= CHAPTER I INTRODUCTION , A. RATIONALE The United Nations General Assembly (UNGA) proclaimed the commencement of the World Programme for Human Rights Education on January 1, 2005, following the UN Decade for Human Rights Education in 1995-2004. Pursuant to that, the Commission on Human Rights (CHR) of the Philippines issued Resolution Nos. A2007-028 and A2007- 029 urging the Commission on Higher Education and law schools in the Philippines to offer Human Rights in the Philippine Law curriculum. Subsequently, on December 19, 2011, the United Nations General Assembly (UNGA) adopted the United Nations Declaration on Human Rights Education and Training. Article 3 of the declaration states that Human Rights education ing “concerns all ages” and “all levels” including pre- mary, secondary and higher education. _ More than sixty (60) years since the adoption of the Universal Declaration of Human Rights and the ratification of several human rights treaties by the Philippines, as well as the consequent enactment of domestic human rights legislations along the way, the appropriate and formal education and training on human rights Jaws in the country are still slacking. There are still law schools that do not offer Human Rights Law as a separate subject, and majority of university courses do not include the subject in their curricula. As a result, we have professionals who are only semi- literate in human rights. Many do not have an inkling of what the Universal Declaration of Human Rights is all about. Millions of Filipinos are not aware of the international human rights conventions that were ratified by the Philippines by virtue of which obligations arise. Whenever we get some international attention for human rights abuses, people tend to think that it is just those iil superpowers” interfering in our affairs again. Many people € government do not quite comprehend the concept of “State ‘Sponsibility.” Whenever these government people are taken to 12 INTERNATIONAL AND PHLPINE MAR a an task for fue to protect human rights, they tend to think th jun those hutdmouthed protesters and “communists? com nat yain, Phislack of oF insufiient education and training of Fights laws has spawned a lot of unnecessary hatred vyet™®2 Ctolnce in the country, and tis about time that the United n° declaration be faithfully heeded, ling Itis interesting to note, though, that the Philippines is, among the frst countries to ratify important human rights aca? and was even one of the members of the first United Neti Human Rights Commission responsible for the drafting of? Universal Declaration of Human Rights. So, while the enusa.et the population at home still needs to be educated in order forthe to know, understand, and respect human rights, ‘= Without a doubt, the most effective tool against human right abuse is education: it makes a person les likely to commit human rights violations, and less likely to become a victim either. As stated in Article 2 of the UN Declaration on Human Rights Education ‘and Training, “Human rights education and training comprises all educational training, information, awareness-raising and learning activities aimed at promoting universal respect for and observance of ‘all human rights and fundamental freedoms and thus contributing 1, inter alia, the prevention of human rights violations and abuses by providing persons with knowledge, skills and understanding and developing their attitudes and behaviours, to empower them to toniribute to the building and promotion of a universal culture of human righ's.” ‘The aim of this book is to introduce readers to the general principles of human rights laws, the important human rights documents, the core human rights treaties, and the strategies and ‘mechanisms for the protection of human rights. Both international and Philippine sources of human rights law are treatised in this book ng B. SCOPE AS A SUBJECT In the Philippine legal education curriculum, Human Rights Law is part of Political Law. The Bar ‘on Political Lawin the recent pastasked quite a number of questions on this particular field of law. Internationa! caminations dent subject in law school, i usually covers an inde ot Human Rights La, the United Nations ape general Pry human. rights treaties and their application and Sym, the Or ens, International Humanitarian Law, and al Lribunals, In many aspects, the subject 8 nal erin te a rh Criminal La, Lor Law and Tot inlet Uf the International Law cours, exphass is given As art ation system and the Internations! Bil of Rights he Unie Mn rights treaties are sometimes sidelined in this Ste ‘pe thrust a eels the BO of the United Nations now is to make available at per education nd taining op human igh aw ciples of the Universal Declaration on Human bese 00 Er uman rights documents. The UN Declaration on righs and tg Education und Training ims to raise “awareness, Humay nding and acceptance of universal human rights standards sls an wel as guarantee a the international, gional end Protinal levels for the protection. of humen rights and eeijamenal freedoms.” ak ¢. PHILIPPINE CONTRIBUTION TO INTSRNATIONAL E HUMAN RIGHTS LAW Philippine contribution to UDHR ‘The Philippines was a member-of the first United Nations Commission on Human Rights, which was composed of only sixteen (16) countries, From 1946 to 1948, this Commission was responsible for the drafting of the Universal Declaration of Human Rights (UDHR,, the first document to embody the aspirations of states for ‘world community based on the recognition and respect of human Fights, The Philippines was also one of the original forty-eight (48) countries that adopted UDHR on December 10, 1948. Philippine participation on core human rights treaties Both the International Convention on Economic, Social and Cultural Rights (ICESCR), and the International Convention onsp ALAPPISE HUMAN RICE yg pereanaTIONAL ee nasnec) were sed BY the Philiping CP pox entered into force. Howey , by te Philippines on June7, 1974" ed he ICCPR was ratified. 1 mgt aor 23, 1886 ween force in the country frog " Jaowhen President Ferdinand Marg Ment Corazon C. Aquino taking over ras only 19 with Presi 173 to 1983. It wi toe pid ‘The Philippi Joo among the fest SiENCTS Of thy pines was Hans Racial Discrimination. To date 1 Coane re human rights treaties, except ang the country bas rai ention forthe Protection of All Persong ie, the Internation’) Cor which entered into force in December from Enforced Dist noe thatthe Philippines usually signs ang = ie rights treaties without reservations or comments, ratifies uma ines was al International ‘On women’ rights: the mother" of CEDAW is a Filiping rman rights treaties that could definite one ora cen ay areimination Against Women (CEDAW). Unknown to many, thers the brainchld of a Filipina Letitid Ramos-Shaha iit rmer diplomat and senator. She is a genuine trailblazer for women's rights, and she almost singlehandedly placed the Phitppines in the international map on Women rights crusade In 1974 she became the chairperson of the UN Commission on the Status of Women, which organized the First World Conference on Women, in Mexico City. Shahani is credited for the preparation and submission of the complete draft of the Convention on the Elimination of Discrimination Against Wonen, even without the clearance from the Philippine government. This author would like to refer to her as the “mother of CEDAW.” Another women’s rights instrument that she pushed for was “The Forward-Looking Strategies for the Avancomont of Women” PLS). As the Seeretary-Genoral for ~ the Nairobi Conference in 1985, she successfully engineered the ‘Adoption ofthe FLS despite the initial controversy it generated. INTE ON mcs 5 Membership to the International Criminat ¢ ‘ourt ayo hous ate the Ineroaonal Crimi ving become a member only on November i, minal Court, having tame in actively getting involved in the tye Pt Pbines Jost owing month, Miriam Defonsor-6; court's actviti Theft and International Law expert ae on its nat, a cer ‘expert, was elected as judge nf the court p. HUMAN RIGHTS LAWS OF THE PHILIpPIVES ‘The Philippines had been conscientious in complying wi ovtigivant municipal laws designed to ensure domestic compan Many of these domestic laws adopt the language and wording waed international conventions, sony to emphasize the cosncey ‘The sources.of Human Rights jurisprudence inthe Philippines ro the Philippine-Constitution, legislative enactments, Supreme eine rules, rulings and-orders, and executive iscuanees. All the three (3) departments of government are actively involved in the policymaking aspect of human rights protection. However, the fll, Pr eution and widespread implementation of such policies still leave rmuch to be desired. Philippine jurisprudence on humen rights includes the following: 1, The Philippine Constitution — Contains the Bill of Rights; lays down the bases for all the civil, political, economie, social and cultural rights of persons. 2, Rights of the child 2.1. RA 9344 — Juvenile Justice and Welfare Act of 2006 2.2, RA 7610 — Law Against Child Abuse 2.3, RA 9231 ~ Elimination of the Worst Forms of Child Labor 2.4, RA.9775 ~ Law Against Child PornographyINTRRNATIONAL AND PHILIPPINE HUMAN tng, Lay 2.5. RA 8044 — Youth in Nation-Building Act 2.6, RA 6972 — Act Establishing Day C. Every Barangay Care Centerig 2.7, PD 603 — The Child and Youth Welfare Coq, Rights of women ze! 3.1. RA 9262 ~ Anti-Violence Against Women and ‘Their Children 3.2, RA 10364 — The Expanded Anti-Traf Persons Act of 2012 icking in 3.3. RA 9710 — Magna Carta of Women 3.4, RA 7877 — Law Against Sexual Harassment 8.5. Act 4112 ~ Women Suffrage Act 36, PD 689, as amended — Creating the Nation ‘Commission on the Role of Filipino Women atonal 8.7. £0273 — Philippine Plan for Gender-Responsive Development 3.8. Pres. Proc. 1172 — Campaign to End Violence Against Women 3.9. RA 6955 — Act Against Mail Order Brides, Rights of Lesbian, Gay, Bisexual and Transgender Persong(LGBT) 4.1. Ang Ladlad vs. COMELEC, April 8, 2010 Rights of Senior Citizens 5.1, RA 7432 — Senior Citizen’s Act 5.2, RA 7876 — Senior Citizen Center Act 5.3. RA 9994 — Expanded Senior Citizen Act Rights of Disabled Persons 6.1. BP 344-= An Act to Enable The Mobil Disabled Persons 6.2. RA 7277 — Magna Carta of Disabled Person ity of 7 46.3. RA 9442 — Law Amending the Magna Carta Of Disabled Persons G4. RA 10070 — Act requiring the creation of Persons with Disability Affairs Office (PDAO) by Jocal government uni 65. DILG MC 2009-37 — On issuance of jientifieation cards and purchase booklets for PWDs 6.6. DILG MC 2009-29 ~ On community-based programs for children with disability 6.7, Adm. No. 35 — Directing departments, bureaus, agencies and educational institutions to conduct tetivities during the annual observance of the National Disability Prevention and Rehabilitation Week Rights of Workers and Laborers 74, PD 442, as amended — Labor Code of the Philippines, incorporating the New Labor Relations Law and the Prohibition on Discrimination Against Women 7.2. RA 8024 — Migrant Workers Act 73. RA 10022 — Law amending the Migrant Workers Act 7.4, RA 8187 — Paternity Leave Act Right to social security ‘8.1. RA 8282, amending RA 1161 — The Social Security Law 8.2 RA 8291 — The Government Service Insurance System Act Right to Health 9.1. RA 7875 — National Health Insurance Act 9.2. Pres. Proc. 46 — Child and Mother Immunization Project8 INTERNATIONAL AND PHILIPPINE HUayy a 10. Right to.a healthy environment 10.1, Oposa vs. Factoran, July 30, 1999 11, Right to privacy 11.1, SCAM. No. 08-1-16-8C — Th Data Rae on Hat 11.2, RA 9995 — Anti-Photo and Vi 43 nti ‘and Video Voyeurig, 11.3. RA 10173 — Data Privacy Act of 2012 12, Right to life, liberty and security H 12.1, The Anti-Enforcedor Involuntary Dis ‘Act of 2012 ary Disappeerang 12.2. RA 9745 — Anti-Torture Act 12.3. The Rule on the Writ of Amparo 124.Adm. Order 181 ~ Investigation ang Prosecution of Political and Media Killines 12.5. Adm. Order 197 — Enforced Disappearanois and Killings 13, Remedies of unjustly arrested and/or detained persons 13.1, RA 7309 — Law Creating the Board of Claims 19.2, Rule 102, Rules of Court — The Rule on Habeat Corpus 13.3, Rule 9439 — Law Against Hospital Detention 13.4. RA 10368 — Human Rights Vietims Reparation and Recognition Act of 2013, 14, Rights of accused, victims, and witnesses of crimes 14.1. RA 8505 — Rape Victims Assistance Act 14.2. RA 6981 — Witness Protection Act 14.3. RA 9999 — Free Legal Assistance Act 14.4. RA 946 — Law Abolishing Death Penalty 14.5. Bill of Rights, Philippine Constitution 14.6. Rule 115, Revised Rules of Court Other human rights violations penalized ee jg, Act 9815 — Revised Penal Code of the Philippines 16, Human Rights mechanisms 16.1. EO 163 — Creating the Commission on Human Rights 16.2.RA 9201 — Consciousness Week 16.3. PD 443 — On Delivery of Social Services. National Human Rights |B CONSTRUCTION OF HUMAN RIGHTS INSTRUMENTS rumen Rights law is dynamic, and continues to evolve. The Hund embodying human rights trealies, laws and principles insramem™ instruments that must be interpreted in the light of are “ving’ etorrounding and. attendant. to every case. "Thay ret pe tied down to obsolete practices and beliefs but havé to be aa del nalcoges iy wen ee Toyrelevance at all. ) When a human rights law has the effect of modifying another tev without repealing the latter, an attempt at harmonizing fen has to be made. For instance, the law against trafficking in persons makes clear that trafficked prostitutes are to be considered fine end are not to be prosecuted. However, the trafficking law does not operate to repeal Article 202 of the Revised Penal (ie on prostitution absolutely. Thus, this law punishing women fr postition atil remains, it being one of the few remaining dactininatory laws against women in Uhis country. Where two (2) ‘oparently inconsistent laws ean stand independently, they have to beinterpreted inTavor ofthe validity of both. Thus, a prostitute who Snot trafficked, or a freelance commercial sex worker, may still be ‘ellabe for prostitution under the Revised Penal Code. (The part” ‘Arce 202 on Vagrancy was finally repealed in April 2012.)CHAPTER II HUMAN RIGHTS, ITS ATTRIBUTES, ORIG THREE “GENERATIONS” | N AND Tig I A. MEANING OF HUMAN RIGHTS ‘The Preamble of the Universal Declaratio (UDHR) mentions the “inherent dignity and oy Auman Righty inalienable rights of all members af the human’ ange ttl nd Fights are not granted by the State, nor stemmed from tan ina country. Human rights are rights itizenship being a member of the human species Many in the Philippines think that human rights ob 7 are purely governmental, or that the scope ofthe right = eet to political beliefs, or that human rights pertain i. cet economic or social rights of« particular exclusive group offen Often, this myopic view gots abused for political agends we we see human rights violations committed by state-agenta rss aro supposed to protect human rights, just as we see violeties committed even by elements calling themselves “human rights advocates.” We see many armed conflicts fought in the name a freedom and human rights, and yet we see the innocent and the peace-loving being deprived of their rights and freedoms because of these so-called “freedom” wars. Without a more open-minded and comprehensive understanding of human rights, there will always be the possibility to address one aspect but at the same time violate another. Human rights law is a broad field, and includes not only tbe relationship between men and government, or the civil and political Tights of the people, but extends as well to their economic, social and cultural rights, to the right to development and a peaceful and clean environment where they could develop in all facets as human beings. It covers education, employment, health, family, and marraet famong many others. More importantly, it covers every individet and does not operate to protect exclusively only a particular Fos? of people. Both private individuals and public officers have to respect each other's rights. 10 n auto SS ATTRINUTES, ORIGIN AND THE THREE “GENERATIONS* co TS, i ATTRIBUTES OF HUMAN RIGHTS tn n Rights have the following attributes, Universal. — Human rights apply to all humans, regardless of race, culture, age, sex, or creed, 1 Human » Inherent. — All human beings are born with these rights; these are not conferred by any authority, gual. — Every human being has the same set of rights as any other. Article 1 of the Universal Declaration of Human Rights states that, “All human beings are born free and equal in dignity and rights. Inédi@nable. — Human rights cannot be taken from or given away by any human, While its exercise may be regulated or restricted by law, its substance cannot be taken away. » 3) 4) IL (ORIGIN OF HUMAN RIGHTS “Human Rights” is @ relatively modern concept that gained considerable attention only after World War IL. Although the rights sfsen areas old as man himself, the concept of human rights and thee protection by the State were unheard of then. Suciety needed a government for order and survival. However, inthe past, most government systems were despotic in nature, the Philippines included. We had the datus and the rajahs before ‘the Spanish came to colonize us and place the nation under the azatol of Spain. Despotic systems had rulers with vast powers, saercising the roles of lawmaker, judge, landowner, people-owner, high priest, and in some imperial systems, even the son of God or ‘supreme deity. Social order centered on the ruler and the elite, is fr some reasons, tend to develop hubris syndrome. We read of kings who ordered the killing of subjects without hearing their {as cven for the fimsiest reasons, in very brutal ways, auch as Sming, mutilation, and feeding to wild animals. Subjects rendered tea’ mithout compensation all their lives for the enrichment of j Jalty and nobody eared how they managed to survive in their ‘afar. The peasantry was not the only clase deprived of theira INTERNATIONAL AND PUIAMPINE gay, eo human rights. History tells us that members of the suffered when they fell from the ruler's grace, Pvally Although some of the religions started off aq dictatorial regimen, some of them evolved ints toe themselves. When some religions became very powesft them became selfish controlling, manipulative und exe "2" the medical perio, region was sometimes used as gay of imperialism, to eonquer not only lands but ala the ma pepe into submission. Several bloody erusades were a th ‘name of religion. In Europe and Asia, there were. religious Mint, who wielded so much power not only in their churek, ey governmuant and in businoss, Dat al " tor hy, u Back hen, the members ofthe working clas w five them. Human Rights protection forthe peasanty way ga af reedon of expression was taken as heresy, and the monanie religious leaders were the absolute authority a In the late 1800's and the beginning of 1900%s, science a education empowered more people and made them more enticg ‘The working class started to assert itself, and the elite bern to treat workers better. The transition was a difficult time iy both classes, and a lot of blood was shed to drive home the pin Consequently, more liberal rulers emerged, and more demorate governments developed. The monarchies became more peop oriented, end commoners began occupying important postin in government. The world started becoming more liberal ini outlook and respectful of the individual's freedom to think ani believe. Religions, on the other hand, started accepting schoss of thought which otherwise would have been regarded as hers and outrageous. In fact, many religious educational insttutim could be credited for some of the early stages of human right education. i ‘As the necessity for trading and mutual assistance ae” countries became inevitable, organized governments and econosie started forging diplomatic relations. The League of Nations wi horn in the 1920's, and the concepts of sovereignty, independens = and interdependence were formalized among the members oft Soa “ae sy ARNT ORIN AND THREE NATION ana - ve. Yet, at that time, human righ's principles were ee int for the outlawing of slavery and giving iy of excel fa writs oe . pat ck and the wounded in times o war. wie 1 (2) world wara when the issue of human c destructive effects of the wars impelled ries to come together and forge an caterent. coun sn world order throug the prtection of human ct 0G 1945, the Charter of the United Nations was On June tember 10, 1948, the United. Nations General or tr adopted the Universal Declaration of Human Asse! }) has since been observed as International nhs Dogs, Other treaties and protocols were thenceforth Hasan oy sates, To tit day, thee are ten 20) core human Sener D. THREE (3)*GENERATIONS” OF HUMAN RIGHTS ‘The three (3) generations of human rights refer to the ordér in siag nen particlar et of fighls began to develop and gain the amnion by states. The term “generation” does not mean that one set Sgeup eame after another set or group, or that the frst “generation” weendered obsolete when the second “generation” emerged. The ‘onntions” are fot also stages of the rights, because the third ipreration is not mere improvement of the seconé, nor the second. “Frere improvement of the first. Rather, the term “generation” refers to the succession of periods when societies and governments began recognizing aset of rights, though not necessarily inthe order of man's rity, for man’s frst priority was more economic than poltial, such as the right to food, ete, a right recognized by humans long before {premments and rulers eame into being. u 1. First generation human rights refer mostly to the politcabrights and vil liberties found in the International Covenant on Civil and Political Rights(ICCPR), such asthe Prohibition agninst searches and seizures, interruption of Peaceful meetings, or undue intervention to the freedom of expression. These are “negative” rights in the sense that they prohibit the doing of ‘something. They are the “No one shall” rights weeriened TH { MBL fy“ TERNATIONAL AND PLPPINE HUMAN py omy Second generation human rights are “positiyer that enjoin States to perform an act or do ana eth the enjoyment of these rights by the people, 1 &t mostly economic, social, and cultural rights ft the International Convention on Economie, Saag’ i Cultural Rights (ICESCR), such as the right to meet education and to fod, They are the “State shall rg, Third generation butan rights are newly oe, rights, uch as the right to development, the newt the people to lve ina clean environment right ag pence, ote Thess are also known an a CHAPTER III STATE RESPONSIBILITY wn THE STATE? ‘ ‘much clamor for the observance of human rights, Fe Oe aan and in media, The term human rights is 3 ort: but how fully do we understand it? Many of a oywor corm ually crops up only when the vt i a coh We often het the gripe "Pag rebelde ongbiktina, Eat man gh Pr eps o soo on aes, arent” restate an guarantor of human rights js not the giver of human: rights, for these are inherent Theta ie he ole)of the State in the social order is jn ll barat members of séciety acknowledge its authority and tose a cople properly. In turn the State must recognize ago herds and feedoms that are inherent in them sate Fe geen away, With this region i the State's duty ind Rrantee the continued enjoyment by the people of their rights. loguranse Sirdar to achieve a orderly society where there -rails a harmonious relationship between the ruler and the ruled, te ‘ruled must bow to the authority of the ruler, and the ruler must respect the inherent rights and fundamental freedoms of its citizens. ‘As guarantor of human rights, the State may be held ssounile when people are deprived oftheir rights by its tion x nacton (Nolsuch guarantee exists on the part of private entities and siliaas Ia security guard at a shopping mall checks a cusfoiner’s gon entrance, the customer cannot invoke the protection against ‘arratless and illegal searches, and sue the mall for violation ct hisher human rights for the guard's act, The Supreme Court nade a very instructive ruling on this in the ease of People of the Fhilppines vs. Andre Mart,' which will be discussed later. It does fe a e 6, aay 1, 3983, 5 en 1.6 107 ded ntyssXATIONAL AND PHILIPPINE HUMAN cever, that private persons are exempt from j vies *:tlations. They still are, although net tabi re of our existing “human rights mechanism, Tnder criminal law. Nonetheless, the Philippine ratification ‘ret Fame Statute in November 2011 may subject Filipino individyay snrnational criminal liability for certain offenses. Human ry Rholars also opine that corporations could be liable for hues rights violations. for the meaningful enjoyment of human rights by while aintaining the delicate balance of ensuring a peace Grdeny society under a regime of the rule of law, the State may evulate and limit certain activities of its people. By virtue of Pelice Power, Congress may pass laws to uphold and promge human rights as well as set parameters within which they ean be njoved. Executive officials may implement programs to enhane the conditions of the people and enforce laws for the observance of those parameters, and the Supreme Court may issue orders and ‘writs to protect human rights. In short, that “delicate balance” ran nly be achieved ifthe State promotes the respect for huian rights fand members of society acknowledge that the enjoyment of certain Tights is subject to the State's prudent and reasonable exercise of Police Power. Thus, the wisdom and application of the legal maxin in property lawr*Sic utere tuo ut alienum non laedas” (*S0 use your ‘wn as not to injure another's property"). rot meat for human rie! within the sphet Human Rights and the Rule of Law In order for society to strike the delicate balance between the government's authority to rule and the people's entitlement to their inherent rights, a strict adherence to the Rule of Law must be observed. : : Under the Rule Of Law, “the law is preeminent and can ser «as a check against abuse of power.”* This is opposed to Rule By Lew, ‘where the law serves “as a mere tool for a government that suppress ina legalistic fashion.® Fiamma, yan On The Rule of awe try, Polis, Theory, Cambridge Univesity ess 20M segchree ln ptevar Sugar oo is perhaps no better illustration of the contrast hetw, There of Law and Rule By Law than thisone by Presse ape terms De The early concepts of Rule of Law included those which [aSbuswng at the whim of princes and rulers for their subjcetsto ser eng conaered as ule of Law ony that set of ava whch sey. Anette Cason, and as Rule of Man that which was haseg on sas based a” Trjona! Many of these laws were not always just ard dora Tex sed lex” maxim became more of a threat rather Iereby people can seek redress for grievances, tren no, the term Rule of Law has been so used snd abused eel becoming hollow concept. But the "Rule of Law tbat it THould not be confused with the use of procedural seamen hich are allowed under certain rules or regulations, Sens a Dest ieglity to am act, Dut could infact be “suppression in a are ashon® the very thing that is anathema tothe Rule of Mee shy line of argument actually anchors on rules rather sa ynand pertains to rules” as ast of preseribed regulation, thon to “rule” a the authority for good governance, Rules ree onc eubvert che aw, ond the law inant confor fe sr tional imitations, Both must not be used asa shield to cover stats The genuine concept of Rule of Law ie and should be ea tat promotes and respects human rights. Violations by “State actors” States are abstract entities, they do not act on their own. stuies act through their agents, or “state actors.” When a State actor violates the human rights of an individual, it is deemed a violation by the State itself. Part 1, Chapter 2 of the Articles on State Responsibility provides the basis for State accountability ‘when a public officer violates the rights of an individual. This is the reason why demands for human rights are made against the vernment when, for instance, a police officer fails to observe the Munda warning, or makes shortcuts in implementing the law, or ‘anhandles a street parliamentarian or violates a person's right to Privacy on we EtINTERNATIONAL AND PHILIPPINE HUMAN ci Lam, Violations by private individuals dividuals of groups can commit human rights yj and cua be held lable for such. Individual Fesponsibin ar a ights violations committed by private persons aru 42, etipunished under the criminal law system, @ field of aw wh and eich intertwined with Human Rights Law, but is offeregt? werurate subject in the Law curriculum. Thus, a person who depr wept of his life, liberty, oF property may be charged under itu for homicide, kidnapping, oF robbery, for instance. For en happen, the act or omission must be defined and penalized ung fan existing domestic law, otherwise the offender could not be hel Tiable for i Nulla poena sine lege (There is no crime if there ig4 law punishing the act or omission). In order that human rights violations committed by individual who are not “State actors” can be properly dealt with, i is necesun that: ‘The State, through its lawmaking body, must onset the appropriate laws to criminalize the human rights violations, and b. The State, through its judiciary, must provide adequate judicial remedies. State liability for human rights violations committed by “non-State actors” State liability may attach for human rights violations committed by “non-State actors” if the State failed to pass laws to protect its people from these violations, and to provide for adequete judicial remedy. The State's role as guarantor of human rights ‘enjoyment and protection carries with it the obligation to ensure that State actors and non-State actors do not violate them. I B. INTERNATIONAL STATE RESPONSIBILITY Whenever a State ratifies a human rights treaty, it ony itself not only to observe the standards set forth in the treaty an see to it that its agents do likewise, but also to enact domestic lav* 19 cuATTE SF oNsINILATY cunt lations in order to hold private individuals accountable, 2 eee enT principle in international law is that indwideas raditior sctly bound by it, for individuals are not subjects at ‘The ne ire lr yrange trsty the Sate gree ok interme pational law and thereupon incurs responsibility. Tn tum, 5 mtermthas to ensure that the obligations under the treaty are the Stal? Tithin its jurisdiction by its people, Hence, the duty to obser corresponding laves of local application, enue ‘the State's responsibilityto ensure compliance wth international hes obligations does not end with the enactment of lca law; voan no se toi that those aggrieved by the violation of these itahoul Mave edequate judicial remedy. It is thus important that its sa mas the mechanisms, the integrity, and the accessibility to ede justice for vietims of human rights abuses, International State responsibility for internationally wrongful acts i In the international level, State liability may be incurred for intemationally wrongful acts, The Articles on Responsibility of States for Internationally Wrongful Acts adopted by the International Law Commission in 2001, provides in Article I that, “Every internationally turongful act ofa State entails the international responsibility of that State.” - Article 2 of the Articles enumerates the fallowing elements of an internationally wrongful act of the State: 1) ‘The act or omission is attributable to the State under international law; 2) ‘The conduct constitutes a breach cf an international obligation of the State. : The State responsibility extends to acts committed by instrumentalities of the State. Persons and entities which have the status of organs in the internal law of the State are included it the term(“State organs.t So also are persons and entities who, Although not organs of a State, are empowered by a law of that State ‘exercise elements of governmental authority.[TERNATIONAL AND PHILIPPINE HUMAN gy My expressly provides that, “The conduct of any onandered an act of that State under intern, Se lng Article 4 organ shall be tre ghether the organ exercises legislative, executive, judi 2H her functions, whatever position it holds in the organ? o and whatever its character ofthe central organ in of the Stat ° government or of territorial unit ofthe State. States also incur liability. if they’ fal? 0 prevent py individuals o groups ftom violating the human rights of othe M its Comment, the UN Human Rights Committee stated thats » ive obligations on States Parties to ensure Covenant rights Pais ally discharged if individuals are protected bythe Se Mt just against violations of Covenant rights By its agen, ‘also against acts committed by private Dersons or entities ihe sro impair the enjoyment of Covenant ryghts in so far as they an amenable to application between private persons or entities, Ther say be circumstances in which a failure fo ensure Covenant righten required by article 2 would give rise to violations by States Partesy thoee thts, as a result of States Parties’ permitting or failing ota, “appropriate measures or to exercise due diligence to prevent, pink senestugate or redress the harm caused by such acts by private pean or entities. States are reminded of the interrelationship betcen th positive obligations imposed under article 2 and the need to pro nective remedies in the event of Breach under article 2, paragraph $. The Covenant itself envisages in some articles certain ars lohere there are positive obligations on States Parties to addres th activities of private persons or entities. For example, the prvay related guarantees of article 17 must be protected by law. It isa implicit im article 7 that States Parties have to take positive measurs toenaure that private persons or entities do not inflit torture or er inhuman or degrading treatment or punishment on others within their power. In fields affecting basic aspects of ordinary life suck s ‘work or housing, individuals are fo be protected from diseriminatia within the meaning of article 26.” Inthelandmark Velasquez-Rodriguez.case® the Inter-Americs: Court of Human Rights found that the vietim Manfredo Velasqee ‘Tarmce 4 Draft Atle onthe Responsibly of States for Internationally Wrongful ACs tonal Law Commision, adopted at he 53d Seon 2003 we NtavueeRodrques Mondor, ner American Court of Haman Rs iy 29,908 Cine. (1988, NEEM Pa ed in the “hands of OF with the acquiew wihin the framework of a putter or pr ‘The Honduran government’ fui ron on the dikappearance, compound a tothwart the victims’ plea for-an inves nee” of Honduran ctice which wan "6 to conduct an with allegations of . tigation, was deemed attention of governments involvement in the diappeaen tne qunatdirctevience ofthe kidnapping woul be uneven sea iy been suppressed bythe government isle Ke el tat vg ernaioal La, a mpuiement of the burma rhs under ch is attributable. to public authority, “amuten se ver table to the State, Which shall sume respon perivative State responsibility for complicity ‘the general rules on attributing State Responsibility were mentioned earlier, ie, (a) dircet_responsibiity of the State merited by State actors, and () esponsibility for als outed rife actors when the Staie failed to pass laws. prevent nd punish Violations, and to provide adequate legal remedies. So ‘Renext question is, ean @ State be held liable for the acts of ‘another State? ‘Under our domestic criminal laws, @ person can be held lable Jortheaets of anotherby reason of conspiracy, or when he contributes tothe commission of the crime oF to the success of the criminal as a principal, accomplice, or accessory. To be considered such, he must fave performed an overt act. As a rule, mere presence at the seene afte erime oF acquiescence to the act is not punished. Under International Law, a State may be held liable for a buman rights violation even if it did not directly commit the act constituting the violation, provided that it assisted in the commission of the uct or allowed it to happen, similar to einspirator, accomplice, or accessory iH OUF Criminal law. Articles 16 and 17 of the Articles on State Responsibility provide fr “deringtigg responsibility,” which is aaibilty,” which is present where (a) the Sif sn the commission by another of the iateratidnaly wrt ct and (b) the State exerelses direct eS{INTERNATIONAL AND PHILIPPINE HUMAN rep oT ay ‘rhe principle of State Responsibility through oo probably onginated from the Nuremberg Principles, which roety proba i hats -Complintd i the commission of a crime gyn a neCora erime against humanity aw set joa" Wis erime under international law.” orth a In the case of Nicaragua vs. United States o the United States was held liable for violation of america aoe oranal aw en non-interference in the afairs of another inte ping- arming, equipping, financing and supp Ste for rai ie encOUFARINK, supporting and aiding military ary foros itaryacivties in and against Nicaragua.” For this rena PAT United States was ordered to make reparations for the injury caused by such violation, However, on the other issue of whether the United States shou likewite be held liable for producing and distributing a manual : ne ucrillas that tended to incite them to fight the Nicaraguoe nL the IC) held that the United States violated the gener 2 eo Tplow of humonitarian law by such aets, but found no basis i» Pela it lmable for the crimes committed by the guersiias. It should be emphasized that the Nicaragua ruling focused a State lability by reason of complicity, which should not be confused ster the ICTY ruling in the Delalic case applying the “overall wittrol test” in order to determine whether the armed conflict wss international or internal. peace, @ Principle Il, ©. PHILIPPINE CASES ON STATE RESPONSIBILITY able searches and seizures Prohibition on unreasoni te, and not against private is a restraint against the Sta individuals Inthecaseof People vs, Andre Marti,? the accused was convictel for violation of the dangerous drugs Yaw when he attempted t0 3? panjuana through a courier. It was found out upon inspection {he courier as part of standard operating procedure that the packstt rcargin Une sats of America, International Court of sce, une 27,1986 SG No 81561, January 18, 1991 currant Bs marijuana. The Supreme Court ruley sie meutd be admitted as evidence ven i these the itlegay senate Wiboi ran enn her ed the search was a civilian, not a government agent ia cuneate crea eae a petra ii ether pina reat hea orn et and lg agencies tasked with the enforcer ata a ier invoked against the State to whan (i jaw. Thus Uuinst arbitrary and unreasonable exercise of power wer is sand again in the 1969 case of Walker v. State (4: i wfovernment and its agents, not upon private ‘ndividiale Poter, 240 Cal, Appad G21. 19 Cop. ante as 121 ring Beople ¥- te v, Brown, Mo., 391 8.W.2d 903 (1965); State v. Olsen, ar a 917 P.2d 938 (1957).”" «For one thing, the constitution, in laying down the pri gthe government an he docs nt em rlationshipebetween individuals.” similarly, the admissibility of the evidence procured by ar individual effected through private seizure equally ales vraseu, to the alleged violation, non-governmental as it is, of Prrellant’s constitutional rights to privacy and communication. ight to a healthy dusticiability of the solidary environment ee In the landmark case of Oposa us. Factoran,}® the Philippine Supreme Court recognized the human right_of the children- petitioners to a balanced and healthful ecology and of the State's duty to protect that right, not only for the petitioners, but also for “furans yet unborn,” thereby Inying down the principle that the sidarity right to @ healthy environment isa justiciabe isue that, tan be properly raised before the courts of law in our jurisdiction. SSR Ne 101065, aly 30,1993, \d fundamental liberties of the people, does notINTERNATIONAL AND PTLIPPINE MAN Rey, OM ay “ ‘This in particularly significant becatse this right ig g ook th a third generation” right, and eens tpn aren, there had been mich debate, sil ung ly aentpt time, as to Who has responsibility for violations of yoga? ithe spate of disasters brought about by eqns rights, negligence. In the Oposa case, the petitioners were all m thrush their parents, They asked the Court to hav ig arrrncironment and Natural Resources cancel the Timber Lic ‘Kureements (TLAS) issued by him and to cease and desig Rasther issuances, claiming that these would be Violative often right to selE-preservation and perpetuation. ‘The Supreme Court laid down the Doctrine of Intergener tional Responsibility in this ease. This means that the pracy eneration holds the natural resource treasures of the enrth nt, Fertpe benefit, enjoyment, and use ofthe generations of humankia Sotto come, and the State has the responsibility to prote and yy {io it that this be realized. ae ‘The ease was brought against respondent Factoran, in i capacity as the Secretary of the Department of Environment nj Natural Resources, thus ascribing responsibility to the State te fete ofits officials. Although what constituted potential humin Fights violations were activities of private corporations and busines ceniities, the State has the power ta regulate these activities, anit fb the exercise of this power which is the crux of the controversy Because the private business entities were not impleaded in th cave, the issue zerved in on State Responsibility to protect th human right toa clean and healthy environment. 1 would have been a lot more tricky if the case involrd private entities or corporations, especially when the corporation fre “citizens” of another country. In the case of transnationl ‘corporations which operate in many countries other than that whee itis a national of, accountability may be difficult to enforce and sat# responsiblity may be hard to determine. ‘The norms for the responsibility of transnational corporal: for violations of human rights are still to be formalized Eiforts 2° ongoing for the adoption of U.N. Doc. E/CN.4/Sub2/20081.1*5 52 (2003) (The Norms on the Responaibiities of Transnatin# Are st mt FY Huma by the UN Sub UN Sub. uman Rights, tthe Writ of Kalikasan ‘the human right to a balanced and hea ne tos ith the suance of he ae oy sit CoA Ne Pi Bet of Kalikas, ule 7 on he wrt a remedy Availabe to natural . alton oF any buble iter grup’ none re oeed with any BOVE en beba ret by oe ‘eatigtional right to f balanced and healthful ecology ve rane cofeatened with violation by an. unlawl i Tolateds sifneffcial or employee, or private individual or entity, cmealae Paral damage of auch magnitude ax to rene ene thor property of inhabitants in wo or more cites or provirees 1, @. COMMAND RESPONSIBILITY Lishilty for violations of human rights in the scriinal ability under the Revised Penal Code may be net ‘hac or omission: The offender can be made ta aneser erty a6 wel as for his inaction, when such act or inaction roam inhuman rights violation. The failure of a superior office: ee human rights violations committed by his subordimes, thee heat showing that he directly ordered the eommissay, dre acts, could still make him Tiable as well"for such acts, unde a Doctrine of Command Responsibility. ee The Yamashita Standard One of the earligst_ and set, most internationally” persuasive ‘ein on thi i case originating fom the Philippine, later nated to the United States Supreme Court. se Fett ty ha : foiling Wrram ame on6se, BE in IT oda a TERNATIONAL AND PHILIPPINE HUMAN Rigi, s a, gays TOS * cura rs Re Yamashita? is a cose involving General ir «i aie opr a et geno oa, ta ae chrged fr vlaions ofthe Leg "RY ic gape PeSnnection with the My Lai May S Army Captain Ernest to. We pein 1D he Me issacre during the Vi e however, Medina was acquitted cone the Phil nl warding and failing. 2 ee cn eas meas A ye fein comsg them to commit warcimes’” There Nore olegations unr the Rae elt) conmanee sea a realising | aig 2 8 military commander shall be ieee lg le or ems committed by forces under his or herettnn Tapanese Of exterminate a large part of the civilian po or effective authority and c mini Pulatig 1 1d con as an Y a result Bi ‘i It of which than te mangas Province as @ result of which more than 25.0 a je of Balane children all unarmed noncombatant civilian, ze cee are eer contra rope ee ich ean Drutally mistreated and killed.” Swen RN be discussed more ‘extensively under Chapter XVI, ‘A military commission heard the ease of Yamashita convnton, Yamashita applied fora wat of habeas corpus belie coins Supreme Court, wherein be assailed the commis Philp riiiclon, among others, The Philippine Supreme ca lack of jSplication and ruled that the Commission was val denitated The case was elevated tothe US. Supreme Court, ws, conti Yamashita guilty and sentenced him to death, The Cour found at under International Law on the law of war, vilatiw ruled ce tobe aveided through the eantal of the operations of wit, commanders who to some extent are responsible fo th wer Minates” As commander, General Yamashita was under a Sufhrmative duty to take such measures as were within his pee see pproprate inthe circumstances to protect prisoners of waren tho civilian population." ‘The Yamashita ruling resulted in a new legal standard, to speak, governing command responsiblity, which grins ve svlercble international acceptance as part of interatind Coetomary law. The "Yamashita Standard” was applied in © sesatns although there are criticisms against, such asitsdoubfs polceblity in cases where those charged are commanders ofr aprties which are not recognized as States. For instance, Treteal Criminal Tribunal of the former Yugoslavia (CT! aarrae efoence ta this standard im the cases brought bln fand understandably so, because the circumstances SurT such cases are different. 6 =—_ rs 2 Rome Satie ofthe internation Criminal Court. / lobe, sn gee bbe