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TEMPROSA CASTILLO | 1
NATURE AND BASIC PRINCIPLES Cyrus the Great – after conquering Babylon, he freed the slaves. Liberty to
choose religion. They engraved their words and called it Cyrus Cylinder.
OF HUMAN RIGHTS Then to Greece, India, then Rome.
I. WHAT IS A HUMAN RIGHT (Video UN Human Rights)? People naturally followed certain law, even if they were not told to; it was
Because we are human beings, there are things that our government must called Natural Law – BUT kept getting trampled on by those in power.
do
Everyone has them – man, woman, children In England – Magna Carta; King agreed that no one can overrule the rights
1. Respect. Avoid putting limits to what a person can do. of the people, not even a Kind.
2. Protect. Safeguard person from abuse. 1689 – Bill of Rights
3. Fulfil. Provide basic conditions to enable the person to achieve the
potential. America was born; French followed. Rights were not made up.
Natural Law became Natural Rights.
Most basic, minimum human standards have been written down and
discussed by countries. Countries have agreed to this and became Napoleon – “Emperor of the world” but was defeated.
international law. An example on where it can be found: Constitution (Bill of
Rights). Article 3 of the United Nations Charter (promoting and encouraging Mahatma Gandhi – rights are rights; not just the Europe.
respect for human rights and for fundamental freedoms for all. Achieved Hitler – killed people; human rights horrifyingly was almost extinguished.
through organizations arounds the world.
- UNHR 1945 – United Nations was established. Goal was “to reaffirm faith in
- Committee of Experts fundamental human rights, in the dignity and worth of the human person.”
- Assembly of countries
1946 – under Eleanor Roosevelt; set of rights – Universal Declaration of
II. THE STORY OF HUMAN RIGHTS Human Rights
(Interview of people *not sure about what human rights is*)
Happily ever after?
Human – a member of the homo sapien species; a man, woman or child; a BUT; IF THE FOLLOWING ARE GUARANTEED:
person - Right to food and shelter? People are dying of starvation everyday
Rights – things to which you are entitled or allowed; freedoms that are - Freedom of speech? Thousands are imprisoned for speaking their
guaranteed mind
Human Rights – rights you have simply because you’re human - Education? Millions of adults still cannot read
- Slavery? A lot are still slaves now.
Examples: To live freely; To speak your mind
Applies to everyone, i.e. universal Problem: The UNDHR does not have the force and effect of law. It was
optional. Words in a page. Who will make those words a reality?
Right to Life
We are all born free and equal Marx marched. Nelson Mandela spoke up and fought. Those who fight today
Freedom of religion are not giants or superheroes – but people, who refused to be silenced. It is
a responsibility we all share together. We are after all where the universal
Per UN, there are around 30 rights which are lumped into “human rights”. human rights begin – the world of the individual person.
They are found in the Universal Declaration of Human Rights.
Unless these rights have meaning in the little places, they have little
At first, there was no human rights. If you were with the right crowd, you’re meaning anywhere.
safe. But if not, you weren’t.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 2
Everyone benefits of them from birth. Not all are powerless – European Court of Human Rights. It issues binding
decisions.
Human Rights – absolutely necessary to live well
Human Rights – constantly developing.
Civil & Political Liberties
And, now increasing internet experience – should there be a right to
Rights are interdependent, indivisible, and interrelated. internet?
Who does what? Not a legislative text. A declaration. Most states have
integrated this in their Constitution.
SAS v FRANCE (Digest from 3D 2021) determine whether human rights are violated and to
Fact: A law was enacted to prohibit the wearing of veil. Questioned before balance interests.)
the European Court of Human Rights. Applicant was Muslim. 4. The ban was not expressly based on the religious connotation of
the clothing but on the concealment of the face.
Applicant’s arguments 5. The State was seeking to protect interaction between individuals
1. She would suffer harassment and discrimination for wearing the which it saw as fundamental to pluralism, tolerance, and
veil, and this would amount to degrading treatment. broadmindedness.
2. The law would violate her right to freedom of association. 6. In these circumstances, the Court has the duty of restraint and the
3. The ban interfered with her rights to freedom of thought, State was to be given a wide margin of appreciation.
conscience, and religion. 7. Held: France did not violate.
4. The law violated here right to respect her private life.
5. That the law did not take into account cultural differences or that Atty. Temprosa:
visual communication was not the only form of communication. Take note: Freedom of Religion
6. The law was not necessary in a democratic society since the aims 1. To manifest religion (Conduct) – Subject to limitations by the State
of the State could be met by less restrictive means than a blanket 2. To Believe – Absolute
ban.
Right to Private Life – in essence, it is autonomy. “Let me do what I need to
State’s arguments do.”
1. The ban aimed to protect public safety by making it possible to
identify persons, which prevented danger to person and property Liberty
and combatted identity fraud. Egalitarianism Secularism
2. The ban aimed to protect the rights and freedoms of others by Fraternity
ensuring “respect for the minimum set of values of an open and
democratic society.” My right as VERSUS living together
3. The face plays the most significant role in interaction between Individual tolerance
people, while concealing one’s face in public breaks social ties and
expresses a refusal of the principle of “living together.” POPULIST CHALLENGE TO HUMAN RIGHTS
4. The ban only concerned public places and did not affect the PHILIP ALSTON
applicant’s physical integrity or privacy. The populist agenda that has made such dramatic inroads recently is often
5. The Court has always allowed states a wide margin of appreciation avowedly nationalistic, xenophobic, misogynistic, and explicitly antagonistic
in the balancing of competing public and private interests or where to all or much of the human rights agenda. We know from President Trump
a private interest was in conflict with other Convention rights. himself because he has consistently advocated measures that would
abrogate civil liberties for American citizens, not to mention non-citizens, a
Court’s ruling great many of whom were traumatized by the very act of his election. But at
1. There are two legitimate aims on the part of the state: (a) the least his wrath won’t be directed only at minorities.
protection of public safety and (b) the protection of the rights and
freedom of others. First, we need to maintain perspective, despite the magnitude of the
2. The barrier raised against others by a veil concealing the face is challenges. Defending human rights has never been a consensus project. It
perceived by the State as breaching the right of others to live in a has almost always been the product of struggle. The modern human rights
space of socialisation which makes living together easier. regime emerged out of the ashes of the deepest authoritarian dysfunction
3. The State had a wide margin of appreciation when considering and the greatest conflagration the world had ever seen. It has duelled with
whether limitations on the right to manifest one’s belief were and been shaped by the eras of reluctant decolonization, the cold war,
“necessary.” neoliberalism, and now populism.
1. (Atty. Temprosa: Since the Gov’t is in charge of enforcing
human rights, the gov’t has the margin of appreciation to Second, this is the start of a long-term effort; it won’t be over in four years.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 4
Atty. Temprosa:
Third, the human rights movement needs to develop a spirit of introspection Change in the way we regard human rights. Human Rights is a discourse.
and openness. Historically, it has not responded well to criticism. As long as We see the rise of leaders who really do not believe in human rights.
the critics were mainly governments seeking to defend themselves or
despairing deconstructionist scholars, it was not difficult to continue with Human Rights should be an aspiration of the people. We are now seen as
business as usual. an enemy of the State.
Key Issues discussed: Once you are affected, believe me, you will cry human rights!
1. The populist threat to democracy. While this is a complex
phenomenon, much of the problem is linked to post-9/11 era One of the problems is people think human rights can solve the problem. Not
security concerns, some of which have blended seamlessly into an everything is about your rights.
actual or constructed fear and hatred of foreigners or minorities.
The resulting concerns have been exploited to justify huge trade- STATE RESPONSIBILITY, GENERAL PRINCIPLES, AND NATURAL LAW
offs. This is not only a strategy pursued by governments of many PHILIP ALSTON & RYAN GOODMAN
different stripes, but one that has been sold with remarkable Law of state responsibility for injuries to aliens - branch of international law
success to the broader public. that was among the predecessors to contemporary HR law
2. The second major issue is the role of civil society. It is now - Started with disputes between a citizen-national of X and the
fashionable among human rights proponents to decry the fact that government of Y (usually because an injury of X’s citizens was
the ‘space for civil society is shrinking’. But this phrase is all too caused by government officials of Y)
often a euphemism, when the reality is that the space has already - When a state took up the cause of one of its subjects (citizen-
closed in a great many countries. nationals) in a dispute originating between that subject and
3. The third issue is the linkage between inequality and exclusion. respondent state - the dispute entered the domain of IL.
Populism is driven in part by fear and resentment. To the extent - A state in reality is asserting its own rights (right to ensure, in the
that economic policies are thus critical, it is noteworthy that person of its subjects, respect for the rules of IL).
mainstream human rights advocacy addresses economic and social
rights issues in a tokenistic manner at best, and the issue of Atty. Temprosa: How does an individual goes against the person?
inequality almost not at all. See: Mavrommatis page 91: It is not the individual suing the state. It is the
4. The fourth issue that I want to highlight is the undermining of the state. Espousal.
international rule of law. This is a potentially huge area and I will Individual à wala rito! Individual has no recourse.
focus on just two aspects of it. The first is the systematic
undermining of the rules governing the international use of force. COMMENT ON THE CHATTIN CASE
Having stood by and let those different agencies operate around PHILIP ALSON & RYAN GOODMAN
the world carrying out targeted killings and other dubious acts, we Facts:
are not well placed to then turn around and say that some of the - Chattin (US citizen, conductor on a railroad in Mexico) was arrested
tactics used by countries we do not like are in violation of for embezzlement of fares together with other Americans and
international rules. The assiduous efforts of government legal Mexicans and he was convicted (arrested on similar charges).
advisers in countries like the United States, the United Kingdom, - Convicted and sentenced to 2 years imprisonment.
and Australia to rationalize these incursions are now reaping the - Appeal was rejected in 1991
rewards that they so richly deserve. It’s tragic. - Due to a political uprising, the inhabitants opened the doors of the
5. The fifth and final issue concerns the fragility of international jail so Chattin escaped to the US.
institutions. The International Criminal Court (ICC) is under - US argues that the arrest was illegal, that Chattin was mistreated
sustained attack with various African states announcing their while in prison, that his trial was unreasonably delayed, and that
planned withdrawals. there were irregularities in the trial. It claimed that Chattin suffered
injuries worth $50,000 in compensation.
- Members of the Claims Commission (1 from US, 1 from Mexico)
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 5
Dissenting (Macgregor):
Issues with their corresponding rulings (Van Vollenhoven): - Trial proper of 5 minutes – “there was really no trial and that Chattin
- Chattin claimed that he had not been duly informed of the charges. was convicted without being heard” -difference between Anglo-
o Chattin was generally aware of the details of the Saxon procedure and that of other countries.
investigation. - IL insures that a defendant be judged openly and that he be
- Dismissed the charge that witnesses against Chatting were not permitted to defend himself, but in no manner does it oblige
sworn. these things to be done in any fixed way as they are internal
o Mexican law does not require an oath (it is satisfied with a matters.
solemn promise to tell the truth “protesta”), nor do o Considering that Mexican criminal procedure consisted
international standards of civilization only of sumario (preliminary proceedings - investigation)
- Hearings in open court only lasted for 5 mins. and plenario (plenary proceedings - public hearing which
o The hearing was a pure formality in which written was only formal), there was really no trial and Chattin was
documents were confirmed and defense counsel said only convicted without being heard.
a word or two. - Test: implies damage, willful neglect, or palpable deviation from the
- Hearing was pure formality. The ponente Commissioner established customs becomes clearer by having in mind the
acknowledged that the whole of the proceedings discloses a damage which the claimant could have suffered.
most astonishing lack of seriousness on the part of the Court. - There are certain defects in procedure that can never cause
o E.g. no oral examination or cross-examination during the damage - not engender international liability.
investigations and hearings - improbable that the accused - There are other defects which make it impossible for a decision to
had a real opportunity to speak for themselves be just - international liability arises from the decision which is
o Even in case they were guilty, the Commission would iniquitous because of such defects.
render a bad service to the Government of Mexico if it - Acts which cause per se cause damage due to their rendering a
failed to place the stamp of its disapproval and even just decision:
indignation on a criminal procedure so far below o To prevent an accused from defending himself (refusing to
international standards of civilization as the present inform him as to the facts imputed or by denying him a
one. hearing and the use of remedies)
§ It is the minimum standard o To sentence him without evidence
- But, the record was still sufficient to warrant a conviction of Chattin. o To impose on him disproportionate or unusual penalties
o No bias against American citizens since 4 Mexicans were o To treat him cruelty and discrimination
also convicted. - Atty Temprosa: Individual claims are through espousal with the
o $5000 damages was awarded. State. Macgregor was saying there was no liability because it is a
- Standard: Whether the treatment of Chattin amounts to an outrage, domestic matter! At the end of the day, let’s see if the decision is
bad faith, to willful neglect of duty, or to an insufficiency of just or not; and if the decision really suffered damages.
governmental action recognizable by every unbiased man
Comments:
Concurring (Nielsen): - Opinions of the Commissioners underscore the methodological
- Preliminary examination does not serve as a foundation for the problems in developing a minimum international standard of
verdict of the judge who decided as to the guilt of the accused. criminal procedure out of such diverse materials
- Considering the peculiarly delicate character of an examination of - General Claims Convention – for decision in accordance with
judicial proceedings by an international tribunal and the practical principles of international law, justice, and equity.
difficulties inherent in such examination, Chattin should be entitled - See: Article 14 of the ICCPR dealing with criminal trials:
a small award based on the mistreatment during the investigation. o All persons shall be equal before the courts (fair and public
(From French Law) hearing)
o Have the right to be presumed innocent
o Entitled to the ff minimum guarantees:
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 6
§ Tried in his presence and to defend himself in • Ambiguity of “national minorities” which could mean
person or through legal assistance o A group in a state belonging in the ethnic sense to a
§ To examine, or have examined, the witnesses ‘nation’ that constituted a minority in that state; or
against him. o All minorities in a state who were ‘nationals’ (citizens) of
- Building blocks of the 21st century law of state responsibility. State that state
responsibility today encapsulates a broad set of secondary rules
that determine such matters as when a state is responsible for an MINORITY SCHOOLS IN ALBANIA
internationally wrongful act and the remedies for a state’s breach of Facts:
primary or substance rules of IL. Rough sketch of the secondary - Greek government proposed a draft Declaration which had
rules provides for the ff subjects: differences from the Minorities Treaties; Sec. 5 of which - nationals
1. Attribution – determine when conduct consisting of the who belong to the minorities will enjoy the same treatment and
acts or omissions of state officials or other groups can be security in law and in fact as nationals (in particular, equal right to
considered the responsibility of the state maintain religious and institutions or establishments); modified
2. Circumstances precluding wrongfulness – provide Constitution by having private schools of all categories closed.
defenses that preclude the wrongfulness of state conduct - Proposals for provisions going beyond the Minorities Treaties that
that is not in conformity with the state’s international were related to Christian worship and to education in the Greek
obligations. (force majeure, duress, self-defense) Language.
3. Consequences that follow when a state breaches an - Declaration was signed by Albania. Art 5 of the Declaration states:
international obligation – set forth remedies that a state o Albanian nationals who belong to racial linguistic or
must provide for violation of an international obligation. religious minorities will enjoy the same and security in law
(example: cessation, reparation, compensation, restitution, and in fact as other Albanian nationals. They shall have
etc.) equal right to maintain, manage, and control at their own
4. Countermeasures – regulate the permissible range of expense or to establish in the future, charitable, religious
responses to another state’s breach of international law. and social institutions, schools, and educational
- Note: State responsibility is highly focused on state-to-state establishments, with the right to use their own language
interactions. and to exercise their religion freely.
- In 1933, the Albanian National Assembly modified Arts. 206 & 207
COMMENT ON THE MINORITIES REGIME AFTER THE FIRST WORLD of the Constitution, which had provided that Albanian subjects may
WAR pp. 102-105 found private schools subject to government regulation.
PHILIP ALSTON AND RYAN GOODMAN - Complaints from minorities; Albania said that it only granted its
• Treaties and other special regimes to protect minorities have a long nationals belonging to minorities a right equal to that of nationals,
history in IL. argued that in case of doubt, interpret in the sense that is most
o Peace treaties sometimes included provisions on religious favorable to the sovereignty of the State
minorities. Ruling:
• New ambiguous concept: nation or nationality - Albanian Declaration can be understood as tantamount to a treaty.
o As distinct from the political state - Idea underlying the treaties for the protection of minorities is to
o Defined in cultural or historical terms (often as a ‘people’) secure for certain elements incorporated in a State, the population
• A goal in displacing the old empires with new states was to identify of which differs from them in a race, language or religion, the
the nation with the state - to give each nation its own state. possibility of living peaceably alongside that population and co-
• But, a nation defined in linguistic-religious terms would generally operation amicably with it, while at the same time preserving the
transcend national boundaries and be located in the territories of 2 characteristics which distinguish them from the majority, and
or more states. satisfying the ensuing special needs.
o E.g. A Greek-speaking Christian minority would be present - No true equality between a majority and minority if the latter were
in the reconfigured Muslim Albania. deprived of its own institutions and were compelled to renounce
that which constitutes the very essence of its being a minority.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 7
o Travaux Preparatoires – or preparatory work (recourse political, racial, or religious grounds in execution of or in
may be had to supplementary means, such as this. connection with any crime within the jurisdiction of the Tribunal,
o Difficulty is that treaties may be drafted in several whether or not in violation of the domestic law of the country
languages – unwise to resort to dictionaries in several where perpetrated.
languages; corresponding words may shed more light the o Leaders, organizers, instigators, and accomplices –
intended meaning, but sometimes, they generate greater responsible for all acts performed by any persons in
ambiguity. execution of such plan
o Reliance upon literal construction (strict interpretation) • Jus Ad bellum – set of criteria that are to be consulted before
engaging in war to order to determine whether entering into war is
NUREMBERG TRIBUNAL permissible.
• The trial at Nuremberg in 1945-1946 of major war criminals among • The core of the Charter lay the concept of international crimes for
the Axis Powers, dominantly Nazi party leaders and military which there would be INDIVIDUAL RESPONSIBILITY, a sharp
officials, gave the nascent human rights movement a powerful departure from the existing customary law or conventions which
impulse stressed the duty of states
• Nuremberg Trial applied the human rights provisions in the UN • There is also an attempt to challenge the principle of war as an
Charter: prosecution, conviction and punishment instrument of national policy by trying to control aggression
• They applied international law doctrines and concepts to impose
criminal punishment on individuals for their commission of any of The Laws relating to War Crimes and Crimes Against Humanity
the three types of crimes under the international law - Hague Convention of 1907
• Universal crime (developed customary international law) - Piracy - Geneva Convention of 1929
on the high seas → every state court sought to apply customary
international law definition of piracy Law of the Charter
• In addition to piracy, slave trading and genocide were added to the - Jurisdiction is defined in the London Agreement and Charter, for
list of individual crimes under international law which there shall be individual responsibility
• Jus Bello - imposed sanctions against combatants who committed - Charter is not an arbitrary exercise of power on the part of the
serious violations of the restrictive rules victorious nations
• London Agreement - International Military Tribunal for the trial of - Defendants:
war criminals o Maxim nullum crimen sine lege is not a limitation of
1. Crimes Against Peace - planning, preparation, initiation or sovereignty but a principle of justice
waging of a war of aggression or a war in violation of o Acting under the orders of Hitler, and therefore, cannot be
international treaties, agreements or assurances or held responsible for the acts committed by them in
participation in a common plan or conspiracy for the carrying out these orders
accomplishment of any of the foregoing - Opinion of the Tribunal: those who wage aggressive war are doing
2. War Crimes - namely, violations of the laws or customs of war. that which is equally illegal, and of much greater moment that a
Such violations shall include, but not be limited to, murder, ill- breach of one of the rules of the Hague Convention
treatment or deportation to slave labor or for any other purpose - Very essence of the Charter is that individuals have international
of civilian population of or in occupied territory, murder or ill duties which transcend the national obligations of obedience
treatment of prisoners of war or persons on the seas, killing of imposed by the individual state
hostages, plunder of public or private property, wanton o He who violates the laws of war cannot obtain immunity
destruction of cities, towns or villages, or devastation not while acting in pursuance of the authority of the state if the
justified by military necessity state in authorizing action moves outside its competence
3. Crimes Against Humanity - murder, extermination, under international law.
enslavement, deportation, and other inhumane acts against
civilian population before or during the war, or persecutions on
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 9
o If carrying out orders, it shall not free him from is doing wrong. On another point, when you were ordered these
responsibility, but may be considered in mitigation of wrongs, you knew it was wrong! When you’re following orders that
punishment. are morally ambiguous – basis is not law but justice. The
commentaries have acknowledged that it is really an ex post facto
War Crimes and Crimes Against Humanity law. Deciding on this ensures that the same thing will not happen
- Perpetrated in all the countries occupied by Germany, and on the again.
High Seas, and attended by every conceivable circumstance of - Atty Temprosa: The birth of Human Rights was really the
cruelty and horror; most barbaric way Nuremberg it was only solidified in the UDHR.
- Prisoners of war were ill-treated and tortured and murdered, in
complete disregard of the elementary dictates of humanity Order:
- Cities and villages and towns were destroyed a. UN Charter
- “Total War” b. UDHR
c. ICCPR
Murder and Ill-Treatment of Civilian Population d. ICESCR
- Declaratory of the existing laws of war as expressed by the Hague
Convention THE UNIVERSAL DECLARATION MODEL
- Systematic murder, where millions of people were destroyed JACK DONELLY (2003)
• Body of international human rights as providing largely authoritative
Slave Labor Policy standards for all states in the contemporary world
- Ill-treatment or deportation to slave labor – war crime • Prior to World War II, the term “human rights” was largely absent
- German occupation authorities did succeed in forcing many of the from international discourse.
inhabitants of the occupied territories to work for the German war • After the WWII, workers’ rights and minority rights were addressed
effort, and in deport at least 5Million persons to Germany by the Intl Labor Organization and the League of Nations.
• The creation of United Nations in 1945 brought about the belief that
Persecution of the Jews all human beings had an extensive set of equal and inalienable
- A record of consistent and systematic inhumanity on the greatest rights
scale; Jews were held up to public ridicule and contempt • Article 1 of UN charter (purpose) - to achieve international
- Complete exclusion of Jews from German life cooperation in solving international problems of an economic, social
- 4M were killed in the extermination institutions and cultural or humanitarian character and in promoting and
encouraging respect for human rights and for fundamental
Law Relating to War Crimes and Crimes Against Humanity freedoms for all without distinction as to race, sex, language, or
- Tribunal cannot make a general declaration that the acts before religion.
1939 were Crimes against Humanity within the meaning of the • The ICESCR and ICCPR give the force of treaty law to the UDHR.
Charter, but from the beginning of the war in 1939, War crimes The UDHR is the foundational document of international human
were committed on a vast scale rights law. It establishes the basic parameters of the meaning of
human rights in contemporary international relations
Ruling:
- 19/22 – found guilty of one or more counts of the indictment The Universal Declaration Model
- Imposed 12 death sentences • Human rights are rooted in a conception of human dignity
• Universal rights are the mechanism for implementing values such
Ex Post Facto Law
as nondiscrimination and an adequate standard of living
- We cannot use this principle to cause injustice.
- London Agreement – was after the WW2. There was no law written • All the rights in UDHR and Covenants with the exception of the right
down against these things. Justification: Hague Convention, even if of people to self-determination are rights of INDIVIDUALS not
there was no penalties. Atty Temprosa: Attacker must know that he corporate entities
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 10
- Other civil and political rights emphasize protection (right not to be - Argument: Several tensions among basic rights, “incoherent” à
tortured or be subject to cruel inhuman or degrading treatment or Each of the so-called human rights is the negation of other rights.
punishment - “Hodge podge of ideas”
- Research’s conclusion: led the author to increased admiration for
Atty Temprosa: Most accepted version now is – respect, protect, fulfill. the project of 1948, and for the men and women who dedicated
themselves to it.
Obligations of States under the UDHR:
1. Respect – negative obligation; means that States must refrain from What the Philosophers Knew:
interfering with or curtailing the enjoyment of human rights. - “Was it really possible for the fledging UN to produce a document
2. Protect – involves 3rd parties; requires States to protect individuals and acceptable to delegates from 58 countries?”
groups against human rights abuses; ex. Failed to investigate o To the Committee’s surprise – the lists of basic rights and
3. Fulfill/ Provide – Must take positive action to facilitate the enjoyment of values they received from their far-flung sources were
basic human rights; to provide an enabling environment; ex. Failed to place essentially similar
police where area has a high crime rate or is chaotic - Maritain: To enable a great task to be undertaken
- McKeon: To provide a framework within which divergent
Questions in class: when are human rights violations different from crimes? philosophical, religious, and even economic social and political
Or if there is a crime, is there necessarily a human rights violation? Different theories might be entertained and developed.
views on this. Some see HR violation as act or omissions committed by the - Problem: Different understandings of the meaning of rights reflect
State. But there has also been an expansion already. divergent concepts of man of society
Universal Declaration of Human Rights territory to which a person belongs, whether it be independent, trust, non-
- Although the UDHR is not legally binding, it has been widely self-governing or under any other limitation of sovereignty.
accepted as a universal agreement on fundamental human rights - This is “common article 2” which is the non-discrimination clause
norms that duty bearers are expected to respect, protect and fulfill; found in most of the HR treaties. Arts. 1 and 2 set forth the
- Most HR scholars now would go so far as to argue that the UDHR premises, purposes and principles to guide the interpretation of the
is jus cogens or at the very least has become customary rights found in Articles 3 to 27.
international law. - Arts. 1 and 2 set forth the premises, purposes and principles to
guide the interpretation of the rights found in Articles 3 to 27.
The UDHR; 4 pillars: Article 3. Everyone has the right to life, liberty and security of person.
a. The Personal Liberties (Arts. 3-11) Article 4. Freedom from Slavery
b. The Right of the Individual in relation to others and to various Article 5. Freedom from Torture and Degrading Treatment
groups (Arts. 12- 17) Article 6. Right to Recognition as a Person before the Law
c. The Spiritual, public and political liberties (Arts. 18-21) Article 7. Right to Equality before the Law
d. The Economic, Social and Cultural Rights (Arts 22-27) Article 8. Right to Remedy by Competent Tribunal
Article 9. Freedom from Arbitrary Arrest and Exile
Preamble Article 10. Right to Fair Public Hearing
- “Disregard and contempt for human rights have resulted in Article 11. Right to be Considered Innocent until Proven Guilty
barbarous acts which have outraged the conscience of mankind.” Article 12. Right to Privacy - Freedom from Interference with Privacy,
- Signals from the outset that this document is not just a Family, Home and Correspondence
“universalization” of the traditional 18th century “rights of man” BUT Article 13. Right to Free Movement in and out of the Country
part of a “new moment” in the history of human rights Article 14. Right to Asylum in other Countries from Persecution
- Human rights – inherent; dignity and rights – recognized, not Article 15. Right to a Nationality and the Freedom to Change It
conferred; human beings – born free and equal and endowed with Article 16. Right to Marriage and Family
reason and conscience; family – natural, fundamental Article 17. Right to Own Property
Article 18. Freedom of Belief and Religion
Proclamation Clause Article 19. Freedom of Opinion and Information
- Nature of the document; a common standard of achievement for all Article 20. Right of Peaceful Assembly and Association
peoples and nations Article 21. Right to Political Participation – Right to Participate in
- Acknowledges the hurdles ahead, stating that “a common Government and in Free Elections
understanding” of the Declaration’s rights and freedoms – the Article 22. Right to Social Security
greatest importance for the full realization of this pledge. Article 23. Right to Desirable Work and to Join Trade Unions
Article 24. Right to Rest and Leisure
Article 1. All human beings are born free and equal in dignity and rights. Article 25. Right to Adequate Living Standard
They are endowed with reason and conscience and should act towards one Article 26. Right to Education
another in a spirit of brotherhood. - Education shall be free, at least in the elementary and fundamental
- General principle is “Dignity.” stages. Elementary education shall be compulsory.
Article 27. Right to Participate in the Cultural Life of Community
- Speaks volumes about the spirit of Cassin – affirmation of faith in
Article 28. Right to a Social Order that Articulates this Document
human conscience and rationality
Article 29. Community Duties Essential to Free and Full Development
Article 2. Everyone is entitled to all the rights and freedoms set forth in this
Article 30. Freedom from State or Personal Interference in the above Rights
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, - Last three sections – pediment of the portico; address certain
property, birth or other status. Furthermore, no distinction shall be made on conditions that are pre-requisite to the realization of the rights
the basis of the political, jurisdictional or international status of the country or - Cassin: It shall be made clear that the responsibility for protecting
human rights belonged not only to the nation states, but to persons
and groups below and above the national level.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 13
- Highest degree of refinement - Each of the nine core treaties has a human rights bodies – for
supervising and monitoring the implementation of the relevant
Remembering the Declaration treaty. (12-18 members)
- Now-common misreading of the Declaration promotes - Members – individual expert capacity – important: because they
misunderstanding and facilitates misuse don’t represent their State; they are in an independent capacity,
- Universal human rights remain an elusive dream; ambiguity elected by States-parties; serve 4 year terms and half is elected
- Freedom and solidarity – sit uneasily with one another every 2 years.
- To encompass a degree of pluralism - Functions:
- One does not have to be motivated by any love affair with the o Reporting process
United Nations to appreciate the small core of principles to which o Individual complaints process
people of vastly different backgrounds can appeal
- Atty Temprosa: Challenge to human rights – differences in human Reporting Process
rights. But human rights are the rights that you will hang on to. In a - Compulsory process under each of the treaties
way, that is universal. UDHR is supposed to be universal. These - Each state party to a HR treaty must submit a periodic report to the
are inherent. relevant treaty body – detailing its implementation (success and
problems)
Two broad categories of rights: - Often, a counter-report will also be submitted by civil society from
a. Civil and Political the country.
b. Social, Cultural, and Economic Rights - Reports and information are then examined in a public dialogue
between state and the body.
CIVIL AND POLITICAL RIGHTS - Ends with a “concluding observations” (akin to a report card
detailing good aspects of the State’s implementation, aspects which
VIDEO: INTRODUCTION TO HUMAN RIGHTS / LESSON 18: UNIVERSAL are needing more improvement and recommendations
AND REGIONAL PROTECTION MECHANISMS
Individual Complaints Process
A. Universal Protection Mechanisms - Process where an individual can submit a compliant to a treaty
- United Nations Charter – key milestone in the development of body alleging violations of his or her rights, under the relevant
international human rights law treaty, that is, violations by a State
o It made clear that human rights even those of a State’s - Optional process; state must opt-in the processes so individuals
own citizens is a legitimate part of international law. cant submit
- 3 years later – developed the Universal Declaration of Human - Two stages:
Rights o Admissibility
o Developed 9 core human rights treaties o Merits
- Created an array of human rights institutions, which have been - Admissibility – treaty body must establish if a complaint is
developed to promote and protect human rights. admissible according to a particular admissibility criteria.
- Merit – to decided w/n a violations has in fact taken place
Focus today: UN Treaty Bodies and UN Human Rights Council o If yes, it can make recommendations
- Quasi-judicial wing of human rights institutions, and the inter-
governmental political wing of UN human rights institutions. Notes:
- Treaty bodies are not courts; they are quasijudicial bodies i.e. not
United Nations Treaty Bodies binding, but authoritative interpretations of the relevant treaties,
- Otherwise known as UN Human Rights Committees which are legally binding documents. Hence, if findings are always
ignored by a State, that is evidence of bad faith attitude
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 14
United Nations Human Rights Council - There is a European Court of Human Rights – hears cases about
- Established in 2006; replaced a similar body known as the alleged violations
Commission on Human Rights (1946-2006) - There were other treaties too – torture, etc.
- Made up of 47 state members; inter-governmental and political
body America
- Proceedings are inevitably politicized - Inter American system exists under the auspices of the
- Each member is elected by a secret ballot; serves a 3 year term; no Organization of American States
member must serve more than 2 consecutive three-yr terms - Key Instruments: American Declaration of the Human Rights and
- Possible to be suspended by a vote of the General Assembly Duties of Man and American Convention on Human Rights
o 2011, Libya was suspended - Inter-American Court of Human Rights
- Functions: - Inter-American Commission on Human Rights
o Meet 3x a year at the UN human rights HQ in Geneva, for
a total of 10 weeks Africa
o Regular Session Agenda - African human rights system, with an African Court of Human
o Makes decisions and resolutions under that agenda Rights
o Special 1-day sessions on particular human rights issues - African Commission on Human Rights
or on particular countries - African Charter on Human and People’s Rights
o Controls Universal Periodic Review or UPR
§ UPR – human rights record of every State Arab League
member of the UN, that is 193 countries, is - Arab Convention on Human Rights
examined by all of the other countries. - No human rights court, though
§ Takes place on a rolling basis
o Special Procedures – when HR Council decides to appoint Regional systems are in some ways stronger than the global system
a special expert, known as “Special Rapporteur” or known - Because they have regional courts which can make binding
as a Working Group – appoint such a body to investigate a international legal decisions
particular human rights issue
§ Independent, expert capacity, and they report to Asia – lagging behind, specifically South Asia and SEA, where there isn’t yet
the HR Council any advanced human rights machinery
- Criticism on UNHRC – disproportionate focus on certain States and
certain issue, compared to its lack of focus on other State and other VIDEO: INTERNATIONAL HUMAN RIGHTS LAW: PROSPECTS AND
issues; and less focus on States which deserve scrutiny CHALLENGES
o Again this body is a political body; sometimes states would Overarching questions:
vote in accordance with their political interests rather than - Why create regional HRs systems given the many UN treaties and
necessarily in the interest of what is good monitory mechanisms already in existence?
- States care what other States think about their human rights record; - What are the distinctive feature of the 3 major regional HRs
they care about what their peers think of them systems in Europe, America, Africa?
- Resolutions are not legally binding; but have great political value - What prospects for HRs systems in other regions and sub-regions?
and moral value
Why Create Regional HRs systems?
B. Regional Protection Mechanisms - To address distinctive regional HRs issues
Europe o E.g. African Charter recognizes the right of “peoples” to
- Oldest HR system is in Europe, under the auspices of the Council “freely dispose of their wealth and natural resources”
of Europe o Does not appear in the major covenants of civil and
- Key instrument: European Convention on Human Rights political rights or economic and social and cultural rights
nor in European and American
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 15
Ex: Art 21-22, permitting restrictions Antonio Cassese: A Plea for a Global Community Grounded in the Core
on a right “which are necessary in a of Human Rights
democratic society”
Bans “cruel, inhuman or ICCPR aimed at abolition of the Fundamental and Others values: Flexible and
degrading” punishment but that death penalty intransgressible contingent
does not refer to capital Must be common to all nations, Application of which may need to
punishment states, and individuals and may not take into account national
be derogated from conditions
Atty. Temprosa: Pro-person? Not really. In fact the State has 2 defenses – Those enshrined in that core of Deprived of nature of jus cogens,
derogation and limitation clauses. rules that constitute the still important, but can restrained in
international jus cogens their incidence and scope by
Categories of rights: individual states (as long as not
a. Protection of the individual’s physical integrity absolutely arbitrary)
§ provisions: on torture, arbitrary arrest, arbitrary
deprivation of life) “There should be a hierarchy in the body of rules of the international
b. Procedural fairness when government deprives an community and that some principles or norms”
individual of liberty - Came a clear understanding that jus cogens rules included norms
§ Provisions: on arrest, trial procedure and concerning human rights:
conditions of imprisonment o Banning genocide, slavery, racial discrimination, and
c. Equal protection norms forcible denial
§ Atty. Temprosa: “Suspect Grounds” - International bodies have suggested that other international rights
d. Freedoms of belief, speech, and association also enjoy the status of peremptory norms
§ Provisions: on advocacy, religion, press freedom, o Ban on torture, prohibition of slave trade, right to life, right
right to hold on assembly and form associations; of access to justice, habeas corpus, ban on refoulement,
and prohibition of collective penalties, fair trial
§ Atty. Temprosa: Usually, lumped together - Normative process – unfolds through judicial decisions,
“cognate rights”; assembly – it’s your expression pronouncements by collective bodies, and declarations of states
e. Right to political participation and other international legal subjects
- Categories can be seen on a spectrum:
o First, broad formal-verbal consensus – whatever the Peremptory norms – those which have universal scope and bearing; must
degree of ongoing violation of the relevant rights by many be obeyed by all nations, states, and individuals of the planets.
states
o Second, rights whose purposes, basic meanings, and Existence of two different values – can make allowance for the coexistence
even validity are formally disputed – ex: some religious of a core of indispensable and absolute values
belief or practices justify some gender discrimination
COMPARE: Theodor Meron, On a Hierarchy of International Human Rights
Issue to be discussed: the issue of equality or hierarchy, and implicitly the - Hierarchical – a warning sign that the international community will
notion of interdependence and indivisibility of all rights not accept any breach of those rights.
- Establishment of erga omnes principle (towards everyone)
Atty. Temprosa: Is it correct to say that rights are born by humans, and - Resort to hierarchical terms has not been matched by careful
duties are born by the States? Respect obligations lang ba ang ICCPR for consideration of their legal significance. No accepted system by
the State? – Important is: fulfillment; it’s not just on desisting but also on which higher rights can be identified and their content determined
providing. Prevalent thinking now is all rights are immediate. - Rights not accorded quality labels – relegated to inferior, second-
class status
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 18
- Some commentators are resorting increasingly to superior rights in the same reason, recognizing the immunity of a foreign State in
the hope that no state will dare to ignore them. accordance with customary international law does not amount to
o Through this, hierarchical terms contribute to the recognizing as lawful a situation created by the breach of a jus
unnecessary mystification of human rights, rather than cogens rule, or rendering aid and assistance in maintaining that
clarity situation, and so cannot contravene the principle in Article 41 of the
International Law Commission's Articles on State Responsibility."
Atty. Temprosa: What rights do you put premium on? In reality, it really is - To the extent that it is argued that no rule which is not of the status
hard. Is there really such a thing as no hierarchy? Examination of priorities. of jus cogens may be applied if to do so would hinder the
Is there a ranking of rights ba? enforcement of a jus cogens rule, even in the absence of a direct
conflict, the Court sees no basis for such a proposition .... [T]he
Comment on Germany v Italy before the ICJ (2012) rules which determine the scope and extent of jurisdiction and when
- ICJ issued a judgment on the relationship between jus cogens and that jurisdiction may be exercised do not derogate from those
state immunity substantive rules which possess jus cogens status, nor is there
- FACTS: Started from civil suits against state of Germany anything inherent in the concept of jus cogens which would require
o Involved the commission of war crimes by the German their modification or would displace their application.
military against Italian nationals during Germany’s
occupation of parts of Italy in the final years of WW2 Atty. Temprosa: Do you agree? Why did the ICJ rule this way?
- Italian Court of Cassation; HELD: Germany could be sued for
compensation in Italian courts on the ground that immunity does not ICCPR
apply when the alleged conduct constitutes an international crime Article 1. Right to Self Determination
such as deportation to slave labor and massacres of civilians. Article 2. General Obligation of States Parties to ICCPR
- ICJ; HELD: Decision of Court of Cassation was in violation of Italy’s Article 3. Equality of Rights between men and women
obligation to respect Germany’s immunity under customary Article 4. Derogation
international law. Sovereign immunity is firmly established in - required by the exigencies of the situation, provided that such
customary international law and grounded upon 'one of the measures are not inconsistent with their other obligations under
fundamental principles of the international legal order' - the international law and do not involve discrimination solely on the
sovereign equality of states. That principle had to be 'viewed ground of race, colour, sex, language, religion or social origin
together with the principle that each State possesses sovereignty - Paragraph 3 – notification requirement
over its own territory and that there flows from that sovereignty the - MIDTERMS ALERT: Paragraph 2 – No derogation from articles 6,
jurisdiction of the State over events and persons within that 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under
territory: this provision.
o XPN: May exist for torts committed in the territory of the Article 5. no restriction upon or derogation from any of the fundamental
forum state (i.e. acts committed by German agents inside human rights recognized or existing in any State Party to the present
Italy) Covenant pursuant to law, conventions, regulations or custom on the pretext
§ XPN TO XPN: Does not apply to acts committed that the present Covenant does not recognize such rights or that it
by foreign military forces in a state’s territory recognizes them to a lesser extent
during an armed conflict. Articles 6. Right to life
- Another issue: W/N the fact the alleged violations constituted jus - Death penalty – only for most serious crimes
cogens offences would supersede the immunity that applies to Article 7. Torture or to cruel, inhumane or degrading or punishment
foreign military forces in a state’s territory Article 8. Slavery and involuntary servitude
- ICJ; HELD: The rules of State immunity are procedural in character Article 9. Liberty and security of person
and are confined to determining whether or not the courts of one Article 10. Persons Deprived of Liberty
State may exercise jurisdiction in respect of another State. They do Article 11. Non-payment of contractual obligation
not bear upon the question whether or not the conduct in respect of Article 12. Liberty of movement
which the proceedings are brought was lawful or unlawful .... For
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 19
- rights shall not be subject to any restrictions except those which are 3. When deprivation of life constitutes the crime of genocide, it is understood
provided by law, are necessary to protect national security, public that nothing in this article shall authorize any State Party to the present
order (order public), public health or morals or the rights and Covenant to derogate in any way from any obligation assumed under the
freedoms of others, and are consistent with the other rights provisions of the Convention on the Prevention and Punishment of the Crime
recognized in the present Covenant. of Genocide.
Article 13. An alien lawfully in the territory of a State Party to the present 4. Anyone sentenced to death shall have the right to seek pardon or
Covenant may be expelled commutation of the sentence. Amnesty, pardon or commutation of the
- except where compelling reasons of national security otherwise sentence of death may be granted in all cases.
require, be allowed to submit the reasons against his expulsion and 5. Sentence of death shall not be imposed for crimes committed by persons
to have his case reviewed by, and be represented for the purpose below eighteen years of age and shall not be carried out on pregnant
before, the competent authority or a person or persons especially women.
designated by the competent authority. 6. Nothing in this article shall be invoked to delay or to prevent the abolition
Article 14. Equal before courts and tribunals of capital punishment by any State Party to the present Covenant.
Article 15. No one shall be held guilty of any criminal offence on account of
any act or omission which did not constitute a criminal offence, under General Remarks
national or international law, at the time when it was committed - Article 6 of ICCPR – Right to life of all human beings; supreme right
Article 16. Recognition everywhere from which no derogation is permitted, even in situations of armed
Article 17. Privacy conflict and other public emergencies
Article 18. Thought Conscience Religion o Effective protection of this right – prerequisite for the
Article 19. Right to hold opinions enjoyment of all other human rights and the content of
Article 20. Prohibition of Hate Speech (2) which can be informed by other human rights.
Article 21. Peaceful Assembly - Concerns the entitlement of individuals to be free from acts and
Article 22. Freedom of Association omissions that are intended or may be expected to cause their
Article 23. Family; right of men and women of marriageable age to marry unnatural or premature death, as well as to enjoy a life with dignity
Article 24. Child rights - Safeguards to ensure that in States parties that have not yet
Article 25. Right and opportunity to: take part in conduct of public affairs, abolished death penalty à DP not applied XPN: most serious
vote, access to public service crimes
Article 26. Non-discrimination o See: Par. 2,4, 5, and 6 of Art. 6
Article 27. Minority Rights o Art 6(1) – limits the ability of States parties to apply death
penalty
GENERAL COMMENT NO. 36 - Deprivation of Life – involves intentional or otherwise foreseeable
Note: This replaced General Comment No. 6 and preventable life-terminating harm or injury cause by an act or
omission
Article 6: Right to Life - States parties – MUST RESPECT right to life.
o Duty to refrain in engaging in conduct resulting in arbitrary
Article 6 deprivation of life
1. Every human being has the inherent right to life. This right shall be o extends to reasonably foreseeable threats and life-
protected by law. No one shall be arbitrarily deprived of his life. threatening situations that can result in loss of life
2. In countries which have not abolished the death penalty, sentence of o Although States parties may adopt measures designed to
death may be imposed only for the most serious crimes in accordance with regulate voluntary termination of pregnancy, those
the law in force at the time of the commission of the crime and not contrary measures must not result in violation of the right to life
to the provisions of the present Covenant and to the Convention on the of a pregnant woman or girl, or her other rights under the
Prevention and Punishment of the Crime of Genocide. This penalty can only Covenant
be carried out pursuant to a final judgement rendered by a competent court. o States parties must provide safe, legal and effective
access to abortion where the life and health of the
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 20
pregnant woman or girl is at risk, or where carrying a - The use of such weapons must be restricted to law enforcement
pregnancy to term would cause the pregnant woman or officials who have undergone appropriate training, and must be
girl substantial pain or suffering, most notably where the strictly regulated in accordance with applicable international
pregnancy is the result of rape or incest or where the standards
pregnancy is not viable. - State party must rigorously limit the powers afforded to private
§ Example: Not take measures such as actors and ensure that strict and effective measures of monitoring
criminalizing pregnancy of unmarried women or and control, as well as adequate training, are in place in order to
applying criminal sanctions to women and girls guarantee, inter alia, that the powers granted are not misused and
who undergo abortion or medical service do not lead to arbitrary deprivation of life
providers who assist them in doing so à leads to - The deprivation of life of individuals through acts or omissions that
resorting unsafe abortion violate provisions of the Covenant other than article 6 is, as a rule,
§ Should remove existing barriers caused as a arbitrary in nature
result of the exercise of conscientious
objection Duty to Protect Life
§ Access to reproductive health education and wide - Article 6(1) – “shall be protected by law”
range of affordable contraceptives o States parties must establish a legal framework to ensure
§ Prenatal and post-abortion health care for women the full enjoyment of the right to life by all individuals as
and girls in all circumstances and on a may be necessary to give effect to the right to life
confidential basis - The duty to protect by law the right to life requires that any
o States parties should take adequate measures to prevent substantive ground for deprivation of life must be prescribed by
suicides, especially among individuals in vulnerable law and must be defined with sufficient precision to avoid overly
situations. broad or arbitrary interpretation or application.
- States parties must enact a protective legal framework that includes
Prohibition against arbitrary deprivation of life effective criminal prohibitions on all manifestations of violence or
- Right to life is not absolute à but deprivation of life must not be incitement to violence that are likely to result in deprivation of life
arbitrary - States parties should also disband irregular armed groups, such as
o Exceptional measures should be established by law. private armies and vigilante groups, that are responsible for
- Right to life be protected by law + no one be arbitrarily deprived of deprivations of life and reduce the proliferation of potentially lethal
life à two requirements overlap weapons to unauthorized individuals
- Deprivation of life is, as a rule, arbitrary if it is inconsistent with - Must take appropriate measures to protect individuals against
international law or domestic law. A deprivation of life may, deprivation of life by other States, international organizations and
nevertheless, be authorized by domestic law and still be arbitrary. foreign corporations operating within their territory
o Arbitrariness – must be interpreted more broadly to - The duty to protect the right to life requires States parties to take
include elements of inappropriateness, injustice, lack of special measures of protection towards persons in vulnerable
predictability and due process of law, as well as elements situations whose lives have been placed at particular risk because
of reasonableness, necessity and proportionality. of specific threats or pre-existing patterns of violence, including
o The intentional taking of life by any means is permissible human rights defenders
only if it is strictly necessary in order to protect life from an - Persons with disabilities, including psychosocial or intellectual
imminent threat. disabilities, are also entitled to specific measures of protection so
- States parties are expected to take all necessary measures to as to ensure their effective enjoyment of the right to life on an equal
prevent arbitrary deprivation of life by their enforcement officials. basis with others.
o Put appropriate legislation controlling the use of lethal - States parties also have a heightened duty of care to take any
force by law, procedures, mandatory reporting, review and necessary measures to protect the lives of individuals deprived of
investigation their liberty by the State, since by arresting, detaining, imprisoning
or otherwise depriving individuals of their liberty, States parties
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 21
assume the responsibility to care for their lives and bodily integrity, grounds for believing that a real risk exists that their right to life
and they may not rely on lack of financial resources or other under article 6 of the Covenant would be violated
logistical problems to reduce this responsibility - The obligation not to extradite, deport or otherwise transfer,
- The duty to protect life also implies that States parties should take pursuant to article 6 of the Covenant, may be broader than the
appropriate measures to address the general conditions in society scope of the principle of non-refoulement under international
that may give rise to direct threats to life or prevent individuals from refugee law, since it may also require the protection of aliens not
enjoying their right to life with dignity entitled to refugee status
o Includes: traffic and industrial accidents, degradation of
environment, IPs’ land, territories, and resources, diseases Imposition of Death Penalty
§ To ensure access without delay by individuals to - States parties to the Covenant that have abolished the death
essential goods and services penalty, through amending their domestic laws, becoming parties to
- Develop, when necessary, contingency plans and disaster the Second Optional Protocol to the Covenant, aiming at the
management plans to increase preparedness and address natural abolition of the death penalty, or adopting another international
and manmade disasters instrument obligating them to abolish the death penalty, are barred
- An important element of the protection afforded to the right to from reintroducing it
life by the Covenant is the obligation on the States parties, where o May not transform into a capital offence any offence, upon
they know or should have known of potentially unlawful deprivations ratification, did not entrail the death penalty
of life, to investigate and, where appropriate, prosecute the o SPs that have abolished the death penalty cannot deport,
perpetrators of such incidents extradite or otherwise transfer persons to a country in
o Investigations should explore, inter alia, the legal which they are facing criminal charges that carry death
responsibility of superior officials with regard to violations penalty
of the right to life committed by their subordinates § XPN: credible and effective assurances against
o Must be independent, impartial, prompt, thorough, the imposition of the death penalty
effective, credible, and transparent - Most serious crimes – appertain only to crimes of extreme gravity
o States parties need to take, among other things, involving intentional killing
appropriate measures to establish the truth relating to the o a limited degree of involvement or of complicity in the
events leading to the deprivation of life, including the commission of even the most serious crimes, such as
reasons and legal basis for targeting certain individuals providing the physical means for the commission of
and the procedures employed by State forces before, murder, cannot justify the imposition of the death penalty
during and after the time at which the deprivation occurred - In all cases involving the application of the death penalty, the
o also disclose relevant details about the investigation to the personal circumstances of the offender and the particular
victim’s next of kin, allow the next of kin to present new circumstances of the offence, including its specific attenuating
evidence, afford the next of kin legal standing in the elements, must be considered by the sentencing court
investigation, and make public information about the - States parties must refrain from imposing the death penalty on
investigative steps taken and the findings, conclusions and individuals who face special barriers in defending themselves on an
recommendations emanating from the investigation, equal basis with others, such as persons whose serious
subject to absolutely necessary redactions justified by a psychosocial or intellectual disabilities impede their effective
compelling need to protect the public interest or the defence, and on persons who have limited moral culpability
privacy and other legal rights
o Loss of life in custody, in unnatural circumstances – Relationship of Art. 6 with other articles of the Covenant and other legal
presumption of arbitrary deprivation of life regimes
- The duty to respect and ensure the right to life requires States Article 6 also reinforces the obligations of States parties under the Covenant
parties to refrain from deporting, extraditing or otherwise and the Optional Protocol to protect individuals against reprisals for
transferring individuals to countries in which there are substantial promoting and striving to protect and realize human rights, including through
cooperation or communication with the Committee.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 22
Article 6 The Committee shall include in its annual report under article 45 of
FIRST OPTIONAL PROTOCOL TO THE ICCPR the Covenant a summary of its activities under the present Protocol.
Entry into force: March 23, 1976
Article 7 Pending the achievement of the objectives of resolution 1514(XV)
Article 1 A State Party to the Covenant that becomes a Party to the present adopted by the General Assembly of the United Nations on 14 December
Protocol recognizes the competence of the Committee to receive and 1960 concerning the Declaration on the Granting of Independence to
consider communications from individuals subject to its jurisdiction who Colonial Countries and Peoples, the provisions of the present Protocol shall
claim to be victims of a violation by that State Party of any of the rights set in no way limit the right of petition granted to these peoples by the Charter of
forth in the Covenant. No communication shall be received by the Committee the United Nations and other international conventions and instruments
if it concerns a State Party to the Covenant which is not a Party to the under the United Nations and its specialized agencies.
present Protocol.
Article 8
Article 2 Subject to the provisions of article 1, individuals who claim that 1. The present Protocol is open for signature by any State which has signed
any of their rights enumerated in the Covenant have been violated and who the Covenant.
have exhausted all available domestic remedies may submit a written 2. The present Protocol is subject to ratification by any State which has
communication to the Committee for consideration. ratified or acceded to the Covenant. Instruments of ratification shall be
deposited with the Secretary-General of the United Nations.
Article 3 The Committee shall consider inadmissible any communication 3. The present Protocol shall be open to accession by any State which has
under the present Protocol which is anonymous, or which it considers to be ratified or acceded to the Covenant.
an abuse of the right of submission of such communications or to be . Accession shall be effected by the deposit of an instrument of accession
incompatible with the provisions of the Covenant. with the Secretary-General of the United Nations.
5. The Secretary-General of the United Nations shall inform all States which
Article 4 1. Subject to the provisions of article 3, the Committee shall bring have signed the present Protocol or acceded to it of the deposit of each
any communications submitted to it under the present Protocol to the instrument of ratification or accession.
attention of the State Party to the present Protocol alleged to be violating any
provision of the Covenant. Article 9
1. Subject to the entry into force of the Covenant, the present Protocol shall
2. Within six months, the receiving State shall submit to the Committee enter into force three months after the date of the deposit with the Secretary-
written explanations or statements clarifying the matter and the remedy, if General of the United Nations of the tenth instrument of ratification or
any, that may have been taken by that State. instrument of accession.
2. For each State ratifying the present Protocol or acceding to it after the
Article 5 1. The Committee shall consider communications received under deposit of the tenth instrument of ratification or instrument of accession, the
the present Protocol in the light of all written information made available to it present Protocol shall enter into force three months after the date of the
by the individual and by the State Party concerned. deposit of its own instrument of ratification or instrument of accession.
2. The Committee shall not consider any communication from an individual
unless it has ascertained that: Article 10 The provisions of the present Protocol shall extend to all parts of
(a) The same matter is not being examined under another procedure of federal States without any limitations or exceptions.
international investigation or settlement; (b) The individual has exhausted all
available domestic remedies. This shall not be the rule where the application Article 11
of the remedies is unreasonably prolonged. 1. Any State Party to the present Protocol may propose an amendment and
3. The Committee shall hold closed meetings when examining file it with the Secretary-General of the United Nations. The Secretary-
communications under the present Protocol. General shall thereupon communicate any proposed amendments to the
4. The Committee shall forward its views to the State Party concerned and to States Parties to the present Protocol with a request that they notify him
the individual. whether they favour a conference of States Parties for the purpose of
considering and voting upon the proposal. In the event that at least one third
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 23
SECOND OPTIONAL PROTOCOL TO THE ICCPR Article 4 With respect to the States Parties to the Covenant that have made
Adopted: December 15, 1989 a declaration under article 41, the competence of the Human Rights
Committee to receive and consider communications when a State Party
The States Parties to the present Protocol, claims that another State Party is not fulfilling its obligations shall extend to
Believing that abolition of the death penalty contributes to enhancement of the provisions of the present Protocol, unless the State Party concerned has
human dignity and progressive development of human rights, made a statement to the contrary at the moment of ratification or accession.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 24
- September 17 – his counsel made a request to the prosecutor that o Insufficient prosecution evidence to convict
he be given a Prel. Investigation and that he be granted 20 days to o Inappropriate standard of proof required for presenting
file a defense affidavit. But was denied as he was entitled only to an alibi evidence
inquest. - February 3, 2004 – SC found Larranaga guilty of the complex crime
- September 19 – his counsel appealed to the CA to prevent the filing of kidnapping and serious illegal detention with homicide and rape.
of a criminal information. But too late, criminal charges had already He was sentenced to death by lethal injection
been filed with the RTC on Sept 17 - March 2, 2004 – MR was filed
- September 25 – another petition was filed in the CA against his - July 21, 2005 – Rejected MR
arrest but was dismissed Upon appeal to SC, and despite its
pendency, he was brought before a judge on Oct 14. He did not Complaint of Larranaga
enter a plea and the judge entered a plea of not guilty to two counts Alleged the following:
of kidnapping with serious illegal detention. SC then temporarily a. Violation of Art. 6 of the Covenant because the State party
restrained this judge from proceeding. SC held that he is entitled to introduced death penalty after abolishing it. (1987 Consti through
a proper preliminary investigation. Art 3(19)(1)); he recalled that SC held that new laws authorizing
- August 12, 1998 – Trial began. capital punishment were unconstitutional
o First witness: Davidson Valiente Rusia (promised immunity b. Violation of Art. 5 on the ground that SC sentenced him under Art.
if he tells the truth). However, on the second day, the 267 of RPC and did not take into account possible mitigating
cross-examination was cut short à he admitted that he circumstances
lied about his previous convictions and claimed that he felt c. Violation of Art 14 par. 2 and that the evaluation of facts and
dizzy. Alleged also that he had been bribed. evidence were manifestly arbitrary and amounted to denial of
- From August 31 to September 3, 1998 – there was a series of justice
change in counsel. i. Insufficient evidence of homicide or rape
o His counsel was put to jail for contempt of court and trial ii. Prosecution was based on the testimony of 1 witness
judge ordered a lawyer from PAO to represent despite his iii. Both the trial court and SC were incorrect in shifting the
insistence on an adjournment to seek his own as he had burden of proof on to him to prove that it was “physically
the means to do so impossible” for him to have been at the scene of the crime
- From September 3 – 18, 1998 – 25 prosecution witnesses testified. d. Violation of Art. 14 par. 1 and 2 because both the trial court and SC
- From October 1 – 12, 1998 – author’s counsel cross-examined were subject to outside pressure from powerful social groups, esp
again the main prosecution witness. He was discharged as a Fil-Chi community
witness and was granted immunity from prosecution. i. Aunt of victims – secretary of Pres. Estrada
- November 23, 1998 – 14 witnesses testified for Larranaga and ii. Subject to many negative media reports
confirmed that he was in QC e. Violation of Art. 14 because the convictions and sentences imposed
o Series of dates in January 1999, judge refused to hear were premised on serious procedural irregularities
evidence as it was “irrelevant immaterial” i. Prevented from testifying at his own trial
o Various dates in February 1999, Larranaga was not ii. No equality to call and examine witnesses. Trial judge
allowed to testify either refused to hear several defence witnesses and effectively
- May 5, 1999 – Special Henious Crimes Court found Larranaga withheld evidence
guilty of the kidnapping and serious illegal detention iii. Right to cross-examine prosecution witnesses was unfairly
- May 10, 2000 – appealed to the SC. Issues were: restricted. Trial judge was obstructive when author’s
o Violations of rights of due process (including the right to counsel sought to cross-examine the main prosecution
choose counsel, right to effective counsel, refusal to hear witness
testimony, refusal to allow the author to call defense iv. His counsel did not have sufficient time to prepare the
witness, denial of an impartial trial defense and that he could not choose an effective
o Improper handling of the main prosecution witness’s counsel.
evidence v. He was not tried by an independent and impartial tribunal
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 26
f. Violations of Art. 6(2) and Art. 14 because the SC failed to correct conspiracy or unit of purpose and intention in the commission of the
any of the irregularities of the proceedings crime' Therefore, the conspirators are held liable for acts committed
i. Harboured preconceptions about the trial by each of them and the degree of actual participation of each is
ii. 2 judges of CA had evaluated the preliminary charged immaterial'
against him in 1997 i. Here, SC found that conspiracy has been established,
iii. Another judge whose wife was the great-aunt of the thus liable
victims also sat on the SC ii. Noted also that Larranaga was already 20 when he
iv. Violated principle of ex officio reformation in peius and his committed the offences
right to appeal iii. Relative youth – not a mitigating circumstance
v. Right to a public hearing was violated and his right to be c. Death penalty was imposed by virtue of Art 267 of RPC; even then,
present during the heard. SC did not hear oral testimony imposition of such took into consideration the circumstances of both
vi. Violated right to appeal to a higher tribunal according to the offender and the offence.
law i. Recalls that one of the co-defendant who is a minor was
g. Violations of articles 9(3), 14(3)(c), and 14(5) because there were not sentenced to death
undue delays in the proceedings. The delay between the charge ii. “mandatory” is not synonymous to arbitrary
and the SC decision was 6 years and 5 months d. The SC judgment demonstrates that there was clear evidence of
h. Violation of art 6(1) because the imposition of the death penalty on homicide and rape; criminal appeal opens up the entire case for
him at the end of a process in which his fair trial guarantees were review and that to have oral arguments before the SC is not a
violated – arbitrary deprivation of life matter of right
i. Violation of art 7 – subject to a prolonged period of detention on a e. Evidence from an accomplice – State party recalls that trial judge
death row. chose to give credence as his testimony was corroborated by
i. Trauma of other violations; fear and uncertainty generated disinterested witnesses
by a death sentence f. It is the duty of the defence to prove the existence of an alibi, or
j. Violation of article 9 – he has not been deprived of his liberty on justifying or exemption circumstances
such grounds and in accordance with such procedures as are g. As to outside pressure – notes that decision of SC was rendered by
established by law. Guilt was not proven beyond reasonable doubt. the Court as a whole, not by specific justices
i. Also, Erap was ousted from power in January 2001 and
State party’s submission on admissibility and merits author was sentenced to death 3 yrs later
a. Death penalty was never abolished by the 1987 Constitution – h. State party argues that Larranaga was not prevented from testifying
“unless, for compelling reasons involving heinous crimes, the (prosecution and defence agreed to dispense with his testimony)
Congress hereafter provides for it” i. Domestic courts, subject to the agreement of a witness
i. Never meant to suppress the right of the State to impose even if that person was not placed in the witness stand,
capital punishment and that this is especially true if testimony would be merely
ii. Refers to a decision of the SC which confirmed that there corroborative (as in this case)
is nothing which expressly abolishes the death penalty – i. Responsibility of the trial judge to ensure that there is an orderly
purely a matter of domestic discretion – subject to the and expeditious presentation of witnesses and that time was not
limitation of “most serious crimes” wasted
iii. Not a party to the Second Optional Protocol to the j. Refers to the judgment of the SC of Feb 2 2004 which the Court
Covenant denied that the defendants had not been given sufficient
iv. Accordingly, art 6 should be interpreted to mean that for opportunity to cross-examine – right and duty of the trial court to
countries which have abolished the death penalty, it control the cross-examination of witnesses, for conserving time and
cannot be reinstated, and for countries which continue to protecting the witnesses.
impose, not compulsory but highly encouraged k. Trial court can appoint a counsel whom it considers competent to
b. Revised Penal Code provides that a person may be convicted for enable the trial to proceed
the criminal act of another where, between them, there has been l. No basis for claim of partiality and bias on the part of the trial judge
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 27
m. Larranaga was given ample opportunity to present his arguments Committee refers to its General Comment No. 13 on article 14, where it
and observations before the SC. SC did not consider it necessary stated that: ‘it is, therefore, a duty for all public authorities to refrain from pre-
to hear the parties orally judging the outcome of a trial’. In the present case, the Committee considers
n. Initial delay was due to the fact that Larranaga sought to annul the that the authorities failed to exercise the restraint that article 34, paragraph
charges filed against him. He alone presented 14 witnesses and 5, requires of them, especially taking into account the repeated intimations to
employed strategic machinations to delay proceedings. the trial judge that the author should be sentenced to death while the trial
proceeded'
Larranaga’s comments
a. Takes note of the recent decision to commute all death sentences Re: Right to Counsel –
to life imprisonment (April 16 2006), but he remains on death row The Committee considers that in a capital case, when counsel for the
and has received no documents from the President’s Office defendant requests an adjournment because he was not given enough time
b. Death penalty was abolished and subsequently reintroduced in PH to acquaint himself with the case, the court must ensure that the defendant is
c. Imposition constitutes violation of Art 6 given an opportunity to prepare his defence… Committee reiterates that it is
d. No direct evidence of conspiracy, elements were not found. axiomatic that legal representation must be made available in capital cases.
Reiterates irregularities in his trial
e. Principle of ex officio reformation in peius was violated Re: Right to cross-examine –
f. Delays were caused by the lack of judicial discipline, including long The Committee reaffirms that it is for the national courts to evaluate facts
and unnecessary annual leave by the presiding judge and evidence in a particular case. However, bearing in mind the seriousness
of the charges involved in the present case, the Committee considers that
Consideration of the Merits the trial court’s denial to hear the remaining defence witnesses without any
Re: Conviction of capital punishment – further justification other than that the evidence was “irrelevant and
Committee recalls its jurisprudence that the automatic and mandatory immaterial” and the time constraints, while, at the same time, the number of
imposition of the death penalty constitutes an arbitrary deprivation of life, in witnesses for the prosecution was not similarly restricted, does not meet the
Violation of article 6, paragraph 1, of the Covenant, in circumstances where requirements of article 34' In the above circumstances, the Committee
the death penalty is imposed without any possibility of taking into account concludes that there was a Violation of article 34, paragraph 3(3), of the
the defendant’s personal circumstances or the circumstances of the Covenant.
particular offence. It follows that his rights under article 6, paragraph 3, of the
Covenant were violated. At the same time, the Committee notes that the Re: Supreme Court –
State party has adopted Republic Act No. 9346 prohibiting the imposition of The Supreme Court, which did not find it necessary to hear the parties orally,
death penalty in the Philippines. sentenced the author to death. The Committee considers that, as the
Supreme Court in the present case, according to national law, had to
Re: Violation of the presumption of innocence – examine the case as to the facts and the law, and in particular had to made
The Committee is cognizant that some States require that a defence of alibi a full assessment of the question of the author’s guilt or innocence, it should
must be raised by the defendant, and that a certain standard of proof must have used its power to conduct hearings, as provided under national law, to
be met before the defence is cognizable' However, here, the trial judge did ensure that the proceedings complied with the requirements of a fair trial as
not show sufficient latitude in permitting the defendant to prove this defence, laid down in article 14, paragraph 1.
and in particular, excluded several witnesses offered in the alibi defence. A
criminal court may convict a person only when there is no reasonable doubt Re: delays and appeals –
of his or her guilt, and it is for the prosecution to dispel any such doubt. In In any case, the fact that the author appealed cannot be held against him'
the present case, the trial judge put a number of leading questions to the Article 14, paragraph 3(c), requires that all accused shall be entitled to be
prosecution which tend to justify the conclusion that the author was not tried without undue delay, and the requirement applies equally to the right of
presumed innocent until proven guilty. review of conviction and sentence guaranteed by article 14, paragraph 5.
Concerning the public statements made by senior officials portraying the Bearing in mind that, by becoming a party to the Optional Protocol, the State
author as guilty, all of which were given very extensive media coverage, the party has recognized the competence of the Committee to determine
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 28
whether there has been a Violation of the Covenant or not and that, pursuant For ICESCR, “progressively” à BUT immediate (see cases, BUT
to article 5 of the Covenant, that State party has undertaken to ensure all QUALIFIED) cause you have to TAKE STEPS now to progress. à minimum
individuals within its territory or subject to its jurisdiction the rights recognized core obligations
in the Covenant and to provide an effective and enforceable remedy in case
a Violation has been established. PART II
1. The States Parties to the present Covenant recognize the right of development of the human personality and the sense of its dignity, and shall
everyone to an adequate standard of living for himself and his family, strengthen the respect for human rights and fundamental freedoms. They
including adequate food, clothing and housing, and to the continuous further agree that education shall enable all persons to participate effectively
improvement of living conditions. The States Parties will take appropriate in a free society, promote understanding, tolerance and friendship among all
steps to ensure the realization of this right, recognizing to this effect the nations and all racial, ethnic or religious groups, and further the activities of
essential importance of international co-operation based on free consent. the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant, recognizing the fundamental 2. The States Parties to the present Covenant recognize that, with a view to
right of everyone to be free from hunger, shall take, individually and through achieving the full realization of this right:
international co-operation, the measures, including specific programmes, (a) Primary education shall be compulsory and available free to all;
which are needed: (b) Secondary education in its different forms, including technical
(a) To improve methods of production, conservation and distribution and vocational secondary education, shall be made generally
of food by making full use of technical and scientific knowledge, by available and accessible to all by every appropriate means, and in
disseminating knowledge of the principles of nutrition and by particular by the progressive introduction of free education;
developing or reforming agrarian systems in such a way as to (c) Higher education shall be made equally accessible to all, on the
achieve the most efficient development and utilization of natural basis of capacity, by every appropriate means, and in particular by
resources; the progressive introduction of free education;
(b) Taking into account the problems of both food-importing and (d) Fundamental education shall be encouraged or intensified as far
food-exporting countries, to ensure an equitable distribution of as possible for those persons who have not received or completed
world food supplies in relation to need. the whole period of their primary education;
(e) The development of a system of schools at all levels shall be
Atty. Temprosa: Again, it’s taking measures only actively pursued, an adequate fellowship system shall be
- Can you sue? If there are NO measures – then yes. But if there are established, and the material conditions of teaching staff shall be
measures, it depends. continuously improved.
- If you have already taken steps à you have to progressively 3. The States Parties to the present Covenant undertake to have respect for
realize. You cannot REGRESS. the liberty of parents and, when applicable, legal guardians to choose for
their children schools, other than those established by the public authorities,
Article 12 which conform to such minimum educational standards as may be laid down
1. The States Parties to the present Covenant recognize the right of or approved by the State and to ensure the religious and moral education of
everyone to the enjoyment of the highest attainable standard of physical and their children in conformity with their own convictions.
mental health. 4. No part of this article shall be construed so as to interfere with the liberty
2. The steps to be taken by the States Parties to the present Covenant to of individuals and bodies to establish and direct educational institutions,
achieve the full realization of this right shall include those necessary for: subject always to the observance of the principles set forth in paragraph I of
(a) The provision for the reduction of the stillbirth-rate and of infant this article and to the requirement that the education given in such
mortality and for the healthy development of the child; institutions shall conform to such minimum standards as may be laid down
(b) The improvement of all aspects of environmental and industrial by the State.
hygiene;
(c) The prevention, treatment and control of epidemic, endemic, Article 14
occupational and other diseases; Each State Party to the present Covenant which, at the time of becoming a
(d) The creation of conditions which would assure to all medical Party, has not been able to secure in its metropolitan territory or other
service and medical attention in the event of sickness. territories under its jurisdiction compulsory primary education, free of charge,
undertakes, within two years, to work out and adopt a detailed plan of action
Article 13 for the progressive implementation, within a reasonable number of years, to
1. The States Parties to the present Covenant recognize the right of be fixed in the plan, of the principle of compulsory education free of charge
everyone to education. They agree that education shall be directed to the full for all.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 31
The principal obligation of result reflected in article 2 (1) is to take steps available from the international community through international
"with a view to achieving progressively the full realization of the rights cooperation and assistance.
recognized" in the Covenant. - It is particularly incumbent upon those States which are in a
- “progressive realization” - a recognition of the fact that full position to assist others in this regard.
realization of all economic, social and cultural rights will generally
not be able to be achieved in a short period of time. Atty. Temprosa: Take note of 2 obligations:
- Two views: a. Progressive realization
o necessary flexibility device, reflecting the realities of the b. Minimum core obligation
real world and the difficulties involved for any country in
ensuring full realization of economic, social and cultural LIMBURG PRINCIPLES ON THE IMPLEMENTATION OF THE ICESCR
rights.
o phrase must be read in the light of the overall objective, Nature and Scope of States Parties’ Obligations
indeed the raison d'être, of the Covenant which is to - Subject: economic, social, and cultural rights
establish clear obligations for States parties in respect of - ICESCR – entered into force in 1976, serve to elaborate the UDHR
the full realization of the rights in question. It thus imposes - Should be interpreted in good faith, taking into account the object
an obligation to move as expeditiously and effectively as and purpose, the ordinary meaning, the Preparatory work and the
possible towards that goal. relevant practice
- The achievement of economic, social and cultural rights may be
A minimum core obligation to ensure the satisfaction of, at the very realized in a variety of political settings. There is no single road
least, minimum essential levels of each of the rights is incumbent upon to their full realization. Successes and failures have been registered
every State party in both market and non-market economies, in both centralized and
- Thus, for example, a State party in which any significant number of decentralized political structures.
individuals is deprived of essential foodstuffs, of essential primary - Must at all times act in good faith
health care, of basic shelter and housing, or of the most basic forms - Although the full realization of the rights recognized in the Covenant
of education is, prima facie, failing to discharge its obligations under is to be attained progressively, the application of some rights can
the Covenant be made justiciable immediately while other rights can become
- it must be noted that any assessment as to whether a State has justiciable over time.
discharged its minimum core obligation must also take account of - Concerted national effort to invoke full participation of all sectors
resource constraints applying within the country concerned of society is indispensable to achieving progress in realizing
- The Committee wishes to emphasize, however, that even where economic, social, and cultural rights
the available resources are demonstrably inadequate, the obligation - Committee – to analyze the causes and factors impeding the
remains for a State party to strive to ensure the widest possible realization
enjoyment of the relevant rights under the prevailing circumstances. - Trends in economic relations – taken into account in assessing the
- If the Covenant were to be read in such a way as not to establish efforts
such a minimum core obligation, it would be largely deprived of its
raison d'être. Interpretative Principles specifically relating to Part 2 of the Covenant
Article 2 (1): "to take steps ... by all appropriate means, including particularly
A final element of article 2 (1), to which attention must be drawn, is that the the adoption of legislation"
undertaking given by all States parties is "to take steps, individually and - States Parties shall use all appropriate means, including
through international assistance and cooperation, especially economic legislative, administrative, judicial, economic, social and educational
and technical ...". measures, consistent with the nature of the rights in order to fulfil
- The Committee notes that the phrase "to the maximum of its their obligations under the Covenant. Legislative measures alone
available resources" was intended by the drafters of the Covenant are not sufficient to fulfil the obligations of the Covenant… but
to refer to both the resources existing within a State and those where there is violation by an existing legislation, legislative action
is taken
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 33
- Where appropriate – judicial remedies not be continued after their intended objectives have been
achieved.
"to achieve progressively the full realization of the rights"
- Under no circumstances shall this be interpreted as implying for Article 2(3): Non-nationals in developing countries
States the right to defer indefinitely efforts to ensure full realization. - GR: Covenant applies equally to nationals and non-nationals
On the contrary all States parties have the obligation to begin - Purpose: end the domination of certain economic groups of non-
immediately to take steps to fulfil their obligations under the nationals during colonial times
Covenant. - This narrow interpretation of article 2 (3) refers in particular to the
- The obligation of progressive achievement exists independently of notion of economic rights and to the notion of developing countries.
the increase in resources; it requires effective use of resources o The latter notion refers to those countries which have
available. gained independence and which fall within the appropriate
United Nations classifications of developing countries.
"to the maximum of its available resources"
- For minimum subsistence rights for all Article 3: Equal rights for men and women
- "Its available resources" refers to both the resources within a - See: CEDAW
State and those available from the international community through
international co-operation and assistance. Article 4: Limitations
intended to be protective of the rights of individuals rather than permissive of
"individually and through international assistance and co-operation, the imposition of limitations by the State.
especially economic and technical"
- Directed towards the establishment of a social and international “determined by law”
order in which rights and freedoms set forth can be fully realized - not be arbitrary or unreasonable or discriminatory
- Irrespective of differences, States shall cooperate with one another - shall be clear and accessible to everyone.
- Based on the sovereign equality of States and be aimed at the - Adequate safeguards and effective remedies shall be provided by
realization of the rights law against illegal or abusive imposition on application of limitations
on economic, social and cultural rights.
Article 2(2): Non-discrimination
- Grounds à not exhaustive “promoting the general welfare”
- Upon becoming a party to the Covenant States shall eliminate de - To mean furthering the well-being of the people as a whole
jure discrimination by abolishing without delay any discriminatory
laws, regulations and practices (including acts of omission as well “in a democratic society”
as commission) affecting the enjoyment of economic, social and - Interpreted as imposing a further restriction on the application of
cultural rights. limitations
- De facto discrimination occurring as a result of the unequal - The burden is upon a State imposing limitations to demonstrate that
enjoyment of economic, social and cultural rights, on account of a the limitations do not impair the democratic functioning of the
lack of resources or otherwise, should be brought to an end as society.
speedily as possible.
- Special measures taken for the sole purpose of securing adequate “compatible with the nature of these rights”
advancement of certain groups or individuals requiring such - Requires that a limitation shall not be interpreted or applied so as to
protection as may be necessary in order to ensure to such groups jeopardize the essence of the right concerned
or individuals equal enjoyment of economic, social and cultural
rights shall not be deemed discrimination, provided, however, that Article 5
such measures do not, as a consequence, lead to the maintenance - Article 5 (1) underlines the fact that there is no general, implied or
of separate rights for different groups and that such measures shall residual right for a State to impose limitations beyond those which
are specifically provided for in the law.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 34
- intended to ensure that nothing in the Covenant shall be interpreted - affords to a State party a margin of discretion in selecting the
as impairing the inherent right of all peoples to enjoy and utilize fully means for carrying out its objects, and that factors beyond its
and freely their natural wealth and resources. reasonable control may adversely affect its capacity to implement
- purpose of article 5 (2) is to ensure that no provision in the particular rights.
Covenant shall be interpreted to prejudice the provisions of
domestic law or any bilateral or multilateral treaties, conventions or When in violation:
agreements which are already in force, or may come into force, - it fails to take a step which it is required to take by the Covenant;
under which more favourable treatment would be accorded to the - it fails to remove promptly obstacles which it is under a duty to
persons protected. remove to permit the immediate fulfilment of a right;
- it fails to implement without delay a right which it is required by the
Interpretative Principles specifically relating to Part III of the Covenant Covenant to provide immediately;
“prescribed by law” - it wilfully fails to meet a generally accepted international minimum
- same comments as “determined by law” standard of achievement, which is within its powers to meet;
- not be arbitrary or unreasonable or discriminatory - it applies a limitation to a right recognized in the Covenant other
- shall be clear and accessible to everyone. than in accordance with the Covenant;
- Adequate safeguards and effective remedies shall be provided by - it deliberately retards or halts the progressive realization of a right,
law against illegal or abusive imposition on application of limitations unless it is acting within a limitation permitted by the Covenant or it
on economic, social and cultural rights. does so due to a lack of available resources or force majeure;
- it fails to submit reports as required under the Covenant.
“necessary in a democratic society”
- Implies that the limitation: Consideration of States Parties’ Reports and international Cooperation
o Responds to a pressing public or social need Under Part IV of the Covenant
o Pursues a legitimate aim; and
o Proportional to that aim Preparation and submission of reports by States parties
- depends largely upon the duality and timeliness of reports by States
“national security” parties
- may be invoked to justify measures limiting certain rights only when - urged to make their reports as meaningful as possible
they are taken to protect the existence of the nation or its territorial - develop adequate internal procedures for consultations with the
integrity or political independence against force or threat of force competent government departments and agencies, compilation of
- cannot be used as a Pretext for imposing vague or arbitrary relevant data, training of staff, acquisition of background
limitations and may be invoked only when there exist adequate documentation, and consultation with relevant non-governmental
safeguards and effective remedies against abuse. and international institutions
- view their reporting obligations as an opportunity for broad public
“public order” discussion on goals and policies designed to realize economic,
- defined as the sum of rules which ensures the functioning of society social and cultural rights.
or set of fundamental principles on which a society is founded - specify, as appropriate, the judicial remedies, administrative
- context of the purpose of the particular economic, social and procedures and other measures they have adopted for enforcing
cultural rights which are limited on this ground those rights and the practice under those remedies and procedures.
“rights and freedoms of others” Role of Committee on Economic, Social, and Cultural Rights
- extends beyond the rights and freedoms recognized in the - to consider States parties reports and to make suggestions and
Covenant recommendations of a general nature, including suggestions and
Violations of Economic, Social, and Cultural Rights recommendations as to fuller compliance with the Covenant by
- failure to comply with an obligation States parties.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 35
Relations between the Committee and Specialized Agencies, and other - Should be given an alternate sites at Malavani or at such other
International Organs convenient place as the Government considers reasonable but not
- It is essential for the proper supervision of the implementation of the farther away in terms of distance
Covenant under Part IV that a dialogue be developed between the Two Conclusions from the discussion:
specialized agencies and the Committee with respect to matters of a. Right to life which is conferred by Art. 21 includes the right to
common interest livelihood
Consultations should be initiated between the Committee and b. It is established that if the petitioners are evicted from their
international financial institutions and development agencies to dwellings, they will be deprived of their livelihood
exchange information and share ideas on the distribution of - Such deprivation has to be according to procedure established by
available resources in relation to the realization of the rights law
recognized in the Covenant
should develop, in co-operation with intergovernmental Notes:
organizations and non-governmental organizations as well as - Expansion of interpretation of Art. 21 in relation to a wide range of
research institutes an agreed system for recording, storing and social sectors, including health
making accessible case law and other interpretative material - Rakesh Chandra Narayan v State of Bihar –
relating to international instruments on economic, social and o abusive conditions in a mental hospital; Chief Judicial
cultural rights. Magistrate visited and reported that only 9/16 medical
officers had been appointed, no light or ventilation, acute
OLGA TELLIS v BOMBAY MUNICIPAL CORPORATION water shortage, 300 beds for 1580 patients, meals were
Facts: inadequate, medicines were very short in supply.
- Writ of petitions portray the plight of lakhs of persons who live on o Court ordered that measures be taken; after 18 months,
pavements and in slums in the city of Bombay – constitute nearly responses of the authorities ‘have not given us the
half of the population of the society, exist in the midst of filth and satisfaction of the touch of appropriate sincerity in action’
squalor à they came to Court to ask for a judgment that they and that they have been ‘half-hearted’
cannot be evicted from their squalid shelters without being offered o Appointed a Committee of Management – to look after all
alternative accommodation aspects of the institution
o Basis: Art. 21 of the Constitution – no person shall be - Consumer Education & Research Center v Union of India –
deprived of his life except according to procedure o Petition complaining of the hazards faced by workers in
established by law asbestos-related industries
o Contention is NOT that they have a right to live on the o Cited ILO standards and detailed the medical
pavements; contention is that they have a RIGHT TO consequences of the exposure
LIVE, which cannot be exercised without the means of o Court took the opportunity to expand its definition of the
livelihood right to life and to make a detailed remedial order:
Issue: whether the right to life includes the right to livelihood § Right to health to a worker is an integral facet of
Held: YES, it is wide and far-reaching; must be deemed to be an integral meaningful right to life, not only a meaningful
component of the right to life existence, but also robust health and vigour
- Deprive a person of his right to livelihood and you shall have without which worker would lead life of misery
deprived him of his life § Thus: right to health, medical aid to protect the
- Art 39a of the Constitution – State shall direct its policy towards health and vigour to a worker while in service or
securing that the citizens, men and women equally, have the right post retirement is a fundamental right under Art.
to an adequate means of livelihood 21
- Court used commonsense and did not require any more petitioners - Paschim Banga Khet Mazdoor Samity v State of West Bengal –
to adduce evidence that they will be rendered jobless o Petitioner fell off a train and suffered serious head injuries;
he was taken by ambulance to a succession of hospitals
and turned away – because the hospital did not have the
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 36
necessary facilities or because no free beds were - Because of shortage à hospital follows a policy – only patients who
available. Ended up at an expensive private hospital suffer from acute renal failure, which can be treated and remedied
o Court found a violation of Art. 21 by renal dialysis are given automatic access; patients like appellant,
§ Constitution envisages the establishment of a who suffer from chronic renal failure are not admitted automatically
welfare state at the federal level as well as at the - Appellant alleged that he could not afford treatment at private
state level… primary duty of the Government is to hospitals and he sought a judicial order directing Addington
secure the welfare of the people which includes Hospital to provide necessary treatment
providing adequate medical facilities by running - His application was dismissed, and he then applied for leave to
hospitals and health centres appeal to the Constitutional Court. His claim was based on sections
§ Art. 21 imposes an obligation on the State to 27(3) and 11 of the 1996 Constitution…
safeguard the right to life of every person Appellant’s contention/s:
§ Preservation of human life is thus of paramount - that section 27(3) should be construed consistently with the right to
importance. life entrenched in section 11 of the Constitution and that everyone
§ Government hospitals are duty bound to extend requiring life-saving treatment who is unable to pay for such
medical assistance for preserving human life… treatment herself or himself is entitled to have the treatment
failure on the part of the Government to provide provided at a state hospital without charge.
timely medical treatment violates Article 21 - Relied upon Paschim Banga Khet Mazdoor Samity and others v
o Court ordered also remedial measures to ensure that in State of West Bengal and another
future proper medical facilities are available for dealing Held:
with emergency cases - What is apparent from these provisions is that the obligations
§ Ordered additional emergency facilities, imposed on the state by sections 26 and 27 in regard to access to
upgrading local hospitals, improved ambulance housing, health care, food, water and social security are dependent
facilities, and preparation to ensure that medical upon the resources available for such purposes, and that the
personnel are geared to deal with larger number corresponding rights themselves are limited by reason of the lack of
of patients resources. Given this lack of resources and the significant demands
o As to financial implications, court said: on them that have already been referred to, an unqualified
§ It cannot be ignored that it is the constitutional obligation to meet these needs would not presently be capable of
obligation of the State to provide adequate being fulfilled. This is the context within which section 27(3) must be
medical services to the people. construed.
§ It cannot avoid constitutional obligation in that - This Court has dealt with the right to life in the context of capital
regard on account of financial constraints. punishment but it has not yet been called upon to decide upon the
parameters of the right to life or its relevance to the positive
SOOBRAMONEY V. MINISTER OF HEALTH (KWAZULU- NATAL) obligations imposed on the state under various provisions of the bill
Facts: of rights.
- Appellant – 41 y/o unemployed man, a diabetic – suffers from - The purposive approach [to constitutional interpretation] will often
ischaemic heart disease and cerebro-vascular disease à caused be one which calls for a generous interpretation to be given to a
him to have a stroke during 1996 right to ensure that individuals secure the full protection of the bill of
- In 1996, kidneys also failed; condition is irreversible and is in the rights, but this is not always the case, and the context may
final stages of a chronic renal failure indicate that in order to give effect to the purpose of a particular
- Life could be prolonged by means of regular renal dialysis; he provision 'a narrower or specific meaning' should be given to it.
sought such treatment from the renal unit of the Addington state - If section 27(3) were to be construed in accordance with the
hospital in Durban appellant's contention it would make it substantially more difficult for
- Hospital however can provide dialysis treatment to a limited number the state to fulfill its primary obligations under sections 27(1) and (2)
of patients; only 20 dialysis machines available, and some are in to provide health care services to (everyone' within its available
poor condition resources. It would also have the consequence of prioritising the
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 37
treatment of terminal illnesses over other forms of medical care and - respondents began to move out of Wallacedene in September
would reduce the resources available to the state for [non-life 1998, putting up shacks on vacant privately owned land (named
threatening medical needs]. 'New Rust') that was earmarked for eventual low- cost housing.
- Section 27(3) itself is couched in negative terms - it is a right not to - Owner brought it to court, resulted in an order instructing sheriff to
be refused emergency treatment. The purpose of the right seems evict them and dismantle their shacks; but ordered to identify
to be to ensure that treatment be given in an emergency, and is not alternative land for permanent or temporary occupation
frustrated by reason of bureaucratic requirements or other - Respondents were evicted à bulldozed and possessions destroyed
formalities .... What the section requires is that remedial treatment - Respondents applied to Cape of Good Hope Hight Court for an
that is necessary and available be given immediately to avert that order requiring the government to provide them with adequate basic
harm. housing until they obtained permanent accommodation.
- At present the Department of Health in KwaZulu-Natal does not - Court ordered appellants to provide respondents with shelter –
have sufficient funds to cover the cost of the services which are tents, portable latrines, and a regular supply of water would
being provided to the public .... There are many more patients constitute the bare minimum.
suffering from chronic renal failure than there are dialysis machines Issue: The question is therefore not whether socio-economic rights are
to treat such patients. This is a nation-wide problem and resources justiciable under our Constitution, but how to enforce them in a given case...
are stretched in all renal clinics throughout the land… By using the
available dialysis machines in accordance with the guidelines more Held:
patients are benefited than would be the case if they were used to - The Court turned to a discussion of the ICESCR and the work of
keep alive persons with chronic renal failure, and the outcome of the UN Committee on ESCR. The opinion emphasized Art. 11 (the
the treatment is also likely to be more beneficial because it is right of everyone to an adequate standard of living ... , including
directed to curing patients. adequate food, clothing and housing) and Art. 2 (States parties will
- These choices involve difficult decisions to be taken at the take appropriate steps to ensure the realization of this right ... to the
political level in fixing the health budget, and at the functional maximum of available resources etc.).
level in deciding upon the priorities to be met. A court will be - Each right has a "minimum essential level" that must be satisfied
slow to interfere with rational decisions taken in good faith by the by the states parties .... Minimum core obligation is determined
political organs and medical authorities whose responsibility it is to generally by having regard to the needs of the most vulnerable
deal with such matters group that is entitled to the protection of the right in question. It is in
- Cited case: health authorities of all kinds are constantly pressed to this context that the concept of minimum core obligation must be
make ends meet.... Difficult and agonising judgments have to be understood in international law
made as to how a limited budget is best allocated to the maximum - It is not possible to determine the minimum threshold for the
advantage of the maximum number of patients. That is not a progressive realisation of the right of access to adequate housing
judgment which the court can make. without first identifying the needs and opportunities for the
Atty. Temprosa: magic word – reasonable; it appears that it has utilitarian enjoyment of such a right. These will vary according to factors such
approach; but also, it could be a pragmatic approach. as income, unemployment, availability of land and poverty.
- For those who can afford to pay for adequate housing, the state's
primary obligation lies in unlocking the system, providing access to Evaluation of the conduct of the appellants
housing stock and a legislative framework to facilitate self-built - The state had an obligation to ensure, at the very least, that the
houses through planning laws and access to finance. Issues of eviction was humanely executed. However, the eviction was
development and social welfare are raised in respect of those who reminiscent of the past and inconsistent with the values of the
cannot afford to provide themselves with housing. State policy Constitution. The respondents were evicted a day early and to
needs to address both these groups. The poor are particularly make matters worse, their possessions and building materials were
vulnerable and their needs require special attention. not merely removed, but destroyed and burnt
- The state's obligation to provide access to adequate housing - I stress however, that despite all these qualifications, these are
depends on context, and may differ from province to province, rights, and the Constitution obliges the state to give effect to them.
from city to city, from rural to urban areas and from person to This is an obligation that courts can, and in appropriate
person. circumstances, must enforce.
Atty. Temprosa: in order to comply with minimum core obligations à
Reasonable legislative and other measures: requires that you have reasonable programmes BUT WHAT DO YOU
- What constitutes reasonable legislative and other measures must MEAN BY REASONABLENESS
be determined in the light of the fact that the Constitution
creates different spheres of government: national government, Atty. Temprosa: progressive – taking steps forward; again, minimum core.
provincial government and local government In Olga Tellis – interrelated à civil and political rights and the minimum core
- They must, however, ensure that the measures they adopt are obligations here.
reasonable .... A court considering reasonableness will not enquire - ESCR rights – “reasonableness”
whether other more desirable or favourable measures could have
been adopted, or whether public money could have been better TREATMENT OF ACTION CAMPAIGN (TAC) v. MINISTER OF HEALTH
spent. Facts:
- Those whose needs are the most urgent and whose ability to enjoy - TAC – lead applicant among other civil society groups working on
all rights therefore is most in peril, must not be ignored .... It may HIV/AIDS
not be sufficient to meet the test of reasonableness to show that the - HIV/AIDS epidemic – reached catastrophic proportions; common
measures are capable of achieving a statistical advance in the transmission à Mother to child; 70,000 children are infected every
realisation of the right year
- Section 26 does not expect more of the state than is achievable - Registered Nevirapine – to reduce mother-to-child transmission of
within its available resources .... The measures must be calculated HIV – that it is safe, of acceptable quality, and therapeutically
to attain the goal expeditiously and effectively but the availability of efficacious
resources is an important factor in determining what is reasonable. - In July 2000 – manufacturer offered to make it available to the
- These are people in desperate need. Their immediate need can be South African government free of charge for a period of 5 years
met by relief short of housing which fulfils the requisite standards of - Government decided to make it available only at a limited number
durability, habitability and stability encompassed by the of pilot sites à doctors in the public sector who do not work at one
definition of housing development in the [Housing] Act. of those pilot sites are unable to prescribe
- Effective implementation requires at least adequate budgetary - Applicants are aware of the desirability of a multiple-strategy
support by national government. This, in turn, requires recognition approach to the prevention of mother-to-child transmission.
of the obligation to meet immediate needs in the nationwide However, they cannot and do not accept that this provides a
housing programme. Recognition of such needs in the nationwide rational or lawful basis for depriving patients at other sites of the
housing programme requires it to plan, budget and monitor the undoubted benefits of Nevirapine.
fulfilment of immediate needs and the management of crises… In o Argument: There is no rational or lawful basis for allowing
conclusion ... the programmes adopted by the state fell short of the doctors in the private sector to exercise their professional
requirements of section 26(2) in that no provision was made for judgment in deciding when to prescribe Nevirapine, but
relief to the categories of people in desperate need identified earlier
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 39
effectively prohibiting doctors in the public sector from d. Consideration relevant to reasonableness – must be balanced and
doing so. flexible and make appropriate provision for attention to crises and to
o Government failed to implement a comprehensive short, medium, long term needs
programme for the prevention – conduct of government is e. Children’s rights – state is obliged to ensure that children are
irrational, in breach of the Bill of Rights and in breach of its accorded the protection contemplated by section 28 that arises
international obligations when the implementation of the right to parental or family care is
Contention of government: Counsel for the government contended that even lacking. Here we are concerned with children born in public
if this Court should find that government policies fall short of what the hospitals and clinics to mothers who are for the most part indigent
Constitution requires, the only competent order ... that a court can make is to and unable to gain access to private medical treatment which is
issue a declaration of rights to that effect. beyond their means. They and their children are in the main
dependent upon the state to make health care services available to
Discussion: them.
- This right, so the contention went, has a minimum core to which
every person in need is entitled. The concept of "minimum core" Power of Courts
was developed by the United Nations Committee on [ESCR in its - This Court has made it clear on more than one occasion that
General Comment No.3] although there are no bright lines that separate the roles of the
- There is accordingly a distinction between the self-standing rights in legislature, the executive and the courts from one another, there
sections 26(1) and 27(1), to which everyone is entitled, and which are certain matters that are pre-eminently within the domain of one
in terms of section 7(2) of the Constitution" [t]he state must or other of the arms of government and not the others. All arms of
respect, protect, promote and fulfil", and the independent government should be sensitive to and respect this separation. This
obligations imposed on the state by sections 26(2) and 27(2). does not mean, however, that courts cannot or should not make
- [IMPORTANT] Although Yacoob J [in Grootboom] indicated that orders that have an impact on policy
evidence in a particular case may show that there is a minimum - The primary duty of courts is to the Constitution and the law....
core of a particular service that should be taken into account in The Constitution requires the state to "respect, protect, promote,
determining whether measures adopted by the state are and fulfil the rights in the Bill of Rights" Where state policy is
reasonable, the socio-economic rights of the Constitution should challenged as inconsistent with the Constitution, courts have to
not be construed as entitling everyone to demand that the minimum consider whether in formulating and implementing such policy
core be provided to them. Minimum core was thus treated as the state has given effect to its constitutional obligations.
possibly being relevant to reasonableness under section 26(2), - Particularly in a country where so few have the means to enforce
and not as a self-standing right conferred on everyone under their rights through the courts, it is essential that on those
section 26( 1). occasions when the legal process does establish that an
- The Constitution contemplates rather a restrained and focused role infringement of an entrenched right has occurred, it be effectively
for the courts .... Determinations of reasonableness may in fact vindicated. The courts have a particular responsibility in this
have budgetary implications, but are not in themselves directed regard and are obliged to 'forge new tools' and shape
at rearranging budgets. In this way the judicial, legislative and innovative remedies, if needs be, to achieve this goal
executive functions achieve appropriate constitutional balance. - We thus reject the argument that the only power that this Court has
Different issues: in the present case is to issue a declaratory order. Where a breach
a. As to efficacy – Clear from evidence that nevirapine will save lives of any right has taken place, including a socio-economic right,
of a significant number of infants a court is under a duty to ensure that effective relief is granted.
b. Resistance – prospects of the child surviving if infected are so slim
and the nature of the suffering so grave that the risk of some No violations here.
resistance manifesting at some time in the future is well worth Atty. Temprosa: Meaning of self-standing right
running. - Can work on its own – independent
c. Safety – no more than a hypothetical issue; recommended without - Doctrine: can is not institutionally equipped
qualification by WHO
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 40
- The outcome of the case is that the applicants have not persuaded
this Court to specify what quantity of water is "sufficient water" Civil and political rights (CPR) Economic and social rights
within the meaning of section 27 of the Constitution. Nor have they Universal, paramount, categorical Belong to a different logical
persuaded the Court that the City's policy is unreasonable. The moral rights category
applicants submitted during argument that if this were to be the i.e. à TEST: Universality and paramountcy à to be considered human
result, litigation in respect of the positive obligations imposed by rights
social and economic rights would be futile. It is necessary to
consider this submission. AS TO UNIVERSALITY – Right to work (Cranston) - refers directly to a
- The purpose of litigation concerning the positive obligations particular class of people, not to all human beings
imposed by social and economic rights should be to hold the - ALSO: Many civil and political rights fail such test of universality.
democratic arms of government to account through litigation. In so - Example: only citizens who have attained a certain age and
doing, litigation of this sort fosters a form of participative democracy completed formalities of registration have right to vote.
that holds government accountable and requires it to account
between elections over specific aspects of government policy. AS TO PARAMOUNTCY – Cranston singles out the right to periodic holidays
- When challenged as to its policies relating to social and economic with pay
rights, the government agency must explain why the policy is - HOWEVER: such a right is no less important than, say, the right of
reasonable. Government must disclose what it has done to juveniles to separate prison facilities, which is recognized in the
formulate the policy: its investigation and research, the alternatives ICCPR
considered, and the reasons why the option underlying the policy - Paid holidays – right to “rest, leisure, and reasonable limitation of
was selected. The Constitution does not require government to working hours and periodic holidays with pay.”
be held to an impossible standard of perfection. Nor does it o Hardly the typical economic and social right.
require courts to take over the tasks that in a democracy should
properly be reserved for the democratic arms of government AS TO PRACTICALITY – Cranston’s appeal to (im)practicality is more
Atty. Temprosa: if process followed is flawed, information gathered is complex. “‘Political rights’ can be readily secured by legislation. The
inadequate; economic and social rights can rarely, if ever, be secured by legislation
Establishing an amount – will result to unevenness alone”
- Administratively burdensome Civil and political rights Economic and social rights
As to measure reasonableness? Is this enough? Do you agree? Can be secured by legislation Can rarely, if ever, be secured by
legislation alone.
ECONOMIC RIGHTS AND GROUP RIGHTS - IN FACT, HOWEVER – no right can reliably realized through
JACK DONNELLY legislation alone
o Consider: enforcement à otherwise, legal and politically
Two principal challenges to the Universal Declaration model: insecure
a. Status of economic and social rights
b. Restriction of internationally recognized human rights Cranston claims that “there is nothing essentially difficult about transforming
political and civil rights into positive rights,” whereas realizing economic and
I. Status of Economic and Social Rights social rights is “utterly impossible” in most countries.
- “civil and political rights” AND “economic, social, and cultural rights” Civil and political rights Economic and social rights
- Dichotomy born of political controversy Can be transformed into positive Utterly impossible to transform into
rights positive rights
A. UNIVERSALITY AND PARAMOUNTCY
Economist: to guarantee these Potentially costly
Most cited argument (Maurice Cranston): whereas traditional civil and
rights is relatively cheap
political rights to life, liberty, and property are “universal, paramount,
Hugo Adam Bedau: argument from indifference to economic
categorical moral rights”, economic and social rights “belong to a different
contingencies
logical category” —that is, are not truly human rights.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 42
- IN FACT, HOWEVER – there severe impediments to establishing violation involves the direct the failure to confer a benefit (acts
an effective positive right, e.g. freedom of speech in North Korea. infliction of injury (an act of of omission)
Only in particular kinds of political circumstance are CPR likely to commission)
be systematically easier to implement. Shue: still, little moral difference
- Ease of implementation is certainly irrelevant to determining
moral paramountcy. C. RIGHT TO PROPERTY
- Almost all critics accept a right to private property.
AS TO OUGHT IMPLIES CAN – Cranston argues that it is logically
incoherent to hold that economic and social “rights” are anything more than Cranston concludes his property chapter by insisting that property “is
utopian aspirations. inseparable from liberty”. Enough food to remain alive and guaranteed rest
- “can” in “Ought implies can” – refers to physical impossibility and leisure, however, are also inseparable from liberty, but Cranston denies
- unless it is physically impossible, one may still be obliged to try to human rights to these things.
do something that proves to be “impossible.” The impediments to - A limited right to property can make an important contribution to a
implementing most economic and social rights, however, are life of dignity. This single economic right alone, however, simply
political. cannot provide economic security and autonomy for all. In fact,
for many people—in the Western world, most people, whose
B. POSITIVE AND NEGATIVE RIGHTS principal “property” is their labor power or skills—other economic
Positive Negative and social rights would seem to be a better mechanism to realize
Require others to provide goods, Require only forbearance on the economic security and autonomy.
services, or opportunities part of others
- Henry Shue – this distinction is of little moral significance; fails to D. TRANSCENDING THE DICHOTOMY
correspond to the distinction - Obscures the immense diversity within each of its two classes
ECONOMIC, SOCIAL, AND CUTURAL RIGHTS Argument of author: individual rights approaches usually are capable of
Rights to food and health care Provide survival and minimal accommodating the legitimate interests of even oppressed groups—and that
physical security against disease or where they are not, group human rights rarely will be more likely to provide
injury an effective remedy.
Rights to social security, work, reflect not only the material
rest and leisure, and trade unions necessity of labor but also the fact A. INDIVIDUAL RIGHTS AND GROUP DIFFERENCE
that meaningful work often is central
to personal dignity and development Two principal mechanisms:
rights to education, to found and Provide social and cultural a. Nondiscrimination
maintain a family, and to membership and participation b. Freedom of association and participation
participate in the cultural life of the
community Non-discrimination Freedom of association
protects a sphere of personal and entitle individuals to act, alone or
Striking affinities across the conventional categories: group liberty and offers protection with others of their choosing, to
a. Right to work – a right to economic participation that is against suffering imposed for group realize their visions of the good life.
instrumentally and intrinsically valuable in ways very much like the membership.
right to political participation - Together – provide a wide-ranging and coherent set of protections
b. Cultural rights – related to individual civil liberties, given the integral for groups and individuals rooted in the core values of equality and
place of religion, public speech, and the mass media in the cultural autonomy
life of most communities
Individual rights approaches to group difference rest on the idea that group
IMPORTANT: affiliations—other than membership in the species Homo sapiens— ought to
Our lives—and the rights we need to live them with dignity—do not fall be irrelevant to the rights and opportunities available to human beings.
into largely separate legal-political and socioeconomic spheres.
Economic and social rights usually are violated by, or with the collusion Three general approaches to NON-DISCRIMINATION:
of, elite-controlled political mechanisms of exclusion and domination. Toleration involves not imposing special legal burdens or
Poverty in the midst of plenty is a political phenomenon. Civil and political disabilities on individuals based on voluntary,
rights are often violated to protect economic privilege. We must think ascriptive, or imposed group membership or
about and categorize human rights in ways that highlight rather than disapproved behavior associated with a group.
obscure such central social realities. Equal Protection requires active efforts to insure that members of all
groups enjoy the (equal) rights that they formally
How one thinks about human rights cannot determine political practice. hold.
Nonetheless, certain ways of thinking, such as the traditional - Minimum: not excluded from goods,
dichotomy, can help to support widely prevalent patterns of human services, and opportunities that would be
rights violations. In every country where ruling elites have been able to available to them were they not members
enforce such a dichotomization, the consequence has been the of despised or disadvantaged groups
systematic violation of a wide range of internationally recognized human - “affirmative action” and certain kinds of
rights. “reverse discrimination”
Multiculturalism positively values diversity, implying policies that
II. GROUP RIGHTS AND HUMAN RIGHTS recognize, celebrate, preserve, or foster group
differences.
Standard complaint: excessively individualistic - Differences are highlighted and positively
Remedy: Group human rights valued, within a general context of equal
concern and respect
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 44
Different states are free to choose among them, for a variety of reasons, Decolonization – a practical prerequisite to the enjoyment of internationally
and particular groups and their differences may reasonably be addressed by recognized human rights. And it is the subjected people as a group that have
different approaches within a particular country. this right. (only a first step on the way to the protection of human rights)
- Example: it would be completely consistent with international
human rights standards for a state to merely tolerate one minority C. SEVEN SKEPTICAL QUESTIONS ABOUT GROUP HUMAN
religion while actively supporting the majority religion and a different RIGHTS
minority religion. Author’s stance: which if any group human rights beyond the right of peoples
- Rationale: margin of appreciation left to states to self-determination ought to be recognized?
- General approach: permissive, not determinative How do we identify wild proliferation of human rights that would
o “allows for a state committed to the survival and flourishing the groups that ought devalue the practical force of claims of human
of a particular nation, culture, or religion, or of a (limited) to hold human rights? rights. Certainly not all groups ought to have
set of nations, cultures, and religions—so long as the human rights. Consider, for example, states,
basic rights of citizens who have different commitments or multinational corporations, gangs, and
no such commitments at all are protected” barbershop quartets.
Having identified The most limited move would be to recognize
Freedom of association group x as a potential those rights needed to enjoy already
models group membership as a “voluntary” exercise of the protected holder of human recognized human rights. These, however,
autonomy of its members. rights, what particular would be only temporary, remedial measures,
substantive rights and thus probably best seen as practical
B. GROUPS RIGHTS AND GROUP HUMAN RIGHTS does or should x measures to achieve nondiscrimination.
Group Rights Group Human Rights have?
rights held by a corporate entity Group right à human right Who exercises group The rights of states are exercised by
that is not reducible to its individual - MUST be UNIVERSAL; all rights? governments. The rights of business
members groups of the specified corporations are exercised by shareholders,
type must have such right directors, and managers. Who ought—and is
Example: Right of peoples to self- able—to exercise, for example, minority rights,
State – distinct from that of its determination understood as rights of a group?
citizens where the group is “natural,” ascribed, or
- National interests – not coercively defined and maintained, agency is
the sum of the interests of likely to be highly problematic, especially when
the citizens the group is large, heterogeneous, or widely
Business corporations – distinct dispersed.
from stockholders or staff How do we handle group rights will not only increase the number
Atty. Temprosa: conflicts of rights of conflicts but also create unusually intense
First Gen rights – CPR competition between qualitatively different
Second Gen rights – ESCR kinds of rights
Third Gen rights – Collective or group rights Are the purported Burden of proof – ought to lie with advocates of
group rights group rights
National Implementation of internationally recognized human rights - necessary? Is the
one enjoys one’s human rights through the agency of “one’s own” state problem a lack of
group rights or rather
Overseas colonialism - failed to provide a state that protects the equal inadequate efforts to
human rights of subjected peoples; well-recognized standard threat to
human dignity
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 45
implement individual not now, and I think should not become, subjects of international
human rights? human rights protection. Only individual autonomy gives rise, and
Why should we If a government refuses to respect the value, to identities that must be respected by others.
expect group rights to individual rights of a despised minority, it will - Identity is entitled to protection only where it is an autonomous
succeed where usually (although perhaps not always) be hard expression of the rights and values of those who carry it.
individual rights have to imagine it being convinced to treat those - In such a social and political environment, groups of all sorts have a
failed? people better as members of a group. If the fair opportunity to compete in shaping the identities of their
difference between “us” and “them” is members. If a particular identity is valued sufficiently, it will survive,
emphasized by group rights, might this not lead perhaps even thrive. If not, then it will not. And that is the way it
to even worse treatment? should be.
Are group rights the demand an argument for protecting the values - This does not preclude active state support for a threatened or
best way to protect or in question through the mechanism of rights. In declining group. Such support, however, reflects a more or less
realize the interests, particular, we must ask whether recognizing a voluntary decision of justice or policy that a state or society is free
values, or desires of a new group human right—which by definition (not compelled) to make for particular groups of its choosing. No
group? would hold against all states for all groups of group is entitled to such support simply because it is a group (or
the designated type—is either necessary or even a group of a particular type, such as a racial minority).
desirable.
HUMAN RIGHTS AND DEVELOPMENT: A COMMENT ON CHALLENGES
D. INDIGENOUS PEOPLES – AN EXCEPTION TO THE INDIVIDUAL AND OPPORTUNITIES FROM A LEGAL PERSPECTIVE
RIGHTS APPROACH SIOBHAN MCINERNEY-LANKFORD, 2009
Internationally recognized human rights for indigenous people should be “Underappreciated” point: human rights are the subject of binding
seen as an exception that proves the rule rather than a model for a new international legal obligations and their relevance to development can be
general approach to group rights. understood in light of this
The Relationship Between Human Rights and Development development policy and practice, which has
enriched development discourse and improved
Convergence and Divergence development processes and outcomes through
PARAMETERS OF THE OVERLAP securing greater participation, consultation, and
Factual/Substantive one can identify a confluence of human rights and equity.
Overlap development in the expanding range of functions, Obligations It is potentially the most important, but also the
activities, and policies of development agencies least established. It is common to encounter
and international financial institutions (IFIs) which statements that assert a link between human
overlap with the material provisions of human rights and development, or claims that
rights treaties development either contributes to the realization
of human rights or creates the conditions under
Development projects and programs now cover which human rights can be realized.
the gamut of social and human development,
much of which bear a direct relationship to core Specification of obligations and duty
economic and social rights, and connect to a
number of civil and political rights. Development At a philosophical level ‘rights require
institutions conduct a broad range of operations in correlative duties’, and without duty there is no
the fields of health, education, labor and social right.
security, children and youth, and food. They
increasingly promote governance programs, anti- PIL Sources: treaties, custom, and general
corruption strategies, as well as justice reform principles of law
and rule of law activities. However, while there is In conclusion therefore, the relationship at a factual level evidences
much substantive congruence, this ‘factual substantial overlap; at the level of principles, a certain compatibility and
overlap’ does not automatically align with all convergence, but at the level of obligations or duty, something more like
the objectives of such operations and those of divergence.
‘corresponding’ human rights treaties.
Convergent there is a documented overlap between human Reasons for the enduring disconnects and tensions:
Principles rights and development evident in the principles a. Legal or mandate constraints - Development agencies assert
that are now prominent in the mainstream of that human rights are inherently political – thus, outside their
development policy. Principles like participation established mandate and competence.
and consultation, inclusion, cohesion, good b. Political Resistance and value-based objections – human rights
governance, accountability and equality or is not a concept around which there can be said to be consensus,
equity, are well established in development and at an international level it is one of inescapable political
discourse, but they also constitute the tenets of a sensitivity, with states fiercely protective of their human rights
rights-based approach to development with roots records and resistant to rankings, assessments and censure; seen
in human rights philosophy or conventions. as a controversial subject in development agencies and IFIs;
divisive potential.
Equality – heart of the international human rights o many oppose what they perceive as double standards and
framework – in instruments likes CEDAW, CRPD, hypocrisy when the dictates come from countries with
CERD, ICCPR, ICESCR. Development discourse economic power rather than exemplary human rights
often embraces equality principles, sometimes records.
finding its analogues in the principle of equity. o Disproportionate impact human rights-related
conditionalities might have on certain member countries –
At the level of principle therefore, a concerted that is beyond the disproportionate impacts on borrowing
effort exists to integrate human rights into countries.
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 47
development results are not possible if gender inequalities - Policies of EBRD and NEPAD
persist, environmental damage is accepted, or human - APRM
rights are abused’
o the human rights context, including their legal context, may Conclusions regarding development frameworks and the incorporation of
be useful to inform donors’ choices of aid instruments to human rights
help strengthen accountability and ensure that resources 1. First, the discussion of divergence above reveals that in most
reach the poorest and least powerful. development institutions or agencies human rights are not
c. Poverty reduction strategies – pre prerequisite for concessional characterized in legal or obligatory terms.
assistance from the International Development Association (IDA) 2. Second, policies that recognize the interconnection of development
and the IMF, and debt relief under the Heavily Indebted Poor policy and international law tend to take a more holistic view of
Countries (HPIC) initiative of the World Bank and the International the participation of states in various fora, and the interlinked
Monetary Fund (IMF). nature of their duties in different international contexts.
o Despite the overlap of human rights and poverty reduction o neglect the legal dimension of the former and states may
strategies at a factual or even principled level, human content to keep their treaty obligations under human rights
rights are not the subject of concrete engagement within instruments separate from the processes and policies that
PRSs and do not influence their design in any discernable determine their contributions to, or allocations from,
way, and is at best only implicitly incorporated in the development expenditures.
strategies in the tools and documents that relate to these. 3. Third, even policies that bridge human rights and development are
o Occasional references to human rights exist in individual typically stronger at the level of discourse than they are in
PRSs, but few if any specific references are made to respect of assessment, monitoring and evaluation.
international human rights treaties. Such references, o From a different perspective, however, the signs of
unaccompanied by links to specific inter- national human bridging in certain policies point to ways in which the work
rights instruments, may result in human rights being of international human rights bodies could be put to use in
incorporated only implicitly with little specific operational development activities
relevance 4. Fourth, while there is no causality argued that neglect of the law
results in development policies’ failure to respect, protect and fulfill
Policy efforts to bridge development and human rights human rights, there may be some weight to the reverse
- Most prominent policy frameworks governing development and aid argument that recognizing the importance of human rights law
do not integrate human rights systematically. However, significant obligations would require positive human rights outcomes in
efforts to link human rights and development and aid do exist, development and efforts to safeguard against human rights harm
including examples of policies that make explicit reference to the where possible.
international human rights law framework.
- A rights-based approach is mandated as integral to the form and Legal Dimensions of Human Rights in Development Policy –
content of the UN’s development policy, and is central to the Challenges and Opportunities
approaches of both the UNDP, and the OHCHR, including in
relation to work on the MDGs and poverty. Many UN policy Value of the law in safeguarding the place of human rights in development
frameworks and statements make reference to international legal ‘be clearly and systematically integrated into development’
instruments as the source for human rights in development, or as - Human rights law is founded on a set of stable, positive law
an overall guiding framework for international cooperation. commitments into which states have voluntarily entered, binding
Examples: them to put in place domestic measures and legislation compatible
- 2006 Swiss Agency for Development and Cooperation Policy with their treaty obligations. Human rights treaty obligations have
- Austrian Development Cooperation Human Rights Policy Document the benefit of being bounded and voluntarily acceded to, with the
- NZ’s international Aid and Development Agency specific parameters of states’ obligations carefully negotiated, and
- Canadian legislation: 2008 Official Development Accountability Act circumscribed through reservation and derogation.
- EU Development Cooperation
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 49
- Human rights treaties are binding international agreements - like - fosters the sustainability of policies by preventing duplication and
trade agreements or environment treaties, which enjoy greater avoiding contradiction through promoting coherence across related
recognition in development frameworks and have a direct bearing subject matters and assessing the impacts of diverse areas of inter-
on development. national policy on one another.
- Despite the divisive politicization that plagues many human rights - highlights complementarities between frameworks designed and
processes, the specific contribution of approaches that integrate participated in by the same states, including the most widely ratified
human rights in development is that they make good practice and international human rights instruments.
principles a matter of obligation. - also indispensable to the realization of human rights.
- The fact that human rights have not been more systematically - supports a focus on existing obligations, and applies to the
integrated into development demands an examination of the institutional structures within which states, as traditional duty-
approaches that have been used, in particular non-legal, social bearers, operate so that the actions of states in various institutional
science and principled-based approaches. structures and processes do not undermine human rights
enjoyment.
Normative Baselines and the principle of “do no harm” - may also require that states assess the impact of policies in one
- Absence of an explicit normative standard against which to assess area on other policy areas, including how actions in various fora
development impact human rights, requiring that states act with consistency and
- Human rights law offers a normative baseline mandating non- at a minimum, ‘do no harm’
regression and a principle of ‘do no harm’, and uses this baseline to - respond to the challenge of policy coherence by providing an
strengthen and improve development practice. established legal platform around which to organize that coherence
- The incorporation of human rights legal standards mitigates human
rights harms by providing a binding legal standard against which A more unified accountability framework
development policies, processes and outcomes can be assessed - accountability for human rights cannot properly be upheld because
to: human rights obligations are not factored into development policies,
a. determine risk to human rights and whether development such that states—as donors or clients—can pursue development
activities are likely to, or in fact, result in harm; activities without any systematic assessments of their
b. ensure that development activities in fact promote human consequences in human rights terms and without there being any
rights or create the conditions for the realization of human effective legal recourse where those consequences are negative.
rights - The absence of legal duties in development policy frameworks
c. prevent and redress unintended negative impacts on undermines the possibility of the key contribution of human rights –
human rights in development processes and outcomes; accountability – being upheld in the context of development with
d. better understand the claim that development advances respect to both process and outcome
human rights; and - Second, while accountability frameworks such as those governing
e. foster a deeper understanding of the relationship between the Paris Declaration fulfill essential functions, and are not a priori
the two fields. inconsistent with human rights accountability, their parallel
existence, without any corresponding recognition of human rights
In concrete terms, the challenge presented by an absence of legally obligations or impacts presents a risk to the latter.
established normative baselines in development is potentially - Third, the accountability propounded through development
answered by human rights law. This might imply the incorporation of the frameworks is not equivalent to the legal accountability upheld
relevant human rights legal standards in development policies and through human rights law.
instruments, whether they address the level of country strategies or o Rather, it is an accountability centered on principles,
institutional assessment at a project level, or analyze the likely effects and political commitments and policy frameworks rather than
distributional impacts of certain interventions or policy reforms on various specific, binding legal obligations under public international
groups or stakeholders. law.
Conclusion:
Policy Coherence
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 50
Recognition of the treaty base of international human rights in the context (b) “International organization” means an organization established by a
of development refocuses attention on the fact that: treaty or other instrument governed by international law and possessing its
own international legal personality; international organizations may include,
(1) human rights are not voluntary or just rhetorical, they are the subject in addition to States, other entities as members;
of legally binding commitments; (c) “Working Group on the Right to Development” means the entity
(2) human rights may add value and fundamentally change how established by the Commission on Human Rights in its resolution 1998/72 of
development is pursued, what it pursues and what it can achieve; 22 April 1998, as endorsed by the Economic and Social Council in its
(3) realizing human rights may be different from undertaking good decision 1998/269 of 30 July 1998;
development practice – the former is done out of legal obligation, the (d) “High-level political forum on sustainable development” means the
latter might not be; entity established pursuant to the outcome document of the United Nations
(4) human rights are intrinsically valuable and therefore worth protecting Conference on Sustainable Development (Rio+20) of 2012, as endorsed by
in development; General Assembly resolution 66/288 of 27 July 2012 and supplemented by
(5) human rights can play an instrumental role in fostering sustainable Assembly resolution 67/290 of 9 July 2013.
development through adverting risk and focusing on ways in which
development can support the realization of human rights. Article 3 – General principles
To achieve the object and purpose of the present Convention and to
It is submitted that the failure to recognize the legal dimensions of human implement its provisions, the Parties shall be guided by, inter alia, the
rights may indeed be connected with the wider failure to recognize the principles set out below:
distinct value of human rights for development. (a) Human person and people-centred development: the human person
and people are the central subjects of development and should be the active
DRAFT CONVENTION ON THE RIGHT TO DEVELOPMENT participants and beneficiaries of the right to development;
MAY 2020 (b) Universal principles common to all human rights: the right to
development should be realized in a manner that integrates the principles of
The drafting group thus established comprised: accountability, empowerment, participation, non-discrimination, equality and
- Mihir Kanade (India) as its Chair and Rapporteur equity;
- Makane Moïse Mbengue (Senegal), (c) Human rights-based approach to development: development is a
- Koen de Feyter (Belgium), human right and should be realized as such and in a manner consistent with
- Diane Desierto (Philippines) and and based on all other human rights;
- Margarette May Macaulay (Jamaica) (d) Self-determined development: the right to development and the right to
Atty. Temprosa: Recognition that ICESCR is lacking. A utopian vision of self- determination are integral to each other and mutually reinforcing;
things. (e) Sustainable development: development cannot be sustainable if its
realization undermines the right to development, and the right to
Article 1 – Object and purpose development cannot be realized if development is unsustainable;
The object and purpose of the present Convention is to promote and ensure (f) The right to regulate: the realization of the right to development entails
the full, equal and meaningful enjoyment of the right to development by the right for States Parties, on behalf of their peoples, to take regulatory or
every human person and all peoples everywhere, and to guarantee its other related measures to achieve sustainable development on their territory;
effective operationalization and full implementation at the national and (g) International solidarity: the realization of the right to development
international levels. requires an enabling national and international environment created through
a spirit of unity among individuals, peoples, States and international
Article 2 – Definitions organizations, encompassing the union of interests, purposes and actions
For the purposes of the present Convention: and the recognition of different needs and rights to achieve common goals;
(a) “Legal person” means any entity that possesses its own legal this principle includes the duty to cooperate;
personality under domestic or international law and is not a human person, a (h) Universal duty to respect human rights: everyone has the duty to
people or a State; respect human rights, including the right to development;
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(i) Right and responsibility of individuals, groups and organs of society independent States conducting themselves in compliance with the principle
to promote and protect human rights: everyone has the right, individually of equal rights and self-determination of peoples, and thus possessed of a
and in association with others, to promote and to strive for the protection and government representing the whole people belonging to the territory, without
realization of the right to development at the national and international levels; distinction of any kind.
individuals, groups, institutions and non-governmental organizations also
have an important role and a responsibility in contributing, as appropriate, to Article 6 – Relationship with other human rights
the promotion of the right of everyone to a social and international order in 1. States Parties reaffirm that all human rights, including the right to
which the right to development can be fully realized. development are universal, interrelated, interdependent, indivisible and
equally important.
Part II 2. States Parties agree that the right to development is an integral part of
Article 4 – The right to development human rights and should be realized in conformity with the full range of civil,
1. Every human person and all peoples have the inalienable right to cultural, economic, political and social rights.
development by virtue of which they are entitled to participate in, contribute
to and enjoy economic, social, cultural, civil and political development that is Article 7 – Relationship with the general duty of everyone to respect
consistent with and based on all other human rights and fundamental human rights under international law
freedoms. Nothing in the present Convention may be interpreted as implying for any
2. Every human person and all peoples have the right to active, free and human or legal person, people, group or State any right to engage in any
meaningful participation in development and in the fair distribution of benefits activity or perform any act aimed at the destruction of any of the rights and
resulting therefrom. freedoms set forth herein or at their limitation to a greater extent than is
provided for in the Convention. To that end, States Parties agree that all
Article 5 – Relationship with the right to self-determination human and legal persons, peoples, groups and States have the general duty
1. The right to development implies the full realization of the right of all under international law to refrain from participating in the violation of the right
peoples to self- determination. to development.
2. All peoples have the right to self-determination by virtue of which they
freely determine their political status and freely pursue the realization of their Part III
right to development. Article 8 – General obligations of States Parties
3. All peoples may, in pursuing the realization of their right to development, 1. States Parties undertake to respect, protect and fulfil the right to
freely dispose of their natural wealth and resources based upon the principle development for all, without discrimination of any kind on the basis of race,
of mutual benefit and international law. In no case may a people be deprived colour, sex, gender, language, religion, political or other opinion, national,
of its own means of subsistence. ethnic or social origin, property, disability, birth, age or other status, in
4. The States Parties to the present Convention, including those having accordance with obligations set forth in the present Convention.
responsibility for the administration of Non-Self-Governing Territories, shall 2. States Parties shall ensure that public authorities and institutions at all
promote the realization of the right to self-determination, and shall respect levels act in conformity with the present Convention.
that right, in conformity with the provisions of the Charter of the United Article 9 – General obligations of international organizations
Nations. Without prejudice to the general duty contained in article 7, States Parties
5. States shall take resolute steps to prevent and eliminate massive and agree that international organizations also have the obligation to refrain from
flagrant violations of the human rights of persons and peoples affected by conduct that aids, assists, directs, controls or coerces, with knowledge of the
situations such as those resulting from apartheid, all forms of racism and circumstances of the act, a State or another international organization to
racial discrimination, colonialism, foreign domination and occupation, breach that State’s or that other international organization’s obligations with
aggression, foreign interference and threats against national sovereignty, regard to the right to development.
national unity and territorial integrity, threats of war and the refusal to
otherwise recognize the fundamental right of peoples to self-determination. Article 10 – Obligation to respect
6. Nothing contained in the present Convention shall be construed as States Parties undertake to refrain from conduct, whether expressed through
authorizing or encouraging any action which would dismember or impair, law, policy or practice, that:
totally or in part, the territorial integrity or political unity of sovereign and
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 52
(a) Nullifies or impairs the enjoyment and exercise of the right to development priorities and to implement them in a manner consistent with
development within or outside their territories; the provisions of the present Convention.
(b) Impairs the ability of another State or international organization to comply
with that State’s or that international organization’s obligations with regard to Article 13 – Duty to cooperate
the right to development; 1. States Parties reaffirm and undertake to implement their duty to cooperate
(c) Aids, assists, directs, controls or coerces, with knowledge of the with each other, through joint and separate action, in order to:
circumstances of the act, another State or international organization to (a) Solve international problems of an economic, social, cultural,
breach that State’s or that international organization’s obligations with regard environmental or humanitarian character;
to the right to development; (b) Promote higher standards of living, full employment, and conditions of
(d) Causes an international organization of which it is a member to commit economic and social progress and development;
an act that, if committed by the State Party, would constitute a breach of its (c) Promote solutions of international economic, social, health and related
obligation under the present Convention and the State Party does so to problems, and to promote international cultural and educational cooperation;
circumvent that obligation by taking advantage of the fact that the (d) Promote and encourage universal respect for human rights and
international organization has competence in relation to its subject matter. fundamental freedoms for all, without discrimination on any ground.
Article 11 – Obligation to protect 2. To this end, States Parties recognize their primary responsibility for the
States Parties shall adopt and enforce all necessary and appropriate creation of international conditions favourable to the realization of the right to
measures, including administrative, legislative, investigative, judicial, development for all, and undertake to take deliberate, concrete and targeted
diplomatic or others, to ensure that human or legal persons, groups or any steps, separately and jointly, including through cooperation within
other State or its agents they are in a position to regulate do not nullify or international organizations, and as appropriate, in partnership with civil
impair the enjoyment and exercise of the right to development within or society:
outside their territories when: (a) To ensure that human and legal persons, groups and States do not
(a) Such conduct originates from or occurs on the territory of the State Party; impair the enjoyment of the right to development;
(b) The human or legal person has the nationality of the State Party; (b) To ensure that obstacles to the full realization of the right to development
(c) The legal person conducting business activities, including those of a are eliminated in all international legal instruments, policies and practices;
transnational character, is domiciled in the State Party, by virtue of having its (c) To ensure that the formulation, adoption and implementation of all
place of incorporation, statutory seat, central administration or substantial international legal instruments, policies and practices are consistent with the
business interests in that State Party. objective of fully realizing the right to development for all;
(d) To formulate, adopt and implement appropriate international legal
Article 12 – Obligation to fulfil instruments, policies and practices aimed at the progressive enhancement
1. Each State Party undertakes to take measures, individually and through and full realization of the right to development for all;
international assistance and cooperation, with a view to progressively (e) To mobilize appropriate technical, technological, financial, infrastructural
enhancing the right to development, without prejudice to their obligations to and other necessary resources to enable States Parties, particularly those
respect and protect the right to development contained in articles 10 and 11 with limited availability of or access to these resources, to fulfil their
or to those obligations contained in the present Convention that are of obligations under the present Convention.
immediate effect. States Parties may take such measures through any
appropriate means, including in particular the adoption of legislative 3. States Parties undertake to ensure that financing for development, and all
measures. other forms of aid and assistance given or received by them, whether
2. States Parties recognize that each State has the right, on behalf of its bilateral, or under any institutional or other international framework, are
peoples, and also the duty to formulate, adopt and implement appropriate consistent with the provisions of the present Convention.
national development laws, policies and practices in conformity with the right
to development and aimed at its full realization. To that end, States Parties 4. States Parties recognize their duty to cooperate to create a social and
undertake to refrain from nullifying or impairing, including in matters relating international order conducive to the realization of the right to development
to cooperation, aid, assistance, trade or investment, the exercise of the right by, inter alia:
and discharge of the duty of every State Party to determine its own national
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(a) Promoting a universal, rules-based, open, non-discriminatory and other disadvantages, including of an economic, technical or infrastructural
equitable multilateral trading system; nature, may require special or remedial measures through mutually agreed
(b) Implementing the principle of special and differential treatment for international legal instruments, policies and practices for ensuring equal
developing countries, in particular least developed countries, in accordance enjoyment of the right to development by all human persons and peoples.
with relevant trade agreements; Such measures may, as appropriate, include:
(c) Improving the regulation and monitoring of global financial markets and (a) Recognition of common but differentiated responsibilities, taking into
institutions, and strengthening the implementation of such regulations; account different national circumstances;
(d) Ensuring enhanced representation and voice for developing countries in (b) The provision of special and differential treatment;
decision-making in global international economic and financial institutions in (c) Preferential terms on trade, investment and finance;
order to deliver more effective, credible, accountable and legitimate (d) The creation of special funds or facilitation mechanisms;
institutions; (e) The facilitation and mobilization of financial, technical, technological,
(e) Encouraging official development assistance and financial flows, infrastructural, capacity-building or other assistance;
including foreign direct investment, to States where the need is greatest, in (f) Other mutually agreed measures consistent with the provisions of the
particular least developed countries, African countries, small island present Convention.
developing States and landlocked developing countries, in accordance with
their national plans and programmes; Article 16 – Gender equality
(f) Enhancing North-South, South-South and triangular regional and 1. States Parties, in accordance with their obligations under international
international cooperation on and access to science, technology and law, shall ensure full gender equality for all women and men, and undertake
innovation, and enhancing also knowledge-sharing on mutually agreed to take measures, including through temporary special measures as and
terms, including through improved coordination among existing mechanisms, when appropriate, to end all forms of discrimination against all women and
in particular at the United Nations level, and through a global technology girls everywhere so as to ensure their full and equal enjoyment of the right to
facilitation mechanism; development.
(g) Promoting the development, transfer, dissemination and diffusion of 2. To that end, States Parties undertake to take appropriate measures,
environmentally sound technologies to developing countries on favourable separately and jointly, inter alia:
terms, including on concessional and preferential terms, as mutually agreed; (a) To eliminate all forms of violence and harmful practices against all
(h) Facilitating orderly, safe, regular and responsible migration and mobility women and girls in the public and private spheres;
of people, including through the implementation of planned and well- (b) To ensure women’s full and effective participation and equal
managed rights-based migration policies. opportunities for leadership at all levels in the conceptualization, decision-
making, implementation, monitoring and evaluation of policies and
Article 14 – Coercive measures programmes in political, economic and public life, and within legal persons;
1. The use or encouragement of the use of economic, political or any other (c) To adopt and strengthen policies and enforceable legislation for the
type of measure to coerce a State in order to obtain from it the subordination promotion of gender equality and the empowerment of all women and girls at
of the exercise of its sovereign rights in violation of the principles of the all levels;
sovereign equality of States and freedom of consent constitutes a violation of (d) To mainstream gender perspectives in the formulation, adoption and
the right to development. implementation of all national laws, policies and practices and international
2. States Parties shall refrain from adopting, maintaining or implementing the legal instruments, policies and practices;
measures referred to in paragraph 1. (e) To ensure equal and equitable access to resources necessary for the full
realization of the right to development by women and girls everywhere.
Article 15 – Special or remedial measures
1. States Parties recognize that certain human persons, groups and peoples, Article 17 – Indigenous and tribal peoples
owing to their age, disability, marginalization, vulnerability, indigeneity or 1. Indigenous and tribal peoples have the right to freely pursue their
minority status, may require special or remedial measures to accelerate or economic, social and cultural development. They have the right to determine
achieve de facto equality in their enjoyment of the right to development. and develop priorities and strategies for exercising their right to
2. States Parties recognize that developing and vulnerable States, owing to development.
historical injustices, conflicts, environmental hazards, climate change or
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 54
2. States Parties shall consult and cooperate in good faith with the 1. States Parties reaffirm their existing obligations under international law to
indigenous and tribal peoples concerned through their own representative promote the establishment, maintenance and strengthening of international
institutions in order to obtain their free, prior and informed consent before peace and security in consonance with the principles and obligations
adopting and implementing legislative or administrative measures that may contained in the Charter of the United Nations, including the peaceful
affect them. settlement of disputes.
2. To that end, States Parties undertake to pursue collective measures with
Article 18 – Prohibition of limitations on the enjoyment of the right to the objective of achieving general and complete disarmament under strict
development and effective international control so that the world’s human, ecological and
States Parties recognize that the enjoyment of the right to development may economic resources can be used for the full realization of the right to
not be subject to any limitations except insofar as they may result directly development for all.
from the exercise of limitations on other human rights applied in accordance
with international law. Article 22 – Sustainable development
States Parties, individually and jointly, undertake to ensure that:
Article 19 – Impact assessments (a) Laws, policies and practices relating to development at the national and
1. States Parties undertake to take appropriate steps, individually and jointly, international levels pursue and contribute to the realization of sustainable
including within international organizations, to establish legal frameworks for development;
conducting prior and ongoing assessment of actual and potential risks and (b) Their decisions and actions do not compromise the ability of future
impact of their national laws, policies and practices and international legal generations to realize their right to development;
instruments, policies and practices, and of the conduct of legal persons (c) The formulation, adoption and implementation of all such laws, policies
which they are in a position to regulate to ensure compliance with the and practices aimed at realizing sustainable development are made fully
provisions of the present Convention. consistent with the provisions of the present Convention.
2. States Parties shall take into account any further guidelines, best
practices or recommendations that the Conference of States Parties may Article 23 – Harmonious interpretation
provide with respect to impact assessments. 1. Nothing in the present Convention shall be interpreted as impairing the
provisions of the Charter of the United Nations and of the constitutions of the
Article 20 – Statistics and data collection specialized agencies which define the respective responsibilities of the
1. States Parties undertake to collect appropriate information, including various organs of the United Nations and of the specialized agencies in
statistical and research data, to enable them to formulate and implement regard to the matters dealt with in the present Convention. To that end, the
policies to give effect to the present Convention. The process of collecting United Nations and its specialized agencies are under an obligation to
and maintaining this information shall: promote the right to development.
(a) Comply with legally established safeguards, including legislation on data 2. The provisions of the present Convention shall not affect the rights and
protection, to ensure confidentiality and respect for privacy; obligations of any State Party deriving from any existing international
(b) Comply with internationally accepted norms to protect human rights and agreements, except where the exercise of those rights and obligations would
fundamental freedoms and ethical principles in the collection and use of contravene the object and purpose of this Convention. The present
statistics. paragraph is not intended to create a hierarchy between the present
2. The information collected in accordance with the present article shall be Convention and other international agreements.
disaggregated, as appropriate, and used to help to assess the
implementation of States Parties’ obligations under the present Convention Part IV – Conference of States Parties;
and to identify and address the obstacles to the full realization of the right to Part V – Signature, etc.
development.
3. States Parties shall assume responsibility for the dissemination of these GENERAL COMMENT NO. 14: RIGHT TO THE HIGHEST ATTAINABLE
statistics in a manner consistent with the objective of fully realizing the right STANDARD OF HEALTH (Art. 12)
to development for all.
Recognized in numerous international instruments:
Article 21 – International peace and security
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 55
Art. 25.1 of UDHR “Everyone has the right to a standard of living mental and social well-being and not merely the absence of disease
adequate for the health of himself and of his or infirmity”)
family, including food, clothing, housing and - Not confined to healthcare; but embraces a wide range of socio-
medical care and necessary social services” economic factors that promote conditions in which people can lead
Art. 12.1 of ICESCR the right of everyone to the enjoyment of the a healthy life, and extends to the underlying determinants of health,
highest attainable standard of physical and such as food and nutrition, housing, access to safe and potable
mental health water and adequate sanitation, safe and healthy working
Art. 12.2 of ICESCR steps to be taken by the States parties ... to conditions, and a healthy environment.
achieve the full realization of this right
Art. 5(e)(iv) of (iv) The right to public health, medical care, 1. Normative Content of Art. 12
International Convention social security and social services; Article 12
on the Elimination of All 1. The States Parties to the present Covenant recognize the right of
Forms of Racial Discrim. everyone to the enjoyment of the highest attainable standard of physical
Art. 11.1(f) and 12 of 1. States Parties shall take all appropriate and mental health.
convention on the measures to eliminate discrimination against 2. The steps to be taken by the States Parties to the present Covenant to
Elimination of All Forms women in the field of health care in order to achieve the full realization of this right shall include those necessary for:
of Discrim. against ensure, on a basis of equality of men and (a) The provision for the reduction of the stillbirth-rate and of infant mortality
Women women, access to health care services, and for the healthy development of the child;
including those related to family planning. (b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational
2. Notwithstanding the provisions of and other diseases;
paragraph I of this article, States Parties shall (d) The creation of conditions which would assure to all medical service and
ensure to women appropriate services in medical attention in the event of sickness.
connection with pregnancy, confinement and
the post-natal period, granting free services - Not to be understood as a right to be healthy
where necessary, as well as adequate - Contains both freedoms and entitlements
nutrition during pregnancy and lactation. Freedoms Entitlements
Art. 24 of CRC States Parties recognize the right of the child Right to control one’s health and right to a system of health
to the enjoyment of the highest attainable body, including sexual and protection which provides equality
standard of health and to facilities for the reproductive freedom, and the right of opportunity for people to enjoy
treatment of illness and rehabilitation of to be free from interference, such the highest attainable level of
health. States Parties shall strive to ensure as the right to be free from torture, health.
that no child is deprived of his or her right of non-consensual medical treatment
access to such health care services. and experimentation.
The right to health is closely related to and dependent upon the “the highest attainable standard of health”
realization of other human rights, as contained in the International Bill of - into account both the individual’s biological and socio-economic
Rights, including the rights to food, housing, work, education, human dignity, preconditions and a State’s available resources
life, non-discrimination, equality, the prohibition against torture, privacy, - genetic factors, individual susceptibility to ill health and the adoption
access to information, and the freedoms of association, assembly and of unhealthy or risky lifestyles may play an important role with
movement. respect to an individual’s health.
- Did not adopt the definition of health in the preamble to the Many more developments
Constitution of WHO (health as “a state of complete physical, - More determinants of health
- Wider definition of health
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- Formerly unknown diseases (i.e. HIV/AIDS) – become more Article 12.2(a): The right to maternal, child and reproductive health
widespread understood as requiring measures to improve child and maternal health,
sexual and reproductive health services, including access to family planning,
Right to health pre- and post-natal care, emergency obstetric services and access to
- inclusive right extending not only to timely and appropriate health information, as well as to resources necessary to act on that information
care but also to the underlying determinants of health, such as
access to safe and potable water and adequate sanitation, an Article 12.2(b): The right healthy natural and workplace environments
adequate supply of safe food, nutrition and housing, healthy comprises, inter alia, preventive measures in respect of occupational
occupational and environmental conditions, and access to health- accidents and diseases; the requirement to ensure an adequate supply of
related education and information, including on sexual and safe and potable water and basic sanitation; the prevention and reduction of
reproductive health. the population’s exposure to harmful substances such as radiation and
harmful chemicals or other detrimental environmental conditions that directly
MIDTERM ALERT! or indirectly impact upon human health.
Elements of Right to health:
a. Availability - available in sufficient quantity within the State party Article 12.2(c): The right to prevention, treatment and control of
b. Accessibility - to be accessible to everyone without discrimination, diseases
within the jurisdiction of the State party; four overlapping requires the establishment of prevention and education programs for
dimensions: behavior-related health concerns such as sexually transmitted diseases, in
i. Non-discrimination- especially the most vulnerable or particular HIV/AIDS, and those adversely affecting sexual and reproductive
marginalized sections of the population, in law and in fact, health, and the promotion of social determinants of good health, such as
without discrimination on any of the prohibited grounds environmental safety, education, economic development and gender equity;
ii. Physical accessibility- must be within safe physical reach includes the creation of a system of urgent medical care in cases of
for all sections of the population; Accessibility further accidents, epidemics and similar health hazards, and the provision of
includes adequate access to buildings for persons with disaster relief and humanitarian assistance in emergency situations
disabilities; - Control of diseases – refers to States’ individual and joint efforts
iii. Economic accessibility (affordability) – must be affordable to, inter alia, make available relevant technologies, using and
for all; has to be based on the principle of equity, ensuring improving epidemiological surveillance and data collection on a
that these services, whether privately or publicly provided, disaggregated basis, the implementation or enhancement of
are affordable for all, including socially disadvantaged immunization programs and other strategies of infectious disease
groups control
iv. Information accessibility – right to seek, receive and impart
information and ideas concerning health issues; not Article 12.2(d): The right to health facilities, goods and services
treated as to impair the right to have personal health data includes the provision of equal and timely access to basic preventive,
treated with confidentiality curative, rehabilitative health services and health education; regular
c. Acceptability – must be respectful of medical ethics and culturally screening programs; appropriate treatment of prevalent diseases, illnesses,
appropriate, i.e. respectful of the culture of individuals, minorities, injuries and disabilities, preferably at community level; the provision of
peoples and communities, sensitive to gender and life-cycle essential drugs; and appropriate mental health treatment and care.
requirements, as well as being designed to respect confidentiality
and improve the health status Article 12: Special Topics of Broad Application
d. Quality – scientifically and medically appropriate and of good Non-discrimination and equal treatment
quality; skilled medical personnel, scientifically approved and - Covenant proscribes any discrimination in access to health care
unexpired drugs and hospital equipment, safe and potable water, and underlying determinants of health, as well as to means and
and adequate sanitation. entitlements for their procurement, on the grounds of race, colour,
sex, language, religion, political or other opinion, national or social
origin, property, birth, physical or mental disability, health status
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(including HIV/AIDS), sexual orientation and civil, political, social or based on periodical check-ups for both sexes; physical as well as
other status, which has the intention or effect of nullifying or psychological rehabilitative measures aimed at maintaining the
impairing the equal enjoyment or exercise of the right to health. functionality and autonomy of older persons; and attention and care
- equality of access to health care and health services has to be for chronically and terminally ill persons, sparing them avoidable
emphasized pain and enabling them to die with dignity
- special obligation to provide those who do not have sufficient
means with the necessary health insurance and health-care PWD
facilities, and to prevent any discrimination on internationally need to ensure that not only the public health sector but also private
prohibited grounds in the provision of health care and health providers of health services and facilities comply with the principle of non-
services, especially with respect to the core obligations of the right discrimination
to health
Indigenous Peoples
Gender Perspective - should be culturally appropriate, taking into account traditional
- integrate a gender perspective in their health-related policies, preventive care, healing practices and medicines
planning, programs and research in order to promote better health - provide resources for indigenous peoples to design, deliver and
for both women and men control such services so that they may enjoy the highest attainable
standard of physical and mental health.
Women and the right to health
- include interventions aimed at the prevention and treatment of Limitations
diseases affecting women, as well as policies to provide access to The States Parties to the present Covenant recognize that, in the enjoyment
a full range of high quality and affordable health care, including of those rights provided by the State in conformity with the present
sexual and reproductive services Covenant, the State may subject such rights only to such limitations as are
- requires the removal of all barriers interfering with access to health determined by law only in so far as this may be compatible with the nature of
services, education and information, including in the area of sexual these rights and solely for the purpose of promoting the general welfare in a
and reproductive health. democratic society.
- undertake preventive, promotive and remedial action to shield - Covenant’s limitation clause, article 4, is primarily intended to
women from the impact of harmful traditional cultural practices and protect the rights of individuals rather than to permit the imposition
norms that deny them their full reproductive rights. of limitations by States
- Such restrictions must be in accordance with the law, including
Children and adolescents international human rights standards, compatible with the nature of
- ensuring access to child-friendly information about preventive and the rights protected by the Covenant, in the interest of legitimate
health-promoting behaviour and support to families and aims pursued, and strictly necessary for the promotion of the
communities in implementing these practices general welfare in a democratic society.
- requires that girls, as well as boys, have equal access to adequate - must be proportional, i.e. the least restrictive alternative must be
nutrition, safe environments, and physical as well as mental health adopted where several types of limitations are available; should be
services of limited duration and subject to review
- provide a safe and supportive environment for adolescents, that
ensures the opportunity to participate in decisions affecting their 2. States parties’ obligations
health, to build life skills, to acquire appropriate information, to
receive counselling and to negotiate the health-behaviour choices General Legal obligations
they make - Which are of immediate effect
o Immediate obligations such as right will be exercised
Older Persons without discrimination of any kind and to take steps
- reaffirms the importance of an integrated approach, combining towards the full realization
elements of preventive, curative and rehabilitative health treatment;
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o Must be deliberate, concrete, and targeted towards the full medicines, from standards of counselling and
realization marketing unsafe education, skill and mental health
o progressive realization means that States parties have a drugs and from ethical codes of services, with due
specific and continuing obligation to move as expeditiously applying coercive conduct. regard to equitable
and effectively as possible towards the full realization of medical treatments, distribution throughout
article 12 unless on an to ensure that harmful the country.
Right to health, like all human rights, imposes three types or levels of exceptional basis for social or traditional
obligations on States parties: the obligations to respect, protect and fulfil the treatment of practices do not
To respect requires States to refrain from interfering directly or mental illness or the interfere with access
indirectly with the enjoyment of the right to health prevention and control to pre- and post-natal
To protect requires States to take measures that prevent third of communicable care and family
parties from interfering with article 12 guarantees diseases. planning; to prevent
To fulfil requires States to adopt appropriate legislative, third parties from
administrative, budgetary, judicial, promotional and refrain from limiting coercing women to
other measures towards the full realization of the access to undergo traditional
right to health. contraceptives and practices, e.g. female
other means of genital mutilation; and
Specific legal obligations maintaining sexual to take measures to
To Respect To protect To fulfill and reproductive protect all vulnerable
refraining from To adopt legislation or to give sufficient health, from or marginalized
denying or limiting to take other recognition to the right censoring, withholding groups of society, in
equal access for all measures ensuring to health in the or intentionally particular women,
persons, including equal access to health national political and misrepresenting children, adolescents
prisoners or care and health- legal systems, health-related and older persons, in
detainees, minorities, related services preferably by way of information, including the light of gender-
asylum-seekers and provided by third legislative sexual education and based expressions of
illegal immigrants, to parties; to ensure that implementation, and to information, as well as violence. States
preventive, curative privatization of the adopt a national health from preventing should also ensure
and palliative health health sector does not policy with a detailed people’s participation that third parties do
services; abstaining constitute a threat to plan for realizing the in health-related not limit people’s
from enforcing the availability, right to health matters. access to health-
discriminatory accessibility, related information
practices as a State acceptability and to ensure the and services.
policy; and abstaining quality of health appropriate training of
from imposing facilities, goods and doctors and other OBLIGATION TO FULFILL
discriminatory services; to control the medical personnel, the Facilitate requires States inter alia to take positive measures that
practices relating to marketing of medical provision of a enable and assist individuals and communities to enjoy
women’s health status equipment and sufficient number of the right to health
and needs. medicines by third hospitals, clinics and Provide specific right contained in the Covenant when
parties; and to ensure other health-related individuals or a group are unable, for reasons beyond
refrain from prohibiting that medical facilities, and the their control, to realize that right themselves by the
or impeding traditional practitioners and other promotion and support means at their disposal
preventive care, health professionals of the establishment of
healing practices and meet appropriate institutions providing
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 59
Promote right to health requires States to undertake actions that restricting the supply of another State with adequate medicines and
create, maintain and restore the health of the medical equipment.
population, include:
i) fostering recognition of factors favouring Core Obligations
positive health results, e.g. research and - ensure the satisfaction of, at the very least, minimum essential
provision of information; levels of each of the rights enunciated in the Covenant, including
ii) ensuring that health services are culturally essential primary health care
appropriate and that health-care staff are These include:
trained to recognize and respond to the a. To ensure the right of access to health facilities, goods and services
specific needs of vulnerable or on a non-discriminatory basis, especially for vulnerable or
marginalized groups; marginalized groups;
iii) ensuring that the State meets its b. To ensure access to the minimum essential food which is
obligations in the dissemination of nutritionally adequate and safe, to ensure freedom from hunger to
appropriate information relating to healthy everyone;
lifestyles and nutrition, harmful traditional c. To ensure access to basic shelter, housing and sanitation, and an
practices and the availability of services; adequate supply of safe and potable water;
iv) supporting people in making informed d. To provide essential drugs, as from time to time defined under the
choices about their health. WHO Action Programme on Essential Drugs;
e. To ensure equitable distribution of all health facilities, goods and
International Obligations services;
- recognize the essential role of international cooperation and comply f. To adopt and implement a national public health strategy and plan
with their commitment to take joint and separate action to achieve of action, on the basis of epidemiological evidence, addressing the
the full realization of the right to health health concerns of the whole population; the strategy and plan of
- Alma-Ata Declaration which proclaims that the existing gross action shall be devised, and periodically reviewed, on the basis of a
inequality in the health status of the people, particularly between participatory and transparent process; they shall include methods,
developed and developing countries, as well as within countries, is such as right to health indicators and benchmarks, by which
politically, socially and economically unacceptable and is, therefore, progress can be closely monitored; the process by which the
of common concern to all countries. strategy and plan of action are devised, as well as their content,
- to respect the enjoyment of the right to health in other countries, shall give particular attention to all vulnerable or marginalized
and to prevent third parties from violating the right in other groups.
countries, if they are able to influence these third parties by way of Also of comparable priority:
legal or political means, in accordance with the Charter of the a. To ensure reproductive, maternal (prenatal as well as post-natal)
United Nations and applicable international law. and child health care;
- States parties should ensure that the right to health is given due b. To provide immunization against the major infectious diseases
attention in international agreements and, to that end, should occurring in the community;
consider the development of further legal instruments. c. To take measures to prevent, treat and control epidemic and
- States parties which are members of international financial endemic diseases;
institutions, notably the International Monetary Fund, the World d. To provide education and access to information concerning the
Bank, and regional development banks, should pay greater main health problems in the community, including methods of
attention to the protection of the right to health in influencing the preventing and controlling them;
lending policies, credit agreements and international measures of e. To provide appropriate training for health personnel, including
these institutions. education on health and human rights.
- Joint and individual responsibility Each State should contribute emphasize that it is particularly incumbent on States parties and other actors
to this task to the maximum of its capacities. States parties should in a position to assist, to provide “international assistance and
refrain at all times from imposing embargoes or similar measures cooperation, especially economic and technical”
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o In Soobramoney: rationing of access to life-prolonging - restrictions must be calibrated so as to “flatten the curve” of
resources is regarded as integral to, rather than infection, or keep that curve flat, and avoid a swamped hospital
incompatible with, a human rights approach to health care. system
- BUT it does not itself justify governmental decisions regarding the
OVERALL availability of the relevant resources – both before and Part C: The Future – A vaccine, guinea pigs, and prioritization
during the crisis A question arises over the rights of the “guinea pigs” who are tested.
o more rigorous investigation of the reasonableness of a Untested medicines can cause terrible side effects, again threatening rights
health rationing decision would take into account not only to life and health.
the basis of the triaging choices, but also the overall - Must give their informed consent
reasonableness of the budget allocated for the rationed - Ethical procedures and safety measures must be followed
good or service
New human rights issues will arise if and when a vaccine is available. On
Part B(b): The Present – Fortresses, Shutdowns, Quarantines, and what basis will people be prioritised to receive it? After all, the vaccine could
Timely Testing be a ticket to restoration of civil liberties and economic freedoms, as well as
- Borders have been closed – to stop or slow the spread of virus protection against a life threatening disease.
- Social distancing – mandated – people must keep a certain - Those states with the most efficient and wealthy healthy systems –
distance away from each other most likely will be prioritized – can manufacture the vaccine and
- All of these measures entail extraordinary restrictions on numerous can manage mass vaccination
human rights, including the freedoms of association, assembly,
movement and from arbitrary detention The vaccine could be developed and/or manufactured in whole or in part by
- Millions have been deprived of their livelihoods, threatening rights the private sector. Drug companies, as private actors, do not have direct
to work and to an adequate standard of living. human rights obligations under international human rights law, but States
o The lockdowns are retrogressive measures, but they might have obligations to ensure that the private sector complies with human rights
be justified in order to promote public health in a pandemic
- While the promotion of public health is a legitimate purpose for Part D: Conclusion
limiting human rights, restrictive measures must nevertheless be Firstly, a greater degree of freedom of expression and freedom of
proportionate. information in China at the dawn of the crisis in “the past” may have
- A general requirement for limitations to ICCPR rights is that prevented its snowballing within China and across the world.
they be provided or prescribed by law, which means that restrictive
measures must be established in an accessible and circumscribed Secondly, in the “present” stage of the crisis, States are navigating
law different ways of containing the virus: numerous human rights are
o Principle of legality being restricted including rights regarding assembly, association,
o BUT now, muddied by confusing and contradictory detention, movement, employment, and of access to scarce health
statements by the government and inconsistent resources
enforcement by police - Many may be justified in compliance with human rights –
o Target going out than social interaction THOUGH calibration will be needed
§ Thus: DISPROPORTIONATE in criminalizing
ordinary behavior – e.g. sitting on a park bench Finally, the “future” development of a vaccine will usher in new
alone (which does not spread the virus) human rights conundrums, including questions regarding the rights of
- Respect for and enjoyment of human rights are ends in themselves, those upon whom candidate vaccines are tested, and the rights of
rather than means to ends. everyone to access what could be the most anticipated medical
o complete opening up of societies so as to let the virus “rip” innovation in history.
through the population, which would likely cause tens to
hundreds of thousands of deaths, would breach the right
to life.
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ADVISORY 1: HUMAN RIGHTS IN THE TIME OF COVID-19 - Response must continue to incorporate elements of disaster
COMMISSION ON HUMAN RIGHTS, 2020 response
- Human rights standards should be mainstreamed at all stages of
Actions restricting the movement of people are valid restrictions in this health programming
time of public health emergency. o Participation, accountability, non-discrimination,
- BUT obligation of government in undertaking measures – MUST transparency, equality, rule of law
be: Right-holder Duty-bearers
o Lawful Everyone BUT: Government
o Necessary Must also recognize inter-related - Policy makers
o Proportionate human rights standards and - Local chief executives
Ensure that all are enabled to enjoy their human rights identification of groups suffering - Hospital managers
Disadvantaged, marginalized, and vulnerable sectors – must be given due from a greater denial of rights - Health professionals
consideration - Inspectors
Appeal to: - Legislators
- Harmonize actions to provide accessible, accurate, and clear - Reiteration of elements of right to health: availability, accessibility,
information on all health-related matters and about restrictions on acceptability, and quality
the freedom of movement
Recommendations
On the Right to the Highest Attainable Standard of Physical and Mental Availability - Ensure that kits are available, preferably free
Health of charge for all
Ensuring the People’s Right to Health as State Responsibility and Obligation - PPEs are currently insufficient – supplies
- WHO: right to health for all people means that everyone should must be prioritized for front liners.
have access to the health services they need, when and where they Government must coordinate with private
need them, without suffering financial hardship. sector for the production and procurement of
- Art. 2, Sec 14 of PH Const.: State to protect and promote the right PPEs.
to health of the people and instill health consciousness among them - To make water available for all at all times,
- Art 12 of ICESCR: right of everyone to the enjoyment of the highest for hygiene
attainable standard of physical and mental health - Emergency and critical care triage capacities
o May be pursued through numerous, complementary be augmented as a special measure
approaches, such as: formulation of health policies, - Front liner be given full financial aid
implementation of health programs, adoption of specific Accessibility - Access should not be impeded; government
legal instruments must ensure on its own or in coordination
o Embraces a wide range of socio-economic factors – with the private sector that those who have
promote conditions in which people can lead a healthy life, fallen ill, under investigation, and under
and extends to underlying determinants of health (food, monitoring – provided access to medical
housing, access to safe and potable water, adequate services
sanitation) - To make safe and clean water facilities
- PH has core obligations, which are: physically accessible throughout the country
a. Access to health facilities, goods and services on a non- - Food and other essential goods should be
discriminatory basis given unimpeded access through
b. Provision of essential drugs checkpoints and delivery be exempted
c. Equitable distribution of all health facilities - Transparent and accountable scheme of
d. Adoption and implementation of a national public health prioritization be implemented for testing and
strategy and plan of action treatment
HUMAN RIGHTS 3D | ATTY. TEMPROSA CASTILLO | 64
- Access to information
- Fighting fake news and false information with
proper information through campaigns that
debunk myths
- Translations into dialects, dissemination via
traditional media and local information
dissemination targeting
- Feedback channels must be established and
enabled
Acceptability - Health interventions be tailored as widely as
possible for people to accept them, and in
certain occasions, specific enough for
targeted groups
- Inter-agency cooperation to safeguard
privacy of the person
Quality - Calls on Congress to allot adequate
resources for the health sector to ensure
quality health care, with all appropriate
measures in line
o Ratio: resource constraints hamper
the provision of quality health care