WOMEN, CHILDREN, AND THE LAW

LESSON 1: BASIC PRINCIPLES OF HUMAN RIGHTS AND INTERNATIONAL LAW HUMAN RIGHTS, DEFINED: (1) HDR definition: rights possessed by all persons, by virtue of their common humanity, to live a life of freedom and dignity. Other definitions: (2) UN definition: those rights which are inherent in our nature, and without which we cannot live as human beings; human rights and fundamental freedoms allow us to develop and use our human qualities, intelligence, talents and conscience, and to satisfy our spiritual and other needs. (3) PH CHR definition: those rights which are supreme, inherent, and inalienable rights to life, dignity, and self-development; the essence of these rights makes man human. BASIC CHARACTERISTICS RIGHTS: OF HUMAN Re: A4, ICCPR: Derogable rights are those which states can suspend/restrict under certain circumstances, to enable said state to respond to a serious public emergency which threatens its life and existence. Any derogation must be (1) for a limited period of time, (2) proportionate to the emergency, and (3) non-discriminatory. Any right that is absolute is also non-derogable, i.e. cannot be suspended even in a declared state of emergency. In addition to the above enumeration on absolute rights are more non-derogable rights: (a) right to life (see A4[2]) (b) freedom from medical/scientific experimentation w/o consent (see A4[2]) (c) freedom of thought, conscience, religion (see A4[2]) The following come not from the ICCPR but from the HRC's General Comment 29: (d) right of persons deprived ofliberty to be treated w/ humanity and respect for the inherent dignity of the human person (e) some elements of the rights of persons belonging to ethnic/religious/linguistic minorities (f) prohibition against taking hostages, abductions, or unacknowledged detention (g) prohibition on propaganda for war and advocacy of national/racial/religious hatred constituting incitement to discrimination/hostility/violence ABSOLUTE AND NON-ABSOLUTE RIGHTS: Absolute rights cannot be limited in any way, at any time, for any reason. Absolute rights under the ICCPR include: (a) freedom from torture and other cruel, inhuman, or degrading treatment or punishment (A7) (b) freedom from slavery/servitude (A8[1],[2]) (c) prohibition on genocide (A6[3]) (d) freedom from prolonged arbitrary detention (see A9[1]) (e) freedom from imprisonment for failure to fulfill a contractual obligation (A11) (f) prohibition on retrospective operation of penal laws (A15) (g) right to be recognized everywhere as a person before the law (A16) (h) freedom from systematic racial discrimination (see A2[1], A26) DEROGABLE AND NON-DEROGABLE RIGHTS:

(1) Inherent: they are not granted by any person or authority. (2) Fundamental: without them, the life and dignity of man will be meaningless. (3) Inalienable: a. cannot be rightfully taken away from a free individual. b. cannot be given away or be forfeited. (4) Imprescriptible: a. do not prescribe. b. cannot be lost even if man fails to use or assert them, even by a long passage of time. (5) Indivisible: a. not capable of being divided. b. cannot be denied even when other rights have already been enjoyed. (6) Universal: a. universal in application. b. applies irrespective of ones origin, status, or condition or place where one lives. c. without national border. (7) Interdependent: fulfillment/exercise of one cannot be had w/o the realization of the other. PUBLIC POLICY: system of laws, regulatory measures, courses of action, and funding priorities concerning a given topic promulgated by a governmental entity or its representatives.

(h) prohinition against re-introduction of the death penalty if it has been abolished INTERNATIONAL DECLARATIONS INTERNATIONAL CONVENTIONS: vs.

INTERNATIONAL INTERNATIONAL DECLARATION CONVENTION Not legally binding Legally binding although they may be instruments politically so as soft concluded under law international law International treaties and even declarations can, over time, obtain the status of customary international law (see next page). WHEN DOES A STATE BECOME A STATEPARTY TO AN INTERNATIONAL AGREEMENT? A treaty is an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whetever its particular designation. A state becomes a state-party to a treaty by doing: (a) Negotiation (b) Authentication (c) Expression of consent to be bound By way of signature By way of exchange of instruments By way of ratification, acceptance, or approval WHEN IS A TREATY ENTERED INTO FORCE? GR: XPN:

and specifically 'transformed' into municipal law by the use of the appropriate constitutional machinery (e.g. making equivalent domestic legislation, ratification, etc.) the Philippines follows the doctrine of transformation in the case of treaties, by way of the Constitutional ratification mechanism c/o the Senate (2) Incorporation: a country is bound by generally accepted principles of international law, which are considered to be automatically part of its own laws the Philippines follows the doctrine of incorporation in case of customary law (including treaties which have reached custom status) WHAT ARE THE REQUISITES FOR CUSTOMARY INTERNATIONAL LAW TO BE PRESENT? (1) State practice (usus) (2) Opinio juris WHO/WHAT DEEMS A GENERALLY ACCEPTED? PRINCIPLE AS

Courts, both domestic and international, deem what principles of international law are generally accepted. LESSON 2: INTERNATIONAL CONVENTIONS ON HUMAN RIGHTS UNIVERSAL DECLARATION ON HUMAN RIGHTS: What follows is a simplified version of the UDHR provisions specifically made for young people (lels):

This simplified version of the 30 Articles of the Date agreed upon by the parties If no date is indicated, once consent has been given Universal Declaration of Human Rights has been created especially for young people. RE: ART. II, SEC. 2, 1987 CONSTITUTION: a. We Are All Born Free & Equal. We are all WHAT ARE THESE GENERALLY ACCEPTED born free. We all have our own thoughts and PRINCIPLES OF INTERNATIONAL LAW? ideas. We should all be treated in the same way. Generally accepted principles of international law b. Dont Discriminate. These rights belong to refers to norms of general or customary international everybody, whatever our differences. law which are binding on all states (i.e., renunciation c. The Right to Life. We all have the right to of war as an instrument of national policy, the life, and to live in freedom and safety. principle of sovereign immunity, a persons right to d. No Slavery. Nobody has any right to make us life, liberty and due process, and pacta sunt servanda, a slave. We cannot make anyone our slave. among others). e. No Torture. Nobody has any right to hurt us or to torture us. HOW DOES INTERNATIONAL LAW BECOME f. You Have Rights No Matter Where You PART OF THE LAW OF THE LAND? Go. I am a person just like you! g. Were All Equal Before the Law. The law is (1) Transformation: before any rule or principle the same for everyone. It must treat us all of international law can have any effect within fairly. the domestic jurisdiction, it must be expressly

h. Your Human Rights Are Protected by Law. We can all ask for the law to help us when we are not treated fairly. i. No Unfair Detainment. Nobody has the right to put us in prison without good reason and keep us there, or to send us away from our country. j. The Right to Trial. If we are put on trial this should be in public. The people who try us should not let anyone tell them what to do. k. Were Always Innocent Till Proven Guilty. Nobody should be blamed for doing something until it is proven. When people say we did a bad thing we have the right to show it is not true. l. The Right to Privacy. Nobody should try to harm our good name. Nobody has the right to come into our home, open our letters, or bother us or our family without a good reason. m. Freedom to Move. We all have the right to go where we want in our own country and to travel as we wish. n. The Right to Seek a Safe Place to Live. If we are frightened of being badly treated in our own country, we all have the right to run away to another country to be safe. o. Right to a Nationality. We all have the right to belong to a country. p. Marriage and Family. Every grown-up has the right to marry and have a family if they want to. Men and women have the same rights when they are married, and when they are separated. q. The Right to Your Own Things. Everyone has the right to own things or share them. Nobody should take our things from us without a good reason. r. Freedom of Thought. We all have the right to believe in what we want to believe, to have a religion, or to change it if we want. s. Freedom of Expression. We all have the right to make up our own minds, to think what we like, to say what we think, and to share our ideas with other people. t. The Right to Public Assembly. We all have the right to meet our friends and to work together in peace to defend our rights. Nobody can make us join a group if we dont want to. u. The Right to Democracy. We all have the right to take part in the government of our country. Every grown-up should be allowed to choose their own leaders. v. Social Security. We all have the right to affordable housing, medicine, education, and childcare, enough money to live on and medical help if we are ill or old. w. Workers Rights. Every grown-up has the right to do a job, to a fair wage for their work, and to join a trade union.

x. The Right to Play. We all have the right to rest from work and to relax. y. Food and Shelter for All. We all have the right to a good life. Mothers and children, people who are old, unemployed or disabled, and all people have the right to be cared for. z. The Right to Education. Education is a right. Primary school should be free. We should learn about the United Nations and how to get on with others. Our parents can choose what we learn. aa. Copyright. Copyright is a special law that protects ones own artistic creations and writings; others cannot make copies without permission. We all have the right to our own way of life and to enjoy the good things that art, science and learning bring. bb. A Fair and Free World. There must be proper order so we can all enjoy rights and freedoms in our own country and all over the world. cc. Responsibility. We have a duty to other people, and we should protect their rights and freedoms. dd. No One Can Take Away Your Human Rights. INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS: The portions of the ICCPR relevant to the subject comprise three (3) parts: Part 1 (A1) recognises the right of all peoples to selfdetermination, including the right to "freely determine their political status", pursue their economic, social and cultural goals, and manage and dispose of their own resources. It recognises a negative right of a people not to be deprived of its means of subsistence, and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination. Part 2 (A25) obliges parties to legislate where necessary to give effect to the rights recognised in the Covenant, and to provide an effective legal remedy for any violation of those rights. It also requires the rights be recognised "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status," and to ensure that they are enjoyed equally by women. The rights can only be limited "in time of public emergency which threatens the life of the nation," and even then no derogation is permitted from the rights to life, freedom from torture and slavery, the freedom from retrospective law, the right to personhood, and freedom of thought, conscience and religion.

Part 3 (A627) lists the rights themselves. These include rights to: Physical integrity, in the form of the right to life and freedom from torture and slavery (A6, 7, 8); Liberty and security of the person, in the form of freedom from arbitrary arrest and detention and the right to habeas corpus (A911); Procedural fairness in law, in the form of rights to due process, a fair and impartial trial, the presumption of innocence, and recognition as a person before the law (A14, 15, 16); Individual liberty, in the form of the freedoms of movement, thought, conscience and religion, speech, association and assembly, family rights, the right to a nationality, and the right to privacy (A12, 13, 1724); Prohibition of any propaganda for war as well as any advocacy of national or religious hatred that constitutes incitement to discrimination, hostility or violence by law (A20); Political participation, including the right to join a political party and the right to vote (A25); Non-discrimination, minority rights and equality before the law (A26, 27).

other status". The rights can only be limited by law, in a manner compatible with the nature of the rights, and only for the purpose of "promoting the general welfare in a democratic society". Part 3 (A615) lists the rights themselves. These include rights to: Work, under "just and favourable conditions", with the right to form and join trade unions (A6, 7, 8); Social security, including social insurance (A9); Family life, including paid parental leave and the protection of children (A10); An adequate standard of living, including adequate food, clothing and housing, and the "continuous improvement of living conditions" (A11); Health, specifically "the highest attainable standard of physical and mental health" (A12); Education, including free universal primary education, generally available secondary education and equally accessible higher education. This should be directed to "the full development of the human personality and the sense of its dignity", and enable all persons to participate effectively in society (A13, 14); Participation in cultural life (A15).

Many of these rights include specific actions which must be undertaken to realize them. INTERNATIONAL CONVENTION ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS: The ICESCR follows the structure of the UDHR and ICCPR. The portions relevant to the subject comprise three (3) parts: Part 1 (A1) recognises the right of all peoples to selfdetermination, including the right to "freely determine their political status", pursue their economic, social and cultural goals, and manage and dispose of their own resources. It recognises a negative right of a people not to be deprived of its means of subsistence, and imposes an obligation on those parties still responsible for non-self governing and trust territories (colonies) to encourage and respect their self-determination. Part 2 (A25) establishes the principle of "progressive realisation" an acknowledgement that some of the rights (for example, the right to health) may be difficult in practice to achieve in a short period of time, and that states may be subject to resource constraints, but requires them to act as best they can within their means. It also requires the rights be recognised "without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or

Many of these rights include specific actions which must be undertaken to realize them.

[For a detailed discussion on the domestic laws relating to womens and childrens rights, please refer to the assigned cases.]