MIDTERM Human Rights Reviewer

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HUMAN RIGHTS DEFINITION

branch of public law that deals with the body of laws, rules, procedures, and institutions designed
to respect, promote and protect human rights and the national, regional and international levels
Human rights are the foundations of human existence and coexistence. Human rights are universal,
indivisible and interdependent. Human rights are what make us human. They are the principles by
which we create the sacred home for human dignity.
Generally defined as those rights, which are inherent in our nature, and without which, we cannot
live as human beings.
Supreme, inherent, and inalienable rights to life, dignity and self-development. It is the essence of
these rights that makes man human.
International Humanitarian Law (IHL) is a branch of international law limiting the use of violence in armed
conflicts by sparing those who do not or no longer directly participate in hostilities and limiting the
violence to weaken the military potential of the enemy. It is usually referred to as International
Humanitarian Law Applicable in Armed Conflicts which means international rules, established by treaties or
custom, which are specifically intended to solve humanitarian problems directly arising from international
or non-international armed conflicts and which, for humanitarian reasons, limit the right of Parties to a
conflict to use the methods and means of warfare of their choice or protect persons and property that are,
or maybe, affected by conflict.
International Human Rights Law (IHRL) is a system of laws, both domestic and international which is
intended to promote human rights. It is a set of international rules, established by treaty or custom, on the
basis of which individuals and groups can expect and/or claim certain behavior or benefits from
governments. Human rights are inherent entitlements which belong to every person as a consequence of
being human.
The Greek Philosophy
Greek [Athenian] poet and lawgiver Solon conceived the "rule by law not by men" and
ended aristocratic control over government and replaced it with the limited rule of perhaps
one thousand wealthier male citizens. Draco, another prominent legislator in Athens who
wrote his own code of laws, underscored the Greek commitment to developing law and
refining government to meet the needs of the times.
Greek philosopher Plato and Aristotle dwelt on the idea of philosopher-kings ruling the
society. Plato advanced the concept of the common good which contains an unusual
defense of equal rights for women and a universal moral standard for human conduct, in
waror [in] peace. On the other hand, Aristotle evaluated values such as virtue, justice, and
rights and showed that they are best preserved in a mixed government (not a pure
democracy, oligarchy, or tyranny) with an economically strong body of citizens.
Stoicism followed the philosophy of Plato and Aristotle. The Stoics believed in the existence
of a natural law, the jus naturale, born of the lex aeterna, the cosmos law of reason and
considered that all humans shared a spark of divinity and that the earth and cosmos
belonged to one indissoluble process. As such, humans must live consistent with the laws of
nature under the guiding principle of reason
The Roman Law
Roman law continued Greek Stoicism in the development of its concept of natural law which
inspired the notion of universal rights for all human beings. Two Roman emperors, Octavian
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and Justinian, prominently helped develop Roman law. Octavian was an adherent of
precedents which serves as the bulwark of efforts to institutionalize human rights in law.
Justinian who inspired the term justice set standards for judging the legitimacy of laws
and traditions, a vital precursor for effectively implementing human rights today
The Judeo-Christian Tradition
The contributions of Judeo-Christian to our modern conception of human rights are rooted
in the fundamental principle of Judaism and subsequently Christianity that humankind
was created in the image of God, and therefore every person has a divine link to the Creator.
The idea of the brotherhood of mankind gives us the notion that each person is deserving of
respect and dignity because each person is, at least in a small way, godlike. This reasoning
alone provides a complete defense for human rights.
The English Magna Carta, The Petition of Right, and the Bill of Rights
The Magna Carta of 1215 or sometimes called the Great Charter of Liberties is often
thought of as the corner-stone of liberty and the chief defense against arbitrary and unjust
rule in England. However, Magna Carta established for the first time a very significant
constitutional principle: that the power of the king could be limited by a written grant.
Regarded as the first English Constitution, the Magna Carta guaranteed personal liberties
and civil rights. It provided that no free man shall be seized or imprisoned, or stripped of his
rights or possessions, or outlawed or exiled, or deprived of his standing in any other way,
nor will he be proceeded with force against him, or send others to do so, except by the
lawful judgment of his equals or by the law of the land neither will he be sold, denied or
delayed his right or justice nor shall a man be placed on trial upon his own unsupported
statement, without producing credible witnesses to the truth of it.
The American Declaration of Independence, US Constitution and Bill of Rights (1787)
The American Declaration of Independence was the first piece of document that met a
modern definition of human rights.The Declaration further asserted that the people could
limit state power if their human rights were abridged and if government violated the
inalienable rights to life, liberty and the pursuit of happiness, then the people could rebel
against the duly constituted government.
French Declaration of the Rights of Man and the Citizen
The French Declaration of the Rights of Man and of the Citizen was born out of the womb of
Frenchs revolutionaries. Approved by the National Assembly of France on August 26, 1789,
and believing that the ignorance, neglect, or contempt of the rights of man are the sole
cause of public calamities and of the corruption of governments, the Declaration
recognized and proclaimed, in the presence and under the auspices of the Supreme Being,
the rights of man and of the citizen of the French Republic
The Covenant of the League of Nations and the United Nations Charter
The League of Nations came into being after the end of World War I under the Treaty of
Versailles. The League of Nation's task was simple - to ensure that war never broke out again
and to maintain world peace. But more than this task of the League of Nations is the
harnessing of claims of national self-determination by many countries during World War I.
These claims began to gain legitimacy as a human rights criterion.
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The Philippine Constitutions (molded by historical struggle of the Filipino people)


1. The Biac-na-Bato Constitution
2. The Malolos Constitution
3. The 1935 Constitution
4. The 1943 Constitution
5. The 1973 Constitution
6. The Freedom Constitution
7. The 1987 Constitution

International Humanitarian Law of International Armed Conflicts (IHLIAC) refers to a set of international
rules known as Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977
International Law is the law which regulates the intercourse of nations; the law of nations. The customary
law which determines the rights and regulates the intercourse of independent nations in peace and war. It
is the body of accepted rules which regulate the conduct of States and other international persons as they
interact in the world community. It may also be understood as the body of rules or principles of actions
which are binding upon civilized States in their relations with one another

BASIC CHARACTERISTIC OF HUMAN RIGHTS (IFIIIUI)


Inherent
- HR are not granted by any person or authority.
- Examples are right to life and right to dignity.
Fundamental
- Without them the life and the dignity of man will be meaningless.
- Right to individual liberty and security of a person or freedom of thought or religion.
Inalienable
- Cannot be taken away from a free individual
Imprescriptible
- Cannot be lost even by a long passage of time
- Freedom of thought, conscience, and religion
Indivisible
- Not capable of being divided.
- Cannot be denied even when other rights have already been enjoyed.
Universal
- All human beings irrespective of their origin, status or condition or place where they live
- Universal for which it can be enforced without national border
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Interdependent
- The fulfillment or exercise of one cannot be had without the realization of the other.
- Includes the realization of mans dignity
Protocol I is concerned with the Protection of Victims of International Armed Conflicts and this is referred to
as the International Humanitarian Law of International Armed Conflicts
Protocol II is related to the Protection of Victims of Non-International Armed Conflicts. Together with
Common Article 3 of the Four Geneva Conventions and Article 19 of the 1954 Hague Convention on Cultural
Property, these instruments are known as International Humanitarian Law of Non-International Armed
Conflicts
Protocol III is about the Adoption of an Additional Distinctive Emblem. This protocol is applicable to both
the International Humanitarian Law of International Armed Conflicts (IHL-IAC) and International Humanitarian
Law of Non-International Armed Conflicts

INTERNATIONAL BILL OF HUMAN RIGHTS


Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and its two (2)
Optional Protocols, and International Covenant on Economic, Social and Cultural Rights.
UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)
Universal Declaration of Human Rights has been declared as a common standard of
achievement for all peoples and all nations and that human rights should be protected by
the rule of law at all cost. In view of this, the peoples of the United Nations through the
Declaration have reaffirmed their faith in fundamental human rights, in the dignity and
worth of the human person and in the equal rights of men and women and have determined
to promote social progress and better standards of life in larger freedom. Thus, this
fundamental document sustained the declaration that all human beings are born free; equal
in dignity and rights; have the right to life, liberty and security of person; are entitled without
any discrimination to equal protection of the law; and to a fair and public hearing by an
independent and impartial tribunal.
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
The International Covenant on Civil and Political Rights are called the First Generation Rights
which derive primarily from the seventeenth- and eighteenth-century reformist theories
associated with the English, American, and French revolutions. It conceives of human rights
more in negative than positive terms. It favors the abstention rather than the intervention of
government in the quest for human dignity.
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
The International Covenant on Economic, Social and Cultural Rights are considered as the
Second Generation Rights. These rights trace their origin from the socialist doctrine which
advocates the equitable sharing of economic resources, services and welfare benefits to all
the people.
ALMA CONFERENCE DECLARATION OF 1978
- It expressed the need for urgent action by all governments, all health and development workers,
and the world community to protect and promote the health of all people. It was the first
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international declaration underlining the importance of primary health care. The primary health
care approach has since then been accepted by member countries of the World Health
Organization (WHO) as the key to achieving the goal of "Health For All" but only in developing
countries at first. This applied to all other countries five years later. This section defined primary
health care and urged signatories to incorporate the concept of primary health care in their health
systems. Primary health care has since been adopted by many member nations.
Health as fundamental human rights

GENERATION OF HUMAN RIGHTS


First Generation of Human Rights (Negative Rights)
(Articles 2-21 of the Universal Declaration of Human Rights)
It conceives of human rights more in negative than positive terms. It favors the abstention
rather than the intervention of government in the quest for human dignity. This include the
freedom from racial and equivalent forms of discrimination; the right to life, liberty, and the
security of the person; freedom from slavery or involuntary servitude, freedom from torture
and from cruel, inhuman, or degrading treatment or punishment; freedom from arbitrary
arrest, detention, or exile; the right to a fair and public trial; freedom from interference in
privacy and correspondence; freedom of movement and residence; the right to asylum from
persecution; freedom of thought, conscience and religion; freedom of opinion and
expression; freedom of assembly and association; and the right to participate in government
, directly or through free elections; and the right to own property.
Second Generation of Human Rights (Articles 22-27 of the Universal Declaration of Human Rights)
The right to social security; the right to work and to protection against unemployment; the
right to rest and leisure, including periodic holidays with pay; the right to a standard of living
adequate for the health and well-being of self and family; the right to education; and the
right to the protection of ones scientific, literary, and artistic production.
Third Generation of Human Rights (Article 28 of the Universal Declaration of Human Rights)
Proclaims that everyone is entitled to a social and international order in which the rights set
forth in this Declaration can be fully realized.
RIGHTS WHICH MAY NEVER BE LIMITED/SUSPENDED EVEN IN EMERGENCY SITUATIONS
Rights to life
Freedom from torture
Freedom from enslavement or servitude
Protection from imprisonment for debt
Freedom from retroactive penal laws
Right to recognition as a person before the law
Freedom of thought, conscience and religion
the privilege of the writ of habeas corpus shall not be suspended except in cases of invasion,
insurrection, or rebellion, or imminent danger thereof, when the public safety requires it (Article 3,
Section 15)
Therefore, the protection of the right to life under the human rights law and under the
humanitarian law is a right of every human being may he be an ordinary person during peacetime
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or a civilian or a prisoner of war during armed conflicts which can never be suspended either in a
war or in any form of state of emergency
NATURAL LAW THEORY IN HUMAN RIGHTS
a) Religious / Theological Approach
- Concept of the dignity of man as a consequence of human rights
- Doctrine of a Supreme Being
- The belief of a universal common creation means a common humanity and consequently
universal, basic and fundamental rights. Since rights come from a Divine Source, they are
inalienable and cannot be denied by mortal beings (man).
- It is the interpretation of man loving his neighbor. The concept of brotherhood of men
means respecting the rights of man. This illustrates the universal concept of human
rights. In short, the dignity of human person is realized through love of fellowmen.
b) Natural Law Theory
- Originated from the Stoics and elaborated by Greek Philosophers Plato and Aristotle and
later by ancient Roman law jurists perceives that the conduct of men must always
conform to the law of nature.
- Philosopher, in their search for the truth, must be in accordance with nature which is
eternal.
- The theory of natural law became the basis of the natural rights of man against
oppressive rulers. The main characteristic of natural law is that natural law leaves vague
what is part of the law of nations and, therefore, is inalienable.
c) Historical Theory
- Advocates that the human rights are not deliberate creation or the effort of man but
they have already existed through the common consciousness of the people of what is
right and just. Human rights developed through the common consciousness of men.
- Unlike the positivist theory, the historical theory believes human rights exist through
gradual, spontaneous and evolutionary process without any arbitrary will of any
authority.
- Customs and traditions (example)
d) Functional or Sociological Approach Theory
- Under the functional or sociological theory, human rights exist as a means of social
control. Also known as the sociological approach, human rights exist to serve the social
interest of society.
- The approach is now to focus on rights in terms of peoples wants and concern.
e) Positivist Theory
- Also known as the positivism theory state that all rights and authority come from the
state and what officials have promulgated.
- The only law is what it is mandated by the sovereign. The human rights are to be found
only in the enactment of a law with sanctions attached. Natural law and natural rights
can be valid only if they can be enforced by the state. A right is enjoyed only if it is
recognized and protected by legislation promulgated by the state. The source of rights
can be found only in the promulgated law and enforce by the state.
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f) Marxist Theory
- Emphasized the interest of society over an individual mans interest. Individual freedom
is recognized only after the interest of society is served. It is concerned with economic
and social rights over civil or political rights of community.
g) Theories of Justice
- Respect for human rights serves the ends of justice.
- Each person possesses inviolability founded on justice. The liberties of individual can be
achieved only in a just society.
- The general conception of justice is one of fairness and those social primary goods such
as opportunity , income and wealth and self-respect are to be distributed equally.
h) Theory based on equality and respect of human dignity
- Equality with respect to basic liberty means the recognition of individual rights in the
enjoyment of the basic freedoms such as freedom of speech, religion, assembly, fair trial
and access to courts.
- Government must treat their entire citizen equally.
i) Theory based on Dignity of Man
- Proceeds on the premise that human rights means sharing values of all identified policies
upon which human rights depend on. The most important values are respect, power,
knowledge, health and security.
- The ultimate goal of this theory is a world community where there is democratic sharing
and distribution of values. All available resources are utilized to the maximum an the
protection of human dignity is recognized.
j) The Utilitarian Theory
- Mainly based on the philosophy of English jurist Jeremy Bentham, seeks to define the
notion of rights in terms of tendencies to promote specified ends such as common good.
- Believes that every human decision was motivated by some calculation of pleasure and
pain. The goal is to promote the greatest happiness of the greatest number.
- Under this doctrine, everyone is counted equally.

CATEGORIES OF HUMAN RIGHTS


a) As Fundamental Freedom in Political Rights
- Contained in the Bill of Rights of the 1987 Philippine Constitution Article 19
- Including freedom of conscience and religion; freedom of thought, belief, opinion and
expression; freedom of the press and communication; freedom of association of
peaceful assembly
- Rights to privacy, reputation, and human dignity
b) As Democratic Rights
- Exercised in a democratic state
- Right to vote and to participate in the electoral process, and the right to participate in
public or governmental affairs.
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c) As Mobility Rights
- National and international in character
- Right to ones country, and the freedom of movement within the country
d) As Right to life, Liberty and Security of the Person
- Represents the core of the fundamental rights which relate to the right to physical and
personal integrity, consistent with human dignity.
- Right to protection against political and other extrajudicial killings, the disappearances of
persons, and torture and other cruel, inhuman or degrading treatment or punishment.
e) As Legal Rights
- Include the freedom from arbitrary arrest and detention and the protection against
unreasonable searches and seizure, right to counsel, right to fair and public trial,
presumption of innocence, and the right against self-incrimination
- Rights to due process and to accused persons.
f) As Rights of Equality
- Everyone is equal before the law and is entitled to equal protection or the equal benefit
of the law.
g) As Economic, Social, and Cultural Rights
- Considered more of standards to be observed by the state.
- Include the right to social security, social insurance, protection and assistance to the
family, right to adequate living, adequate food, clothing, housing and right to physical
and mental health.
h) As Workers Rights
- Right to association, organize unions, bargain collectively, prohibition of forces labor,
prohibition of children employment, and guarantee of minimum wages and other
support.
i) As Aboriginal Rights
- Rights are associated with the rights of indigenous cultural tribes or communities
j) As Reproductive Rights
- Right to found a family and bear children, to gender sensitivity and the biomedical
technology, and to family planning
- Guarantee life of the unborn
k) As Protective Rights of Persons in Armed Conflicts
- Rights are provided in the international humanitarian law for the protection of children,
women, and non-combatants during internal armed conflicts.
l) As Right of Self-determination
- Right of people to be free from colonial rule and decide their own destiny
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m) As Minority Group Rights


- Right to the protection of ethnic linguistic and religious minorities.

SOCIAL WELFARE RIGHTS


Economic, Social Rights are those which the law confers upon the people to enable them to
achieve social and economic development, thereby ensuring them their well-being,
happiness and financial security. Examples are the right to property, education, and
promotion of social justice.
Cultural Rights are those rights that ensure the well-being of the individual and foster the
preservation, enrichment, and dynamic evolution of national culture based on the
principle of unity in diversity in a climate of free artistic and intellectual expression.

NEGATIVE RIGHTS
Civil Rights those rights which the law will enforce at the instance of private individuals for the
purpose of securing to them the enjoyment of their means of happiness. They
include the rights against involuntary servitude and imprisonment for non-payment
of debt or poll tax; the constitutional rights of the accused; the social economic
rights; liberty of abode and of changing the same.
Political Rights are those rights which enable us to participate in running the affairs of the
government either directly or indirectly. Examples are the right to vote, right to
information on matters of public concern, and the right to initiative and referendum.

DOCTRINE OF PARENS PATRIAE


In law, it refers to the public policy power of the state to intervene against an abusive or negligent
parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in
need of protection. For example, some children, incapacitated individuals, and disabled individuals lack
parents who are able and willing to render adequate care, thus requiring state intervention.

FORMER UNDERSECRETARY JOC-JOC BOLANTE CASE (Right of Asylum in the US)

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THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES


ARTICLE XIII
HUMAN RIGHTS
SECTION 17.
(1) There is hereby created an independent office called the Commission on Human Rights.
(2) The Commission shall be composed of a Chairman and four Members who must be natural-born
citizens of the Philippines and a majority of whom shall be members of the Bar. The term of
office and other qualifications and disabilities of the Members of the Commission shall be
provided by law.
(3) Until this Commission is constituted, the existing Presidential Committee on Human Rights shall
continue to exercise its present functions and powers.
(4) The approved annual appropriations of the Commission shall be automatically and regularly
released.
SECTION 18. The Commission on Human Rights shall have the following powers and functions:
(1) Investigate, on its own or on complaint by any party, all forms of human rights violations
involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights of all persons within the
Philippines, as well as Filipinos residing abroad, and provide for preventive measures and
legal aid services to the under-privileged whose human rights have been violated or need
protection;
(4) Exercise visitorial powers over jails, prisons, or detention facilities;
(5) Establish a continuing program of research, education, and information to enhance respect for
the primacy of human rights;
(6) Recommend to Congress effective measures to promote human rights and to provide for
compensation to victims of violations of human rights, or their families;
(7) Monitor the Philippine Government's compliance with international treaty obligations on human
rights;
(8) Grant immunity from prosecution to any person whose testimony or whose possession of
documents or other evidence is necessary or convenient to determine the truth in any
investigation conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or agency in the performance of its
functions;
(10) Appoint its officers and employees in accordance with law; and
(11) Perform such other duties and functions as may be provided by law
SECTION 19. The Congress may provide for other cases of violations of human rights that should fall within
the authority of the Commission, taking into account its recommendations.
CHR IS NOT A QUASI- JUDICIAL BODY
Not meant by fundamental law to be another court or quasi-judicial agency
Most that may be conceded to the Commission in the way of adjudicative power is thatit may investigate, receive
evidence and make findings of fact as regards claimedhuman rights violations involving civil and political rights.
Fact finding is not adjudication, and cannot be likened to the judicial function of a courtof justice, or even a quasi-judicial
agency or official

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