on the specific duties and obligations they intend to assume, and the agreement that the undertakings must be effectively performed
      • leaves no doubt about the legal nature of the provisions it contains
      • vinculum juris created by a covenant generally absent from a declaration, places a duty on the contracting parties to bring their laws and practices into accord with the accepted international obligations and not to introduce new laws or practices which would be at variance with such obligations.
    • declaration 
      •  admits the presumption that something less than full effectiveness in terms of law is intended. 
      • often deemed to enunciate moral rules only

The Covenant on Civil and Political Rights
Adopted December 16, 1966; entered into force March 23, 1976
  • The substantive rights that are treated in the Covenant on Civil and Political Rights are found in Articles 1, and 6 to 27.
Life, liberty and property, and equality.
  • The Covenant’s basic provision on the right to life in Article 6(1) and its provision on genocide Article 6(4) and the general guarantee of liberty in Article 9(1) do not go beyond what Article III, Section 1 of the Philippine Bill of Rights guarantees. 
    • Article 6(1) — right to life 
    • Article 6(4) — genocide 
    • Article 9(1) — general guarantee of liberty 
  • The Covenant, moreover, does not say when protected life begins, whereas the Philippines protects “the life of the unborn from conception.”
  • There is no provision on the right to property in the Covenant, this in spite of the fact that a provision exists in Article 17(1) in the Universal Declaration. Pechota explains the absence from the Covenant thus:
    • “While no one in the Commission questioned the right itself, there were considerable differences of opinion as to the restrictions to which it should be subject. At a time when property rights had lost much of their previous sanctity, it was inevitable that the Commission would find it difficult to draft a text that would command general acceptance.”
  • On the right to life, the Covenant’s Article 6(2) expresses a bias for the abolition of the death penalty and allows its imposition, in countries which still have a death penalty, only after conviction for the most serious crimes. 
    • But the Covenant does not stop there. In Article 6(6) it says: 
      • “Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.”
    • In fact, in the Second Optional Protocol to the Covenant, which was signed at the General Assembly meeting on December 15, 1989, but which has not yet come into force, Article 1 says: 
      • “(1) No one within the jurisdiction of a State Party to the present Protocol shall be executed. 
      • (2) Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.”
  • The Philippines is not yet party to the Second Protocol although it signed on September 20, 2006. 
    • The 1987 Constitution prohibited the imposition of the death penalty unless a new law is passed imposing death for “heinous crimes.”
    • Congress first restored the death penalty for heinous crimes but Republic Act No. 9346 has since disallowed it.
  • On the more detailed aspects of physical liberty, and arrests and detention found in Articles 8,9 and 11 of the Covenant, these are more than adequately covered by corresponding provisions of the Bill of Rights.
    • Article 8 — physical liberty
    • Article 9 — arrests 
    • Article 11 — detention
  • Similarly, the rights of an accused detailed in Articles 14 and 15 of the Covenant have long been parts of the Philippine accusatory system as found in the Constitution.
    • Article 14 — rights of the accused
    • Article 15 — rights of the accused
  • But the Covenant, in Article 14, is more restrictive in the matter of publicity of criminal proceedings “where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.” 
    • Such standards would not easily pass the Philippine tests for publicity and free press.
  • There are, however, two provisions on compensation in the Covenant which should be looked into. 
    • Article 9(5) says: “Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation,”
    • Article 14(6) says: that a person who has been a victim of miscarriage of justice “shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.” 
    • The only place where the Philippine Constitution asks for compensation is in Section 12(4) of the Bill of Rights where the legislature is asked to compensate violations of rights of a person under investigation.
  • The guarantee of equality is found in Article 26 of the Covenant. 
    • It is the Bill of Rights’ more terse “equal protection” clause in Article III, Section 1. 
      • The guarantee is of legal equality. 
      • It does not embody the aspiration towards lesser material inequality. 
      • The latter is material found in the Covenant on Economic, Social and Cultural Rights.
Torture, ill-treatment and prison conditions
  • The Covenant’s proscription of torture and other forms of ill- treatment that offend not only against bodily integrity but also against personal dignity and the requirement of humane prison conditions are found in Articles 7 and 10. 
    • Article 7 — proscription of torture and other forms of ill- treatment
    • Article 10 — requirement of humane prison conditions 
  • While adequate prison conditions are guaranteed by Section 19(2) of the Bill of Rights, the fact, however, is that prison conditions in the Philippines today are far from adequate. 
  • It should be noted that the UN Human Rights Commission has expressed the view that imprisonment “in conditions seriously detrimental to a prisoner’s health” constitutes violation of Articles 7 and 10(1) of the Covenant.
Freedom of Movement 
  • The Covenant in its Article 12(1) and (2) group together the rights to travel within the country, the right to leave the country and the right to change one’s residence. 
  • The limitations on these three rights are enumerated in Article 12(3): “those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights in the present Covenant.”
  • They are similar to the limitations found in the Philippine Bill of Rights except for the fact that, unlike the Philippine provision, it does not require a court order for impairment of liberty of abode.
  • Unlike the Philippine provision, which speaks only of the right to travel without distinction as to whether it is travel within the country or travel from or to the country, the Covenant in Article 12(4) separates the right to return to one’s country from the right to leave one’s country. 
    • The limit to the right to return to one’s country in the Covenant is implied in the word “arbitrarily:” “No one shall be arbitrarily deprived of the right to enter his own country.” 
    • The intention of the Covenant in separating this right would seem to be to make the limitation more narrow than for the right to leave the country especially since exile is now prohibited by customary law and the prohibition of exile may even be jus cogens. 
    • It is also noteworthy that the Inter-American Commission of Human Rights has expressed the opinion that domestic laws which prevent exiled individuals from returning to their country run counter to Article 12 of the Covenant.
  • The Philippine Supreme Court, however, in the case Marcos v. Manglapus, et al.,G.R. No. 88211, September 15,1989, on the return of Ferdinand Marcos after his involuntary exile, arrived at a different conclusion.
    • The Court argued that since the Declaration of Human Rights and the Covenant on Human Rights separate the right to leave the country from the right to return to one’s country, the two rights are distinct and the right to return to one’s country is not guaranteed by the specific guarantees for the right to travel and liberty of abode and that therefore President Marcos could not appeal to Section 6 of the Bill of Rights.
    • The vote, however, was a reluctant and embarrassed 8 to 7, and the decision was prefaced thus: “This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after causing twenty years of political, economic and social havoc in the country and who within the short space of three years seeks to return, is in a class by itself.”
    • “The right to return to one’s country, a totally distinct right under international law, independent from although related to the right to travel not among the rights specifically guaranteed in the Bill of Rights.”
  • Related to freedom of movement is the right of aliens not to be expelled without due process from a territory. This is guaranteed in Article 13 of the Covenant.
  • Summary:
    • Article 12(1) —  right to travel within the country
    • Article 12(1) — right to leave the country 
    • Article 12(3) — limitations:
      • provided by law
      • necessary to protect:
        • national security
        • public order
        • public health
        • morals
        • rights and freedoms of others
      • consistent with the other rights recognized in the present Covenant
    • Article 12(1) — right to enter his own country
    • Article 13 —  right of aliens not to be expelled without due process from a territory
Legal personality, privacy and the family
  • The right to be recognized as a person before the law is guaranteed in Article 16 of the Covenant. 
    • Article 16 — right to be recognized as a person before the law
  • One must distinguish, however, between having a “legal personality” and “having a capacity to act.”
    • having a legal personality
      • belongs to all, whether citizens or aliens
    • having a capacity to act
      •  may not be available to some by reason, for instance:
        • infancy
        • minority
        • insanity
  • The guarantee in its fullness means that state parties must “treat every human being everywhere, male or female, young or old, alien or citizen, as a person before the law, enjoying the protection of the law and of the forces of the law, with power to have rights and assume obligations: to own, acquire, and dispose of property; to make contracts; to sue and be sued; and to invoke other legal remedies.”
  • There is no similar specific guarantee in the Constitution; but that it is presumed to exist runs through the entire document.
  • But when does one become a person?
    • The Covenant does not say. 
    • The Philippine Constitution protects “the life of the unborn from conception;” but it does not say that the unborn is a person. 
    • The Civil Code, however, says that for purposes beneficial to him the unborn is considered a person.
  • Article 17 of the Covenant protects “privacy, family, home or correspondence” as well as honour and reputation.” 
    • Article 17 — protects privacy, family, home or correspondence as well as honour and reputation
  • Articles 23 and 24 of the Covenant contain detailed provisions on the rights of the family and of children. These either are covered by Article XV on the Family in the Constitution or are so fundamental that Philippine law takes them for granted.
    • Article 23 & 24 —  detailed provisions on the rights of the family and of children
Thought, conscience, religion, expression and political freedoms 
  • Article 18 of the Covenant guarantees “freedom of thought, conscience, and religion.” 
  • The limits on external exercise found in the Covenant — “to protect public safety, order, health, or morals or the fundamental rights of others” — if interpreted broadly can dilute the freedom and thus come into conflict with the very narrow limits allowed by the preferred position which free exercise occupies in the Bill of Rights. 
  • The Covenant contains explicit protection of the right of parents in the matter of religion for their children. 
    • Notably, however, an established religion is not incompatible with the Covenant. 
  • Article 19 of the Covenant guarantees freedom of expression and Article 21 protects the right of assembly and petition.  They do not go beyond our Constitution’s own guarantees on the same subject. 
  • However, the Covenant’s Article 20 which prohibits “propaganda for war” can come into conflict with our Constitution’s freedom of expression.
  • The guarantee of political freedom in the Covenant’s Article 25 is also written all over the Philippine Constitution.
    • Article 18 — freedom of thought, conscience, and religion
    • Article 19 — freedom of expression
    • Article 20 — prohibits “propaganda for war”
    • Article 21 — right of assembly and petition
    • Article 25 — political freedom
Associations and unions 
  • Article 22 of the Covenant has a detailed set of provisions protecting the right to form associations and unions. The Covenant is silent about the right of government employees to form unions; the Constitution is explicit in the assertion of the right. 
    • Article 22 — right to form associations and unions
Minorities 
  • Article 27 guarantees “ethnic, religious or linguistic minorities” the right “to enjoy their own culture, to profess and practice their own religion, or to use their own language.” 
    • Article 27 — right of minorities
  • This is one of the few rights which was already the subject of earlier treaties such as the Treaty of Versailles of 1919 and the Polish-German Upper Silesia Treaty of 1922.
  • It is a right which is very central to the current conflicts in Eastern Europe.
  • The concern for minorities has a two-fold aspect. 
    1. The fear of “a secessionist movement by minorities, threatening territorial integrity of the state, or about the danger of interference by other states with which the minorities are connected by ties of race, national origin, language, or religion.” 
    2. The second is a genuine “concern for the human rights of minorities” and the desire “that minorities will flourish so as to preserve that diversity of the human race, which, since the beginning of mankind, has provided a motive power for the development of civilization and culture by weaving many strands into a single multi-colored tapestry.”
Self-determination of peoples
  • Related to but broader than the right of minorities is the right of self-determination of peoples. 
  • This is treated in Article 1 of the Covenant. 
  • It has an interesting history and is of continuing relevance to dramatic developments that have happened within the past decade. 
    • The proposal made by the USSR on the subject was to recognize the right of self-determination of peoples under colonial domination. 
    • But others pushed for the inclusion of self-determination “for peoples oppressed by despotic governments, peoples under alien domination, and peoples of multi-national states deprived of self-determination by the central authorities.”
    • Article 1 now covers all of the above.
      • peoples under colonial domination
      • peoples oppressed by despotic governments
      • peoples under alien domination
      • peoples of multi-national states deprived of self-determination by the central authorities
  • Self-determination covers two important rights: 
    1. the right “freely to determine their political status and freely pursue their economic, social and cultural development” and 
    2. the right “for their own ends, [to] freely dispose of the natural wealth and resources without prejudice to any obligations arising out of international cooperation, based upon the principle of mutual benefit, and international law.”
  • Since the adoption of the Covenant, there have been at least two significant developments. 
    1. On December 14, 1960, the General Assembly adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples.
    2. On December 14,1962, it adopted the Resolution on Permanent Sovereignty over Natural Resources. 
  • But two questions remain: 
    1. Who are “peoples” within the meaning of the Covenant? 
    2. And, since self-determination is now a legal right, what does the legal right include?
  • Certainly “peoples” include those ruled by colonial powers; but under present circumstances this is now of limited significance. 
    • “Peoples” also mean those who form a component part of a multinational state.
  • On the other hand, minorities as such, for which the Covenant has Article 27, does not have a right of self-determination in the sense of the right to secede. 
    • Even the penultimate article of the 1960 Declaration on the Granting of Independence says: “Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with purposes and principles of the Charter of the United Nations.”
  • Self-determination has an internal and an external aspect.
    • Internal Aspect
      • The internal right of self determination consists of the elements enumerated in the first two paragraphs of Article 1:
        1. the right “freely to determine their political status and freely pursue their economic, social and cultural development” and 
        2. the right, “for their own ends, [to] freely dispose of the natural wealth and resources without prejudice to any obligations arising out of international cooperation, based upon the principle of mutual benefit, and international law.” 
      • These also necessarily include the other related political rights.
    • External Aspect
      • The external right of self-determination belongs to colonies and to those enumerated in the third paragraph: “non-self-governing and Trust Territories.”
Optional Protocol on the Covenant on Civil and Political Rights.
  • As a supplement to the Covenant on Civil and Political Rights, the United Nations adopted the Protocol to the Covenant on December 16, 1966. 
  • The Protocol entered into force on March 23, 1976. 
  • The Philippines has ratified the Protocol.
  • This separate treaty is designed to enable private parties who are victims of human rights violations. 
    • But complaints may be filed only against states which have ratified the Protocol.
    • An eighteen-member Human Rights Committee created by the Covenant receives and handles the complaints.
The Covenant on Economic, Social and Cultural Rights.
Adopted December 16, 1966; entered into force January 1976
  • The Covenant on Civil and Political Rights and the Covenant on Economic and Social and Cultural Rights were adopted on the same day. But why two separate documents?
  • The reasons for the division are both ideological and practical. 
    • Ideologically, the contest was between Western countries on the one hand and socialist and Third World countries on the other. 
      • The American delegation, for instance, argued that its government would find difficulty in accepting a treaty containing economic and cultural rights beyond those guaranteed by the Constitution. 
      • For the socialist and Third World countries, on the other hand, the absence of economic, social and cultural guarantees could render civil and political guarantees meaningless. 
    • On the practical level, however, it became obvious that implementing civil and political guarantees, the classical “Thou shalt nots” of the Western tradition, could be done immediately; whereas the implementation of economic, social and cultural rights could only be done gradually and dependently on development conditions. 
      • In the end, the decision to divide, which would at least assure approval of a document on civil and political rights, prevailed. 
  • But significantly, Article 1 of both Covenants say exactly the same thing about the right of self-determination of people. 
  • Moreover, there are substantial overlappings on other subjects of the Covenants.
    • The rights specific to the Covenant on Economic, Social and Cultural Rights are social welfare rights stated in detail. They include:
      • Article 6 — the right to work
      • Article 7 — the right to favorable conditions of work
      • Article 8 — the right to form free trade unions
      • Article 9 — the right to social security and insurance
      • Article 10 — the right to special assistance for families
      • Article 11 — the right to adequate standard of living
      • Article 12 — the right to the highest standard of physical and mental health
      • Article 13 & 14 — the right to education including compulsory primary education
      • Article 15 — the right to the enjoyment of cultural and scientific benefits and international contacts
    • These correspond to the economic, social and cultural rights that are also found in the Constitution principally:
      • Article XIII — Social Justice
      • Article XIV — Education, Science and Technology, Arts, Culture, and Sports)
      • Article XV — The Family
The Duty to Implement.
  • The Philippines is a party not only to the:
    • United Nations Charter 
    • Universal Declaration of Human Rights
    • International Covenant on Civil and Political Rights 
    • International Covenant on Economic and Social and Cultural Rights
    • Optional Protocol to the Covenant on Civil and Political Rights
  • The nation is therefore bound, both internally and in its foreign relations, “to bring [its] laws and practices into accord with the accepted international obligations and not to introduce new laws or practices which would be at variance with such obligations.” 
Article 2, International Covenant on Civil and Political Rights:
  1. Each State Party to this present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religious, political or other opinion, national or social origin, property, birth or other status.
  2. Where not already provided for by existing legislative or other measure, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect recognized in the present Covenant.
  3. Each State Party to the present Covenant undertakes:
    • To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by any person acting in an official capacity; 
    • To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
    • To ensure that the competent authorities shall enforce such remedies when granted.
  • As already noted, treaty commitments become part of domestic law. 
    • The self-executing provisions of the Covenants therefore must be implemented in domestic law. 
    • Those which are not self-executing must be attended to by “necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant.” This may be either by legislative or by executive measures.
  • The implementation of the provisions of the Covenant on Economic, Social and Cultural rights follows a pattern of its own.
Article 2, International Covenant on Economic, Social and Cultural Rights:
  1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
  • What governs therefore is the principle of “progressive realization” which means “that a state is obligated to undertake a program of activities . . . and to realize those rights which are ‘recognized’ by the Economic Covenant. While the obligation of progressive realization is limited by resource constraints, the Economic Covenant indicates that priority should be given to social welfare and that the level of effort should increase over time. These obligations apply to any state that has ratified the Economic Covenant, regardless of that state’s economic resources.”
  • Beyond the domestic obligations, however, and more relevantly for this essay, is the international obligation. In the economic and social fields, the key words are “cooperation” and “assistance.” “The effort to provide international protection for economic/social rights on the global level proceeds along many lines and involves actions of various kinds on behalf of these rights. The framework for this effort is the United Nations system, with its central organization, loosely coordinated network of specialized agencies, and growing body of covenants and conventions relevant to this area of human experience.”
    • In the civil and political field, this involves participation in the implementation measures of the United Nations system.
Other Conventions on Human Rights. 
  • There have been other conventions intended for the protection of human rights. Among these are the:
    1. 1948 Genocide Convention
    2. 1966 Convention on the Elimination of All Forms of Racial Discrimination
    3. 1979 Convention on the Elimination of All Forms of Discrimination Against Women
    4. 1984 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
    5. 1989 Convention on the Rights of the Child
    6. 1990 Convention on Migrants Workers
  • The different regional conventions on human rights have their own procedure for implementation.
Customary human rights law. 
  • It can also be said that some human rights principles have become customary law in the light of state practice. 
  • This would include the:
    • prohibition of torture, genocide, slavery
    • prohibition of discrimination

International Implementation of Human Rights Law.
  • Each country has the obligation to implement human rights law within its jurisdiction. 
    • It can be done, where proper, through municipal courts such as what happened in the Pena Irala case. 
    • There now exist also regional courts with jurisdiction over human rights violations. 
    • In addition to these, the United Nations itself has a system for implementation.
  • An important UN body is the Human Rights Commission, a subsidiary organ of ECOSOC. 
  • There are two different procedures used by the Commission for responding to violations of human rights. These are:
    1. confidential consideration under ECOSOC Resolution 1503 
    2. public debate procedure under ECOSOC Resolution 1235
The 1503 Procedure or confidential procedure 
  • Resolution 1503 authorizes the Sub-Commission on Prevention of Discrimination and Protection of Minorities to appoint a working group consisting of not more than five members to meet once a year in private meetings to consider all communications, including replies of the governments concerned, with a view to bringing to the attention of the Sub-Commission those communications which appear to reveal a pattern of gross and reliably attested violations of human rights. 
  •  The confidential findings of the Sub-Commission are brought to the attention of the Commission on Human rights.
  • The Commission on Human Rights in turn is expected to submit its report and recommendation to the Economic and Social Council. 
  • The procedure is kept confidential until such time as the Commission on Human Rights decides to make recommendation to the ECOSOC. 
    • Although the procedure is kept confidential, findings invariably find their way into media. 
    • Reports have touched such countries as Uruguay, Argentina, the Philippines and other countries.
The 1235 Procedure
  • This Commission on Human Rights was established in 1946 as a subsidiary organ of ECOSOC. 
    • For its first twenty years, it took the view that it had no authority to take any action with regard to reported violations of human rights. 
  • A significant change took place in 1967 through ECOSOC Resolution 1235, antedating Resolution 1503. 
  • The Resolution authorized the Commission and its Subsidiary Commission on Prevention of Discrimination and Protection of Minorities to:
    1. examine reports relevant to gross violations of human rights 
    2. examine whether the violations revealed a consistent pattern and thereafter make recommendations to ECOSOC. 
  • Originally, the function referred to situation in South Africa, but it soon included situations in Chile, Afghanistan, Cuba, El Salvador, Guatemala, Iran and Iraq. 
  • As the procedure now operates, it carries out two types of activities. 
    1. First, it holds annual public debates in which governments and NGOs are given the opportunity to identify publicly country specific situations which deserve attention. 
      • This is thus different from the confidential process under 1503. 
      • In fact, subjects taken up under 1503 can find their way to 1235. 
    2. Second, it engages in studies and investigations of particular situations through the use of various techniques the Commission might deem appropriate. 
  • What can result from these procedures? Various things can follow: 
    1. embarrassment of countries referred that might generate change in policy; 
    2. pressure on governments to take the issue on a bilateral or multilateral level; 
    3. statements of exhortation from the Commission or call from the Commission for all available information; 
    4. the Commission might appoint a Special Rapporteur to examine and submit a report on the issue; 
    5. the Commission might ask the Security Council to take up the issue with a view to promulgating sanctions. 
  • Aside from the procedures under Resolutions 1503 and 1235, there are other specialized agencies which attend to specific human rights problems.

The International Criminal Court.
  • A significant development in the protection of human rights is the International Criminal Court created by the 1998 Rome Statute (July 17, 1989). 
  • The treaty came into force in April 2002 July 1, 2002 when the 60th country needed to establish the International Criminal Court submitted its ratification. 
    • However, although nearly all the world’s democracy support the court, the United States continues to refuse ratification. 
    • Nor has the Philippine government ratified the Rome Treaty as of this writing.
    • Updated Notes:
      • The country initially signed the Rome Statute on December 11, 2000, but it took over a decade for the Senate to ratify it.
      • The Philippines ratified the Rome Statute on August 30, 2011. 
      • The ICC has jurisdiction over Rome Statute crimes committed since November 1, 2011. 
      • On March 17, 2018, the Government of the Philippines deposited a written notification of withdrawal from the Rome Statute. The withdrawal took effect on March 17, 2019. 
      • However, the Court retains jurisdiction over alleged crimes that occurred in the Philippines during the time period when it was a State Party to the Court – from November 1, 2011 through March 16, 2019.
      • In its December 14, 2020 report, the Office of the Prosecutor stated that it is satisfied that crimes against humanity were committed between at least July 1, 2016 and March 16, 2019, and therefore it has subject matter jurisdiction.
      • In June 2021, the Prosecutor requested publicly to open an investigation into crimes committed in the Philippines between November 1, 2011 – March 16, 2019, focusing on allegations of murder as a crime against humanity through the so-called “war on drugs” campaign throughout the Philippines in 2016-2019 and earlier in the Davao region (2011-2016).
  • What is the significance of the establishment of the International Criminal Court? 
    • Hitherto, international crimes were prosecuted in ad hoc criminal courts.
    • Such were the Nuremberg and the Tokyo tribunals after World War II, and more recently, the tribunals for Rwanda and the former Yugoslavia. 
      • These earlier tribunals were undermined and weakened by the charges of politically motivated investigations and selective justice. 
    • Unlike the temporary tribunals, the new court will has been established without any specific country in mind. 
      • Thus, besides enjoying permanency, it will begin with the virtue of neutrality so necessary for fairness. Gradually too, the court will be able to establish precedents. 
    • The goal of the court, moreover, is to demand individual and not collective accountability. 
      • It will therefore shift the stigma of guilt away from the collectivity and will thereby help facilitate reconciliation by avoiding condemnation of entire societies. 
      • For these and other reasons some have considered its establishment “the single most important international institutional advance since the founding of the United Nations more than a half century ago.” 
  • How will the court work? 
    • It will not function as an all purpose court. 
    • Its jurisdiction will be limited to the most serious international crimes: 
      • genocide
      • crimes against humanity
      • war crimes
      • crime of aggression
    • These crimes are carefully defined in the treaty. 
    • An important feature of the court is the principle of complementarity.
      • The court is meant to be a court of last resort.
      • It normally must await referral of a crime either by a state party or by the Security Council. 
      • The court is not allowed to act when the local judicial system is able and willing to prosecute. 
      • Once a state has taken the initiative to investigate a crime, even if it ultimately decides that there is no reason to proceed, the international court cannot intervene.
      •  The international court is not intended to supplant the functioning of military and civilian tribunals in national judicial systems. However, if a state intentionally tries to avoid its international obligation by shielding a criminal from responsibility, the court may come in. 
  • As can be seen, because of the principle of complementarity, the effective functioning of the court will depend very much on the cooperation of state parties. 
  • The domestic criminalization of the acts enumerated as serious crimes in the treaty will still have to be made by the state. 
    • In our jurisdiction, customary international law becomes domestic law by incorporation. 
    • Incorporation is achieved either through the constitutional provision which says that the general principles of international law are part of the law of the land or by treaty ratification. 
    • However, there is persuasive authority saying that treaties which criminalize certain acts are not self-executing.
Additional Notes:

Republic Act No. 9851
  • Republic Act No. 9851, otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity," is a landmark law enacted in 11 December 2009 that defines and penalizes serious crimes of concern to the international community, such as war crimes, genocide, and crimes against humanity. 
    • This law is a significant step towards upholding international humanitarian law and promoting human rights in the Philippines.

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