I.
INTRODUCTION
Human Rights
-inalienable, fundamental rights “to
which a person inherently entitled simply
because he or she is a human being”, regardless
of race, sex, nationality, ethnicity, language,
religion, or any other status.
-it includes the right to life and liberty,
freedom from slavery and torture, freedom of
opinion and expression, the right to work and
education, and many more.
-Everyone is entitled to these rights,
without discrimination.
Theories of Sources of Human Rights
1. Religious or Theological Approach –
rights of the people came from the
Creator (God)
2. Natural Law Theory – individuals
enter in society with certain basic rights
and no government can deny these
rights.
3. Historical Theory – human rights are
not created by the state, but they are the
products of historical evolution. The
modern state human rights are
recognized and upheld by the law,
ancient times human rights were based
on customs and usages.
4. Functional or Sociological Approach -
Human rights exist as a form of social
control.
5. Positivist Theory – human rights are
created and maintained by the State. The
State is the only source of right and
outside the State an individual has no
right at all. Human rights are NOT
natural to man.
6. Marxist Theory – Social interest
precedes individual interest.
7. Theory Based on Equality and
Respect – all human beings are born free
and equal in dignity and rights placed
equality at the top of the international
human rights agenda more than 50 years
ago. Since them the right to equality and
prohibition of discrimination have been
incorporated into an array of
constitutional and international
instruments.
8. Theory Based on Justice – all human
beings have fundamental interest in
living a minimally flourishing life of
which autonomy and well-being are
central components.
9. Theory Based on Dignity of Man –
Human rights is derived from the vision
that it needs to promote and protect
human dignity.
10. Utilitarian Theory – a moral theory by
which requires the government to make
decisions for majority of the public.
(“greater happiness of everyone”, sabi ni
Ma’am)
Classification of Human Rights
1. Classic and Social Rights – Classic
rights are often seen to require the non-
intervention of the state (negative
obligation) and Social Rights requires
active intervention on the part of the
state (positive obligation)
2. Civil, Political, Economic, Social and
Cultural Rights – “the physical
integrity rights”, it is concerned with the
right to life, liberty and security of the
person, and which offer protection from
physical violence against person, torture
and inhuman treatment, arbitrary arrest,
detention, exile, slavery and servitude,
interference with one’s privacy.
3. Fundamental and Basic Rights – are
taken to mean such rights as the right to
life an inviolability of the person.
Characteristics of Human Rights
1. Inherent – human rights are not granted
by any person or authority, it does not
have to be bought, earned or inherited.
They belong to people simply because
they are human.
2. Fundamental – without Human Rights,
the life and dignity of man will be
meaningless.
3. Inalienable – Human Rights cannot be
taken away; No one has the right to
deprive another of Human Rights for any
reason.
a. Human Rights are inalienable
because:
i. They cannot be rightfully
taken away from a free
individual.
 ii. They cannot be given
away of be forfeited.
4. Imprescriptible – HR does not
prescribe and cannot be lost even if man
fails to use or assert them, even by a long
passage of time.
5. Indivisible – not capable of being
divided.
6. Universal – they apply irrespective of
one’s origin, status, condition or place.
7. Independent – the fulfillment or
exercise of one cannot be had without
the realization of the other.
4 Generations of Human Rights
-refers to the order in time when a
particular set of rights began to develop and gain
recognition by States
-these are succession of periods
1. Political and Civil Rights (1st Gen).
(“no one shall rights”) – negative
rights. It prohibits the State from doing
something.
i. Examples:
(2) prohibition form searches
and seizures
(3) interruption of peaceful
meetings
(4) undue intervention to the
freedom of expression
2. Economic, Social and Cultural Rights
(2nd Gen) (“State shall rights”) –
positive rights. It enjoins the State to
perform an act or do something for the
enjoyment of these rights by the people.
i. Examples:
(1) right to work
(2) right to education
(3) right to food
3. Collective Rights (3rd Gen) (‘solidarity
rights”) – rights for the vulnerable of the
society.
i. Examples:
(1) right to development
(2) right to live a healthful
and balanced ecology
(3) right to live in peace
4. Digital Rights (4th Gen) – Genetic
Engineering, Artificial Intelligence,
Internet Freedom, Robotic
Techonology, “free public WiFI”
Development of Human Rights
1. Magna Carta of Human Rights – the
Great Charter of Liberties. It was
accepted by King John of England in
1215 and granted certain rights to
English noblemen.
2. In 1215, after King John of
England violated a number of
ancient laws and customs by
which England had been
governed, his subjects forced
him to sign the Magna Carta,
which enumerated what later
came to be thought of as human
rights.
2. American Bill of Rights – In 1787,
when the blueprint for self-government-
the American Constitution was being
drafted, the draft was remarkable but
deeply flawed, because it does not
contain the declaration of individual
rights. The ABR inspired by Jefferson
and drafted by James Madison, was
adopted, and in 1791 the American
Constitution’s first ten amendment
became the law of the land.
3. French Declaration of Rights of Man
and the Citizen – the content of the
document emerged largely form the
ideals of the Enlightenment. The key
drafts were drafted by Lafayette,
working at times with his close friend
Thomas Jefferson. It was influenced by
the doctrine of “Natural right”.
II. SOURCES OF HUMAN RIGHTS
A. Primary sources
1) International Convention
and Treaties – these are
contracts signed between
states. They are legally
binding and impose mutual
obligations on the states that
are party to any particular
treaty. The main particularity
of human rights treaties is that
they impose obligations on
states about the manner in
which they treat all
 individuals within their
jurisdiction
2) International Customs as
evidence of a general practice
accepted as law – Customary
international law plays a crucial
role in international human
rights law. The Statute of the
International Court of Justice
refers to “general practice
accepted as law”.
3) General Principles of Law –
In the application of both
national and international law,
general or guiding principles
are used. In international law,
they have been defined as
“logical propositions resulting
from judicial reasoning on the
basis of existing pieces of
international law”.
B. Secondary Sources
1) Subsidiary means for the
determination of rules of
law – According to Art 38
of the Statute of
International Court of
Justice, judicial decisions
and the teachings of the
most qualified publicists
are subsidiary means for
the determinations of rules
of law.
Jus Cogens – also referred to as “peremptory
norm of international law”. It literally means
“compelling law”. A norm accepted and
recognized by the international community of
States as a whole as a norm from which no
derogation is permitted and which can be
modified only by a subsequent norm of general
international law having the same character.
(Vienna Convention on the Law of Treaties, Art.
53)
Obligations Erga Omnes – an obligation of
every State towards the international
community as a whole. All states have a legal
interest in its compliance, and thus all States are
entitled to invoke responsibility for breach of
such an obligation. (Case Concerning the
Barcelona Traction, ICJ 1970)
Examples:
1) Outlawing of acts of aggression
2) Outlawing of genocide
3) Basic human rights
4) Protection from Slavery and racial
discrimination
Actio Popularis – is a Latin term that means a
lawsuit maybe brought by a 3rd party in the
interest of the public as a whole.
It is sometimes used in the context of
genocide and terrorism prosecution under
international law.
Doctrine of Incorporation – it means that the
rule of international law form part of the law of
the land and no further legislative action is
needed to make such rules applicable in the
domestic sphere.
Under this doctrine, as accepted by the
majority of states, such principles are deemed
incorporated in the law of every civilized states
as a condition and consequence of its
membership in the society, the state is
automatically obligated to comlpy with these
principles.
Judicial decisions and teachings of highly
qualified publicists - According to Art 38 of the
Statute of International Court of Justice, judicial
decisions and the teachings of the most qualified
publicists are subsidiary means for the
determinations of rules of law.
Kuala Lumpur War Crimes Commission – it
is a Malaysian organization established 2007 by
Mahathir Mohamad to investigate war crimes.
 COMMISSION ON HUMAN RIGHTS
ARTICLE XIII
HUMAN RIGHTS
SECTION 17.
(1) There is hereby created an independent office called
the Commission on Human Rights.
(2) The Commission shall be composed of a Chairman
and four Members who must be natural-born citizens of
the Philippines and a majority of whom shall be
members of the Bar. The term of office and other
qualifications and disabilities of the Members of the
Commission shall be provided by law.
(3) Until this Commission is constituted, the existing
Presidential Committee on Human Rights shall
continue to exercise its present functions and powers.
(4) The approved annual appropriations of the
Commission shall be automatically and regularly
released.
SECTION 18.
The Commission on Human Rights shall have the
following powers and functions:
(1) Investigate, on its own or on complaint by any party,
all forms of human rights violations involving civil and
political rights;
(2) Adopt its operational guidelines and rules of
procedure, and cite for contempt for violations thereof
in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the
protection of human rights of all persons within the
Philippines, as well as Filipinos residing abroad, and
provide for preventive measures and legal aid services
to the under-privileged whose human rights have been
violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or
detention facilities;
(5) Establish a continuing program of research,
education, and information to enhance respect for the
primacy of human rights;
(6) Recommend to Congress effective measures to
promote human rights and to provide for compensation
to victims of violations of human rights, or their
families;
(7) Monitor the Philippine Government's compliance
with international treaty obligations on human rights;
(8) Grant immunity from prosecution to any person
whose testimony or whose possession of documents or
other evidence is necessary or convenient to determine
the truth in any investigation conducted by it or under
its authority;
(9) Request the assistance of any department, bureau,
office, or agency in the performance of its functions;
(10) Appoint its officers and employees in accordance
with law; and
(11) Perform such other duties and functions as may be
provided by law
SECTION 19.
The Congress may provide for other cases of violations
of human rights that should fall within the authority of
the Commission, taking into account its
recommendations.
The Commission on Human Rights (CHR) is an
independent National Human Rights Institution
(NHRI) created under the 1987 Philippine Constitution,
established on 05 May 1987 by virtue of Executive
Order No. 163. It is an independent constitutional office
created under the 1987 Constitution of the Philippines,
with the primary function of investigating all forms of
human rights violations involving civil and political
rights in the Philippines.
Is the CHR a Constitutional Commission?
NO! It is an independent office or institution created by
the Constitution specifically by Sec. 17 Art. XIII and
enjoys fiscal autonomy.
CHR IS NOT A QUASI- JUDICIAL BODY
Not meant by fundamental law to be another court or
quasi-judicial agency
Most that may be conceded to the Commission in the
way of adjudicative power is that it may investigate,
receive evidence and make findings of fact as regards
claimed human rights violations involving civil and
political rights.
Fact finding is not adjudication, and cannot be likened
to the judicial function of a court of justice, or even a
quasi-judicial agency or official
MANDATE
The Commission is mandated to conduct investigations
on human rights violations against marginalized and
vulnerable sectors of the society, involving civil and
political rights. It also promotes the protection of,
respect for, and enhancement of people’s civil,
political, economic, social, and cultural rights.
POWERS & FUNCTIONS
The CHR derives its powers and authorities from
national and international statutes. Its powers and
functions are stipulated in the Constitution and
reiterated in E.O No. 163.
1) Investigate, on its own or on complaint by any party,
all forms of human rights violations involving civil and
political rights;
(2) Adopt its operational guidelines and rules of
procedure, and cite for contempt for violations thereof
in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the
protection of human rights of all persons within the
Philippines, as well as Filipinos residing abroad, and
provide for preventive measures and legal aid services
to the under-privileged whose human rights have been
violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or
detention facilities;
(5) Establish a continuing program of research,
education, and information to enhance respect for the
primacy of human rights;
(6) Recommend to Congress effective measures to
promote human rights and to provide for compensation
to victims of violations of human rights, or their
families;
(7) Monitor the Philippine Government's compliance
with international treaty obligations on human rights;
(8) Grant immunity from prosecution to any person
whose testimony or whose possession of documents or
other evidence is necessary or convenient to determine
the truth in any investigation conducted by it or under
its authority;
(9) Request the assistance of any department, bureau,
office, or agency in the performance of its functions;
(10) Appoint its officers and employees in accordance
with law; and
(11) Perform such other duties and functions as may be
provided by law.
UNITED NATIONS
PURPOSE
The United Nations (UN) is an international
organization created in 1945, shortly after the end of
WWII. The UN was formed by 51 countries in order to
encourage resolution of international conflicts without
war and to form policies on international issues. Like
most organizations, the UN was formed in order to
meet certain goals and purposes. Article I of the Charter
of United Nations specifies the purposes of the UN. The
Charter of United Nations (UN Charter) is the UN's
governing document, much like the Constitution of the
United States of America.
The UN Charter sets out five main purposes:
 Maintaining worldwide peace and security
 To protect Human Rights
 Fostering cooperation between nations in order
to solve economic, social, cultural, or
humanitarian international problems or
delivering humanitarian aid.
 Promote Sustainable Development
 Uphold International Law
PRINCIPAL ORGANS
The Security Council
The Security Council has a primary responsibility
under the UN Charter to maintain international peace
and security. Unlike the General Assembly, the
Security Council does not hold regular meetings. It can
be convened at any time, whenever international peace
is threatened. In fact, it meets almost every day.
The Economic and Social Council (ECOSOC)
The Economic and Social Council (ECOSOC) is the
central body for coordinating the economic and social
work of the United Nations and the UN System The
Council recommends and directs activities aimed at
promoting economic growth of developing countries,
supporting human rights and fostering world
cooperation to fight poverty and under-development.
The Trusteeship Council
The Trusteeship Council was assigned under the UN
Charter to supervise the administration of 11 Trust
Territories—former colonies or dependent territories—
which were placed under the International Trusteeship
System. The system was created at the end of the World
War II to promote the advancement of the inhabitants
of those dependent Territories and their progressive
development towards self-governance or
independence.
International Court of Justice
The International Court of Justice (ICJ) is the UN’s
main judicial organ, located in The Hague,
Netherlands. Established in 1945, the ICJ, or “World
Court” assumed its functions in 1946. The Court settles
legal disputes only between nations and not between
individuals, in accordance with international law. If a
country does not wish to take part in a proceeding, it
does not have to do so, unless required by special treaty
provisions. Once a country accepts the Court’s
jurisdiction, it must comply with its decision.
The Secretariat
The Secretariat is responsible for servicing the other
organs of the United Nations and administering the
programmes and policies laid down by them. The
Secretariat is headed by the Secretary-General, who is
appointed by the General Assembly on the
recommendation of the Security Council for a 5-year
term and is responsible for implementing decisions
taken by various organs of the United Nations. As the
chief Administrative officer of the Organization, the
Secretary-General directs the work of staff known as
“international civil servants”.
International Bodies that Protect and Promote
Human Rights
Office of the United Nations High Commissioner for
Human Rights
It is a United Nations agency that works to promote and
protect the human rights that are guaranteed under
international law and stipulated in the Universal
Declaration of Human Rights of 1948. The office was
established by the UN General Assembly on 20
December 1993 in the wake of the 1993 World
Conference on Human Rights.
The mandate of OHCHR derives from Articles 1, 13
and 55 of the Charter of the United Nations, the Vienna
Declaration and Programme of Action and General
Assembly resolution 48/141 of 20 December 1993, by
which the Assembly established the post of United
Nations High Commissioner for Human Rights. In
connection with the programme for reform of the
United Nations (A/51/950, para. 79), the OHCHR and
the Centre for Human Rights were consolidated into a
single OHCHR on 15 September 1997.
The objectives of OHCHR are to:
 Promote universal enjoyment of all human
rights by giving practical effect to the will and
resolve of the world community as expressed by
the United Nations
 Play the leading role on human rights issues and
emphasizes the importance of human rights at
the international and national levels
 Promote international cooperation for human
rights
 Stimulate and coordinates action for human
rights throughout the United Nations system
 Promote universal ratification and
implementation of international standards
 Assist in the development of new norms
 Support human rights organs and treaty
monitoring bodies
 Respond to serious violations of human rights
 Undertakes preventive human rights action
 Promote the establishment of national human
rights infrastructures
 Undertake human rights field activities and
operations
 Provide education, information advisory
services and technical assistance in the field of
human rights

Human Rights Committee
The Human Rights Committee is the body of
independent experts that monitors implementation of
the International Covenant on Civil and Political Rights
by its State parties.
All States parties are obliged to submit regular reports
to the Committee on how the rights are being
implemented. States must report initially one year after
acceding to the Covenant and then whenever the
Committee requests (usually every four years). The
Committee examines each report and addresses its
concerns and recommendations to the State party in the
form of "concluding observations”.
Committee Against Torture
The Committee Against Torture (CAT) is the body of
10 independent experts that monitors implementation
of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment by its
State parties.
Committee on the Elimination of Discrimination
Against Women
The United Nations Committee on the Elimination of
Discrimination against Women (CEDAW), an expert
body established in 1982, is composed of 23 experts on
women's issues from around the world.
The Committee's mandate is very specific: it watches
over the progress for women made in those countries
that are the States parties to the 1979 Convention on the
Elimination of All Forms of Discrimination against
Women. A country becomes a State party by ratifying
or acceding to the Convention and thereby accepting a
legal obligation to counteract discrimination against
women. The Committee monitors the implementation
of national measures to fulfill this obligation.
Committee on the Elimination of Racial
Discrimination
The Committee on the Elimination of Racial
Discrimination (CERD) is the body of independent
experts that monitors implementation of the
Convention on the Elimination of All Forms of Racial
Discrimination by its State parties.
All States parties are obliged to submit regular reports
to the Committee on how the rights are being
implemented. States must report initially one year after
acceding to the Convention and then every two years.
The Committee examines each report and addresses its
concerns and recommendations to the State party in the
form of “concluding observations”.
Committee on the Rights of Persons with
Disabilities
The Committee on the Rights of Persons with
Disabilities (CRPD) is the body of independent experts
which monitors implementation of the Convention by
the States Parties.
All States parties are obliged to submit regular reports
to the Committee on how the rights are being
implemented. States must report initially within two
years of accepting the Convention and thereafter every
four years. The Committee examines each report and
shall make such suggestions and general
recommendations on the report as it may consider
appropriate and shall forward these to the State Party
concerned.
Committee on Enforced Disappearances
The Committee on Enforced Disappearances (CED) is
the body of independent experts which monitors
implementation of the Convention by the States Parties
Committee on Economic, Social, and Cultural Rights
*Enforced Disappearance - occurs when a person is
secretly abducted or imprisoned by a state or political
organization or by a third party with the authorization,
support, or acquiescence of a state or political
organization, followed by a refusal to acknowledge the
person's fate and whereabouts, with the intent of
placing the victim outside the protection of the law
Committee on Economic, Social, and Cultural
Rights
A United Nations body of 18 experts that usually meets
twice per year in Geneva to consider the five-yearly
reports submitted by UN member states on their
compliance with the International Covenant on
Economic, Social and Cultural Rights (ICESCR).
Members are elected for a term of four years by States
parties in accordance with ECOSOC Resolution
1985/17 of 28 May 1985. Members serve in their
personal capacity and may be re-elected if nominated.
Committee on the Rights of the Child
It is the body of 18 Independent experts that monitors
implementation of the Convention on the Rights of the
Child by its State parties. It also monitors
implementation of two Optional Protocols to the
Convention, on involvement of children in armed
conflict and on sale of children, child prostitution and
child pornography. On 19 December 2011, the UN
General Assembly approved a third Optional Protocol
on a communications procedure, which will allow
individual children to submit complaints regarding
specific violations of their rights under the Convention
and its first two optional protocols. The Protocol
entered into force in April 2014.
Distinguish UNCHR from United Nations Human
Rights Committee or United Nations Human Rights
Council
The UN Human Rights Committee should not be
confused with the more high-profile UN Human Rights
Council, or its predecessor, the UN Commission on
Human Rights. Whereas the Human Rights Council
(since June 2006) and the Commission on Human
Rights (before that date) are UN political bodies,
composed of states, established by a UN General
Assembly resolution and the UN Charter, respectively,
which discuss the entire range of human rights
concerns, the Human Rights Committee is a UN expert
body, composed of persons, established by the ICCPR,
which discusses matters pertaining only to the ICCPR.
The Economic and Social Council (ECOSOC)
The Economic and Social Council (ECOSOC) is the
central body for coordinating the economic and social
work of the United Nations and the UN System The
Council recommends and directs activities aimed at
promoting economic growth of developing countries,
supporting human rights and fostering world
cooperation to fight poverty and under-development.
Sub-Commission of Experts and Rapporteurs
Pursuant to General Assembly resolution 60/251 of 15
March 2006 entitled 'Human Rights Council', all
mandates, mechanisms, functions and responsibilities
of the Commission on Human Rights, including the
Sub-Commission on the Promotion and Protection of
Human Rights, were assumed, as of 19 June 2006, by
the Human Rights Council.
The Sub-Commission on the Promotion and Protection
of Human Rights was replaced by the Advisory
Committee.
In its decision 1/102 of 30 June 2006, the Human
Rights Council decided to extend exceptionally for one
year, subject to the review to be undertaken by the
Council in conformity with General Assembly
resolution 60/251, the mandates and mandate-holders
of the Sub-commission. The Council, in this regard,
requested the Sub-Commission to continue with the
implementation of its mandate.
The Council also decided that the final session of the
Sub-Commission should be convened 'starting 31 July
for a period of up to four weeks, if so decided by the
Sub-Commission, including its pre-sessional and in-
sessional working groups'. The Council further decided
that 'the working groups and the Social Forum of the
Sub-Commission shall be convened to hold their
annual sessions in accordance with current practices'.
The schedule of meetings of the Sub-Commission and
its subsidiary bodies as announced on 30 June 2006,
during the first session of the Human Rights Council,
was as follows:
 From 31 July to 4 August 2006: Working Group
on Indigenous Populations;
 From 3 to 4 August 2006: the Social Forum;
The following weeks were dedicated to other working
groups of the Sub-Commission and to its plenary
meetings as follows:
The Working Group on Contemporary Forms of
Slavery and the Working Group on Minorities met
alternatively in parallel to the plenary during the first
week of the session of the Sub-Commission (7 to 11
August);
At the 2nd meeting of its fifty-eighth session, on 7
August 2006, the Sub-Commission decided to utilize
all three weeks of meeting time available to it in order
to be able to carry out its programme of work. See
decision 2006/101.
Background information on the Sub-Commission
The United Nations Sub-Commission on the Promotion
and Protection of Human Rights, the main subsidiary
body of the former Commission on Human Rights, was
established in 1947 with 12 members. Originally the
'Sub Commission on Prevention of Discrimination and
Protection of Minorities', it was renamed in 1999.
Today, it is comprised of 26 independent experts in the
field of human rights who were elected with due regard
to equitable geographical distribution, and who act in
their personal capacity. In 2006, the membership
consists of seven experts from Africa, five from Asia,
five from Latin America, three from Eastern Europe
and six from Western European and other States.
The Sub-Commission's main functions are to undertake
studies on human rights issues, to make
recommendations concerning the prevention of
discrimination of any kind relating to human rights and
fundamental freedoms and the protection of racial,
national, religious and linguistic minorities, and to
carry out any other functions which may be entrusted
to it. Studies undertaken have addressed various aspects
of the realization of human rights, the administration of
justice, combating discrimination and protecting the
human rights of minorities, indigenous peoples and
other vulnerable groups. The Sub-Commission is often
described as a 'think tank'.
The Sub-Commission on the Promotion and Protection
of Human Rights was replaced by the Advisory
Committee.
The Organization's work in human rights is carried out
by a number of bodies. When researching human rights
issues, a distinction must be made between Charter-
based and treaty-based human rights bodies.
CHARTER BASED MECHANISMS
 Derive their establishment from provisions
contained in the Charter of the United
Nations
 Hold broad human rights mandates
 Address an unlimited audience
 Take action based on majority voting
The Human Rights Council and its predecessor, the
Commission on Human Rights, are called "Charter-
based" as they were established by resolutions of
principal organs of the UN whose authority flows from
the UN Charter.
The current Charter-based bodies are the Human Rights
Council and its subsidiaries, including the Universal
Periodic Review Working Group and the Advisory
Committee.
Previously, the Charter-based bodies were the
Commission on Human Rights and its subsidiaries,
including the Sub-commission on the Promotion and
Protection of Human Rights.
The Special Procedures, such as Special Rapporteurs,
have carried on their work since 1947, reporting first to
the Commission, then to the Council.
During its 60th session, the General Assembly adopted
the World Summit Outcome, resolution 60/1 of
September 2005, which called, inter alia, for
strengthening of the UN's human rights mechanisms.
This led to the establishment, later in the session, of the
Human Rights Council.
TREATY BASED MECHANISMS
 Derive their existence from provisions
contained in a specific legal instrument;
 Hold more narrow mandates: the set of
issues codified in the legal instrument;
 Address a limited audience: only those
countries that have ratified the legal
instrument; and
 Base their decision-making on consensus.
Nine UN human rights conventions have monitoring
bodies to oversee the implementation of the treaty
provisions. The treaty bodies are composed of
independent experts and meet to consider State parties'
reports as well as individual complaints or
communications. They may also publish general
comments on human rights topics related to the treaties
they oversee. The treaty-based bodies tend to follow
similar patterns of documentation.
Following the completion of the reform of the Charter-
based human rights bodies and the establishment of the
Human Rights Council, focus shifted to the reform of
the treaty-bodies. On 9 April 2014, the General
Assembly adopted a resolution on "Strengthening and
enhancing the effective functioning of the human rights
treaty body system" (A/RES/68/268).
The Secretary-General issues a "Compilation of
guidelines on the form and content of reports to be
submitted by States parties to the international human
rights treaties" (HRI/GEN/2/Rev.6). This document
provides details on the reporting requirements,
including the core document, and treaty-specific
documents.
The Committees may also issue general comments on
thematic issues. These have been issued in
"International human rights instruments: Compilation
of General Comments and General Recommendations foundation for business and human rights. The UNGP
adopted by human rights treaty bodies" are informally known as the "Ruggie Principles" or the
"Ruggie Framework" due to their authorship by John
CHARTER-BASED TREATY-BASED Ruggie, who conceived them and led the process for
Human Rights Council Human Rights their consultation and implementation
Committee (CCPR)
Universal Periodic Committee on Economic, International Criminal Court
Review Social, and Cultural The International Criminal Court (ICC or ICCt) is an
Rights (CESCR) intergovernmental organization and international
Commission on Human Committee on the tribunal that sits in The Hague in the Netherlands. The
Rights (replaced by Elimination of Racial ICC has the jurisdiction to prosecute individuals for the
Human Rights Council) Discrimination (CERD) international crimes of genocide, crimes against
Special Procedure of the Committee on the humanity, and war crimes. The ICC is intended to
Human Rights Council Elimination of complement existing national judicial systems and it
Discrimination may therefore only exercise its jurisdiction when
Human Right Council certain conditions are met, such as when national courts
Complain Procedure are unwilling or unable to prosecute criminals or when
the United Nations Security Council or individual
United Nations New Guiding Principles on Business states refer situations to the Court. The ICC began
and Human Rights functioning on 1 July 2002, the date that the Rome
The United Nations Guiding Principles on Business Statute entered into force. The Rome Statute is a
and Human Rights (UNGPs) is an instrument multilateral treaty which serves as the ICC's
consisting of 31 principles implementing the United foundational and governing document. States which
Nations ‘Protect, Respect and Remedy’ framework on become party to the Rome Statute, for example by
this issue of human rights and transnational ratifying it, become member states of the ICC.
corporations and other business enterprises. Developed Currently, there are 123 states which are party to the
by the Special Representative of the Secretary-General Rome Statute and therefore members of the ICC.
(SRSG) John Ruggie, these Guiding Principles
provided the first global standard for preventing and The ICC has four principal organs: the Presidency,
addressing the risk of adverse impacts on human rights the Judicial Divisions, the Office of the Prosecutor, and
linked to business activity, and continue to provide the the Registry. The President is the most senior judge
internationally accepted framework for enhancing chosen by his or her peers in the Judicial Division,
standards and practice regarding business and human which hears cases before the Court. The Office of the
rights. On June 16, 2011, the United Nations Human Prosecutor is headed by the Prosecutor who
Rights Council unanimously endorsed the Guiding investigates crimes and initiates proceedings before the
Principles for Business and Human Rights, making the Judicial Division. The Registry is headed by the
framework the first corporate human rights Registrar and is charged with managing all the
responsibility initiative to be endorsed by the United administrative functions of the ICC, including the
Nations. headquarters, detention unit, and public defense office.

The UNGPs encompass three pillars outlining how
states and businesses should implement the framework:
 The state duty to protect human rights
 The corporate responsibility to respect human
rights
 Access to remedy for victims of business-
related abuses
The UNGPs have received wide support from states,
civil society organizations, and even the private sector,
this has further solidified their status as the key global
The Office of the Prosecutor has opened ten official
investigations and is also conducting an additional
eleven preliminary examinations. Thus far, 39
individuals have been indicted in the ICC, including
Ugandan rebel leader Joseph Kony, Sudanese president
Omar al-Bashir, Kenyan president Uhuru Kenyatta,
Libyan leader Muammar Gaddafi, Ivorian president
Laurent Gbagbo, and Congolese vice-president Jean-
Pierre Bemba.
PRESIDENCY
The Presidency is responsible for the proper
administration of the Court (apart from the Office of the
Prosecutor). It comprises the President and the First and
Second Vice-Presidents—three judges of the Court
who are elected to the Presidency by their fellow judges
for a maximum of two three-year terms. The current
president is Chile Eboe-Osuji who was elected 11
March 2018, succeeding Silvia Fernández de Gurmendi
(first female president).
JUDICIAL DIVISIONS
The Judicial Divisions consist of the 18 judges of the
Court, organized into three chambers—the Pre-Trial
Chamber, Trial Chamber and Appeals Chamber—
which carry out the judicial functions of the Court.
Judges are elected to the Court by the Assembly of
States Parties. They serve nine-year terms and are not
generally eligible for re-election. All judges must be
nationals of states parties to the Rome Statute, and no
two judges may be nationals of the same state. They
must be "persons of high moral character, impartiality
and integrity who possess the qualifications required in
their respective States for appointment to the highest
judicial offices".
The Prosecutor or any person being investigated or
prosecuted may request the disqualification of a judge
from "any case in which his or her impartiality might
reasonably be doubted on any ground". Any request for
the disqualification of a judge from a particular case is
decided by an absolute majority of the other judges. A
judge may be removed from office if he or she "is found
to have committed serious misconduct or a serious
breach of his or her duties" or is unable to exercise his
or her functions. The removal of a judge requires both
a two-thirds majority of the other judges and a two-
thirds majority of the state’s parties.
The Prosecutor may open an investigation under three
circumstances:
 when a situation is referred to him or her by a
state party;
 when a situation is referred to him or her by the
United Nations Security Council, acting to
address a threat to international peace and
security; or
 when the Pre-Trial Chamber authorises him or
her to open an investigation on the basis of
information received from other sources, such
as individuals or non-governmental
organisations.
REGISTRY
The Registry is responsible for the non-judicial aspects
of the administration and servicing of the Court. This
includes, among other things, "the administration of
legal aid matters, court management, victims and
witnesses matters, defence counsel, detention unit, and
the traditional services provided by administrations in
international organisations, such as finance, translation,
building management, procurement and personnel".
The Registry is headed by the Registrar, who is elected
by the judges to a five-year term. The current Registrar
is Herman von Hebel, who was elected on 8 March
2013.

OFFICE OF THE PROSECUTOR

The Office of the Prosecutor (OTP) is responsible for
conducting investigations and prosecutions. It is
headed by the Chief Prosecutor, who is assisted by one
or more Deputy Prosecutors. The Rome Statute
provides that the Office of the Prosecutor shall act
independently; as such, no member of the Office may
seek or act on instructions from any external source,
such as states, international organisations, non-
governmental organisations or individuals.
Domestic State Responsibility
1. State as guarantor of Human Rights
o The State must recognize that the people have
rights and freedoms that are inherent and
cannot be taken away. With this recognition is
the State’s duty to guarantee the continued
enjoyment by the people of their rights.
o As guarantor, the State may be held
accountable when people are deprived of their
rights by its action or inaction.
o The State may regulate or limit certain
activities of its people by virtue of the Police
Power:
 Congress may pass laws to uphold and
promote human rights as well as set
parameters within which they can be
enjoyed
 Executive officials may implement
programs to enhance the conditions of
the people and enforce laws for the
observance of those parameters
 Supreme Court may issue orders and
writs to protect human rights
o The delicate balance can only be achieved if
the State promotes the respect for human
rights, and members of society acknowledge
that the enjoyment of certain rights is subject
to the State’s prudent and reasonable exercise
of Police Power.
2. Human Rights and the Rule of Law
o Rule of Law – “the law is preeminent and can
serve as a check against abuse of power”
o Rule by Law – the law serves “as a mere tool
for a government that suppresses in a
legalistic fashion”
o Dexterous juggling of procedural rules may
sometimes give an illusion of legality to an
act, but could in fact be “suppression in a
legalistic fashion”—an anathema to the Rule
of Law which pertains to “rules” as a set of
prescribed regulations, rather than to “rule” as
the authority for good governance.
o Rules are not supposed to subvert the law, and
the law must conform to constitutional
limitations.
o The genuine concept of Rule of Law is and
should be an ideal that promotes and respects
human rights
3. Role of the Judiciary
4. Violations by “State actors”
o States are entities; they do not act on their
own, but through their agents, or “state
actors.”
o A violation of an individual’s human rights by
a state actor is deemed a violation by the State
itself.
5. Violations by private individuals
o Violations committed by private individuals
are treated and punished under the criminal
law system
o For that to happen, the act or omission must be
defined and penalized under an existing
domestic law (nulla poena sine lege).
o In order that human rights violations
committed by non-State actors can be properly
dealt with, it is necessary that:
a) The State, through its lawmaking body,
must enact the appropriate laws to
criminalize the human rights violations;
and
b)The State, through its judiciary, must
provide adequate judicial remedies
6. State liability for HR violations committed by
“non-State actors”
o State liability may attach for violations
committed by non-State actors if the State
failed to pass laws to protect its people from
these violations, and to provide for adequate
judicial remedy.
o The State’s role as guarantor of human rights
carries with it the obligation to ensure that
State actors and non-State actors do not violate
them.
7. Derivative State responsibility for complicity
o General rules on attributing State
Responsibility:
 Direct responsibility of the State
committed by State actors
 Responsibility for acts committed by
non-State actors when the State failed to
pass laws, prevent and punish
violations, and to provide adequate legal
remedies
o Can a State be held liable for the acts of
another State? Under International Law, a
State may be held liable for a human rights
violation even if it did not directly commit the
act constituting the violation, provided that it
assisted in the commission of the act or
allowed it to happen.
o Articles on State Responsibility – “Derivative
Responsibility” is present where:
  The State aids and assists in the
commission by another of the
internationally wrongful act (Art. 16)
 The State exercises direction and control
over the commission of the act (Art. 17)
o Both instances of derivative responsibility
have the same elements of:
a) That State does so with knowledge of
the circumstances of the internationally
wrongful act
b)The act would be internationally
wrongful if committed by that State
8. Prohibition on unreasonable searches and
seizures
o This prohibition is a restraint against the State,
and not against private individuals.
o People v. Andre Marti – the accused was
convicted for violation of the dangerous drugs
law. Upon inspection on him as part of
standard operating procedure, he was found in
possession of marijuana. SC ruled that illegal
articles could be admitted as evidence even if
these were products of a search conducted
without a warrant, because the person who did
the search was a civilian, not a government
agent.
o The constitutional proscription could only be
invoked against the State to whom it is
imposed.
9. Command Responsibility: Yamashita Standard
o Liability for human rights violations may be
incurred by an act or omission.
o The failure of a superior officer to stop human
rights violations committed by his
subordinates, even proof of his direct order is
absent, could still make him liable as well for
such acts.
o In Re: Yamashita – General Yamashita was
charged for violations of the laws of war by
“unlawfully disregarding and failing to
discharge his duty as a commander to control
the acts of members of his command by
permitting them to commit war crimes,” from
the allegation that the army under his
command massacred a large part of civilian
population. A Philippine military commission
heard the case, and was subsequently elevated
to the US Supreme Court which ruled that
under International Law on the law of war,
violations of war “have to be avoided through
the control of the operations of war by
commanders who to some extent are
responsible for their subordinates.”
o Elements of command responsibility: (refer to
EO 226)
a) Existence of a superior-subordinate
relationship
b)The superior should have known that
the crime shall be committed, is being
committed, or has been committed
c) The superior does not do something to
prevent or correct it either before,
during, or immediately after its
commission
Civil and Political Rights
1. Definition and Nature of Civil and Political
Rights
 Class of rights that protect the individuals’
freedom from infringement by governments,
social organizations, and private individuals.
They ensure one’s ability to participate in the
civil and political life of the society and state
without discrimination or repression.
 Sources: UDHR Articles 3 to 21 and ICCPR
2. International Convention on Civil and Political
Rights (ICCPR)
 2 additional protocols:
1)First Optional Protocol – provides for
the jurisdiction of the HR Committee to
receive and consider communications
from individuals who claim to be
victims of human rights violations set
forth in the ICCPR.
2)Second Optional Protocol – aimed at
the abolition of death penalty.
3. Right to Life, Liberty, and Security
 Death Penalty
 Legal and Ethical Considerations on
Euthanasia
 Difference between assisted dying and
euthanasia
 Assisted-suicide
o It is the patient himself who takes his
life. The doctor merely provides the
instructions and the means to commit
suicide.
o Requires both the patient’s request
and action to die.
 Euthanasia
o The patient’s life is taken by another
person, generally a doctor.
 o May take place with or without the
patient’s knowledge or involvement.
o Voluntary – the competent patient
asked to die
o Involuntary – the competent patient
has not been consulted to die
o Non-voluntary – the patient is
incompetent to make a decision or
request to die
o Passive – the patient asked for the
withdrawal of treatment, e.g.,
disabling life-support machines
 Abortion
 Prohibition Against Slavery and Involuntary
Servitude
 The right against slavery is jus cogens.
Includes all forms of slavery such as human
trafficiking.
 ICCPR Article 8 – “slavery and the slave
trade shall be prohibited in all their forms”
 “Forced or compulsory labor” shall not
include work or service required:
- of a prisoner
- of a military nature
- which forms part of normal civil
obligations
- necessary during calamities
 Involuntary Servitude
 It is the condition where one is compelled
by force, coercion, or imprisonment, and
against his will, to labor for another,
whether he is paid or not.
 GR: No involuntary servitude shall exist.
 XPNs:
- Punishment for a crime for which the
party has been duly convicted
- Personal military or civil service in the
interest of national defense
- In naval enlistment, a person who
enlists in a merchant ship may be
compelled to remain in service until
the end of a voyage
- Posse comitatusor the conscription of
able-bodied men for the apprehension
of criminals
- Return-to-work order issued by the
DOLE Secretary or the President
- Minors under patria potestas are
obliged to obey their parents
 Torture, Cruel, Inhuman or Degrading
Punishment and Treatment
 Torture – any act by which severe pain or
suffering, whether physical or mental, is
intentionally inflicted on a person for such
purposes as obtaining from him or a third
person information or a confession,
punishing him for an act he or a third
person has committed or is suspected of
having committed, or intimidating or
coercing him or a third person, or for any
reason based on discrimination of any kind,
when such pain or suffering is inflicted by
or at the instigation of or with the consent
or acquiescence of a public official or other
person acting in an official capacity.
 The use of torture can never be justified.
 Cruel, inhuman, and degrading (CID)
punishment or treatment usually do not
involve the infliction of physical injuries,
but still cause the victim to undergo
physical or mental suffering.
 Torture is regarded as a jus cogens crime.
States may proceed against another State
who commits torture, by invoking
universal jurisdiction.
 It is non-derogable and the principles of
extraterritoriality and universal jurisdiction
may apply.
 Arbitrary Arrest and Detention
4. Rights of the Accused [at trial] (Rule 115,
CrimPro)
a) To be presumed innocent until the contrary
is proved beyond reasonable doubt
b) To be informed of the nature and cause of
the accusation against him
c) To be present and defend in person and by
counsel at every stage of the proceedings,
from arraignment to promulgation of the
judgment. The accused may, however,
waive his presence at the trial pursuant to
the stipulations set forth in his bail, unless
his presence is specifically ordered by the
court for purposes of identification. The
absence of the accused without justifiable
cause at the trial of which he had notice
shall be considered a waiver of his right to
be present thereat. When an accused under
custody escapes, he shall be deemed to
have waived his right to be present on all
subsequent trial dates until custody over
him is regained. Upon motion, the accused
may be allowed to defend himself in person
 when it sufficiently appears to the court that
he can properly protect his rights without
the assistance of counsel.
d) To testify as a witness in his own behalf but
subject to cross-examination on matters
covered by direct examination. His silence
shall not in any manner prejudice him.
e) To be exempt from being compelled to be
a witness against himself.
f) To confront and cross-examine the
witnesses against him at the trial. Either
party may utilize as part of its evidence the
testimony of a witness who is deceased, out
of or cannot with due diligence be found in
the Philippines, unavailable, or otherwise
unable to testify, given in another case or
proceeding, judicial or administrative,
involving the same parties and subject
matter, the adverse party having the
opportunity to cross-examine him.
g) To have compulsory process issued to
secure the attendance of witnesses and
production of other evidence in his behalf.
h) To have speedy, impartial and public trial.
i) To appeal in all cases allowed an in the
manner prescribed by law.
 [IV. ROLE OF JUDICIARY IN THE PROMOTION
OF HUMAN RIGHTS]
I. WRIT OF AMPARO
SEC. 1. Petition. – The petition for a writ of amparo is
a remedy available to any person whose right to life,
liberty and security is violated or threatened with
violation by an unlawful act or omission of a public
official or employee, or of a private individual or
entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof.
SEC. 2. Who May File. – The petition may be filed by
the aggrieved party or by any qualified person or
entity in the following order:
- Any member of the immediate family, namely: the
spouse, children and parents of the aggrieved party;
- Any ascendant, descendant or collateral relative of
the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those
mentioned in the preceding paragraph; or
- Any concerned citizen, organization, association or
institution, if there is no known member of the
immediate family or relative of the aggrieved party.
The filing of a petition by the aggrieved party suspends
the right of all other authorized parties to file similar
petitions. Likewise, the filing of the petition by an
authorized party on behalf of the aggrieved party
suspends the right of all others, observing the order
established herein.
SEC. 3. Where to File. – The petition may be filed on
any day and at any time with the Regional Trial
Court of the place where the threat, act or omission
was committed or any of its elements occurred, or
with the Sandiganbayan, the Court of Appeals, the
Supreme Court, or any justice of such courts. The writ
shall be enforceable anywhere in the Philippines.
When issued by a Regional Trial Court or any judge
thereof, the writ shall be returnable before such court or
judge.
When issued by the Sandiganbayan or the Court of
Appeals or any of their justices, it may be returnable
before such court or any justice thereof, or to any
Regional Trial Court of the place where the threat, act
or omission was committed or any of its elements
occurred.
When issued by the Supreme Court or any of its
justices, it may be returnable before such Court or any
justice thereof, or before the Sandiganbayan or the
Court of Appeals or any of their justices, or to any
Regional Trial Court of the place where the threat, act
or omission was committed or any of its elements
occurred.
SEC. 4. No Docket Fees. – The petitioner shall be
exempted from the payment of the docket and other
lawful fees when filing the petition. The court, justice
or judge shall docket the petition and act upon it
immediately.
SEC. 5. Contents of Petition. – The petition shall be
signed and verified and shall allege the following:
- The personal circumstances of the petitioner;
- The name and personal circumstances of the
respondent responsible for the threat, act or omission,
or, if the name is unknown or uncertain, the respondent
may be described by an assumed appellation;
- The right to life, liberty and security of the aggrieved
party violated or threatened with violation by an
unlawful act or omission of the respondent, and how
such threat or violation is committed with the
attendant circumstances detailed in supporting
affidavits;
- The investigation conducted, if any, specifying the
names, personal circumstances, and addresses of the
investigating authority or individuals, as well as the
manner and conduct of the investigation, together with
any report;
- The actions and recourses taken by the petitioner
to determine the fate or whereabouts of the aggrieved
party and the identity of the person responsible for the
threat, act or omission; and
- The relief prayed for.
- The petition may include a general prayer for other
just and equitable reliefs.
SEC. 6. Issuance of the Writ. – Upon the filing of the
petition, the court, justice or judge shall immediately
order the issuance of the writ if on its face it ought
to issue. The clerk of court shall issue the writ under
the seal of the court; or in case of urgent necessity, the
justice or the judge may issue the writ under his or her
own hand, and may deputize any officer or person to
serve it.
The writ shall also set the date and time for summary
hearing of the petition which shall not be later than
seven (7) days from the date of its issuance.
SEC. 7. Penalty for Refusing to Issue or Serve the
Writ. – A clerk of court who refuses to issue the writ
after its allowance, or a deputized person who refuses
to serve the same, shall be punished by the court, justice
or judge for contempt without prejudice to other
disciplinary actions.
SEC. 8. How the Writ is Served. – The writ shall be
served upon the respondent by a judicial officer or by
a person deputized by the court, justice or judge who
shall retain a copy on which to make a return of
service. In case the writ cannot be served personally on
the respondent, the rules on substituted service shall
apply.
SEC. 9. Return; Contents. – Within seventy-two (72)
hours after service of the writ, the respondent shall
file a verified written return together with supporting
affidavits which shall, among other things, contain the
following:
- The lawful defenses to show that the respondent did
not violate or threaten with violation the right to life,
liberty and security of the aggrieved party, through any
act or omission;
- The steps or actions taken by the respondent to
determine the fate or whereabouts of the aggrieved
party and the person or persons responsible for the
threat, act or omission;
- All relevant information in the possession of the
respondent pertaining to the threat, act or omission
against the aggrieved party; and
- If the respondent is a public official or employee, the
return shall further state the actions that have been
or will still be taken:
> to verify the identity of the aggrieved party;
> to recover and preserve evidence related to the death
or disappearance of the person identified in the petition
which may aid in the prosecution of the person or
persons responsible;
> to identify witnesses and obtain statements from them
concerning the death or disappearance;
> to determine the cause, manner, location and time of
death or disappearance as well as any pattern or practice
that may have brought about the death or
disappearance;
> to identify and apprehend the person or persons
involved in the death or disappearance; and
> to bring the suspected offenders before a competent
court.
> The return shall also state other matters relevant to
the investigation, its resolution and the prosecution of
the case.
A general denial of the allegations in the petition shall
not be allowed.
SEC. 10. Defenses not Pleaded Deemed Waived. —
All defenses shall be raised in the return, otherwise,
they shall be deemed waived.
SEC. 11. Prohibited Pleadings and Motions. – The
following pleadings and motions are prohibited:
x Motion to dismiss;
x Motion for extension of time to file return,
opposition, affidavit, position paper and other
pleadings;
x Dilatory motion for postponement;
x Motion for a bill of particulars;
x Counterclaim or cross-claim;
x Third-party complaint;
x Reply;
x Motion to declare respondent in default;
x Intervention;
x Memorandum;
x Motion for reconsideration of interlocutory orders or
interim relief orders; and
x Petition for certiorari, mandamus or prohibition
against any interlocutory order.
SEC. 12. Effect of Failure to File Return. — In case
the respondent fails to file a return, the court, justice or
judge shall proceed to hear the petition ex parte.
SEC. 13. Summary Hearing. — The hearing on the
petition shall be summary. However, the court, justice
or judge may call for a preliminary conference to
simplify the issues and determine the possibility of
obtaining stipulations and admissions from the parties.
The hearing shall be from day to day until completed
and given the same priority as petitions for habeas
corpus.
SEC. 14. Interim Reliefs. — Upon filing of the petition
or at anytime before final judgment, the court, justice
or judge may grant any of the following reliefs:
(a) Temporary Protection Order. – The court, justice
or judge, upon MOTION or MOTU PROPRIO may
order that the petitioner or the aggrieved party and any
member of the immediate family be protected in a
government agency or by an accredited person or
private institution capable of keeping and securing
their safety. If the petitioner is an organization,
association or institution referred to in Section 3(c) of
this Rule, the protection may be extended to the officers
involved.
The Supreme Court shall accredit the persons and
private institutions that shall extend temporary
protection to the petitioner or the aggrieved party and
any member of the immediate family, in accordance
with guidelines which it shall issue.
The accredited persons and private institutions shall
comply with the rules and conditions that may be
imposed by the court, justice or judge.
(b) Inspection Order. — The court, justice or judge,
upon verified motion and after due hearing, may
order any person in possession or control of a
designated land or other property, to permit entry for
the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or
operation thereon.
The motion shall state in detail the place or places to
be inspected. It shall be supported by affidavits or
testimonies of witnesses having personal knowledge of
the enforced disappearance or whereabouts of the
aggrieved party.
If the motion is opposed on the ground of national
security or of the privileged nature of the
information, the court, justice or judge may conduct a
hearing in chambers to determine the merit of the
opposition.
The movant must show that the inspection order is
necessary to establish the right of the aggrieved party
alleged to be threatened or violated.
The inspection order shall specify the person or persons
authorized to make the inspection and the date, time,
place and manner of making the inspection and may
prescribe other conditions to protect the constitutional
rights of all parties. The order shall expire five (5) days
after the date of its issuance, unless extended for
justifiable reasons.
(c) Production Order. – The court, justice or judge,
upon verified motion and after due hearing, may
order any person in possession, custody or control of
any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute
or contain evidence relevant to the petition or the
return, to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
The motion may be opposed on the ground of national
security or of the privileged nature of the
information, in which case the court, justice or judge
may conduct a hearing in chambers to determine the
merit of the opposition.
The court, justice or judge shall prescribe other
conditions to protect the constitutional rights of all the
parties.
(d) Witness Protection Order. – The court, justice or
judge, upon MOTION or MOTU PROPRIO, may
refer the witnesses to the Department of Justice for
admission to the Witness Protection, Security and
Benefit Program, pursuant to Republic Act No. 6981.
The court, justice or judge may also refer the witnesses
to other government agencies, or to accredited
persons or private institutions capable of keeping and
securing their safety.
SEC. 15. Availability of Interim Reliefs to
Respondent. – Upon verified motion of the respondent
and after due hearing, the court, justice or judge may
issue an inspection order or production order under
paragraphs (b) and (c) of the preceding section.
A motion for inspection order under this section shall
be supported by affidavits or testimonies of witnesses
having personal knowledge of the defenses of the
respondent.
SEC. 16. Contempt. – The court, justice or judge may
order the respondent who refuses to make a return,
or who makes a false return, or any person who
otherwise disobeys or resists a lawful process or
order of the court to be punished for contempt. The
contemnor may be imprisoned or imposed a fine.
SEC. 17. Burden of Proof and Standard of Diligence
Required. – The parties shall establish their claims by
substantial evidence.
The respondent who is a private individual or entity
must prove that ordinary diligence as required by
applicable laws, rules and regulations was observed in
the performance of duty.
The respondent who is a public official or employee
must prove that extraordinary diligence as required
by applicable laws, rules and regulations was observed
in the performance of duty.
The respondent public official or employee cannot
invoke the presumption that official duty has been
regularly performed to evade responsibility or liability.
SEC. 18. Judgment. — The court shall render
judgment within ten (10) days from the time the
petition is submitted for decision. If the allegations in
the petition are proven by substantial evidence, the
court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, the
privilege shall be denied.
SEC. 19. Appeal. – Any party may appeal from the
final judgment or order to the Supreme Court under
Rule 45. The appeal may raise questions of fact or law
or both.
The period of appeal shall be five (5) working days
from the date of notice of the adverse judgment.
The appeal shall be given the same priority as in habeas
corpus cases.
SEC. 20. Archiving and Revival of Cases. – The court
shall not dismiss the petition, but shall archive it, if
upon its determination it cannot proceed for a valid
cause such as the failure of petitioner or witnesses to
appear due to threats on their lives.
A periodic review of the archived cases shall be made
by the amparo court that shall, motu proprio or upon
motion by any party, order their revival when ready
for further proceedings.
The petition shall be dismissed with prejudice upon
failure to prosecute the case after the lapse of two (2)
years from notice to the petitioner of the order
archiving the case.
The clerks of court shall submit to the Office of the
Court Administrator a consolidated list of archived
cases under this Rule not later than the first week of
January of every year.
SEC. 21. Institution of Separate Actions. — This Rule
shall not preclude the filing of separate criminal, civil
or administrative actions.
SEC. 22. Effect of Filing of a Criminal Action. –
When a criminal action has been commenced, no
separate petition for the writ shall be filed. The
reliefs under the writ shall be available by motion in the
criminal case.
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
amparo.
SEC. 23. Consolidation. – When a criminal action is
filed subsequent to the filing of a petition for the writ,
the latter shall be consolidated with the criminal action.
When a criminal action and a separate civil action are
filed subsequent to a petition for a writ of amparo, the
latter shall be consolidated with the criminal action.
After consolidation, the procedure under this Rule shall
continue to apply to the disposition of the reliefs in the
petition.
SEC. 24. Substantive Rights. — This Rule shall not
diminish, increase or modify substantive rights
recognized and protected by the Constitution.
SEC. 25. Suppletory Application of the Rules of
Court. – The Rules of Court shall apply suppletorily
insofar as it is not inconsistent with this Rule.
SEC. 26. Applicability to Pending Cases. – This Rule
shall govern cases involving EXTRALEGAL
KILLINGS and ENFORCED DISAPPEARANCES
or THREATS thereof pending in the trial and appellate
courts.
SEC. 27. Effectivity. – This Rule shall take effect on
October 24, 2007, following its publication in three (3)
newspapers of general circulation.
-
II. WRIT OF HABEAS CORPUS
- it is an order issued by a court of law to a prison
warden or law enforcement agency holding an
individual in custody to deliver that prisoner to the
court so a judge can decide whether or not that
prisoner had been lawfully imprisoned or not, whether
or not he should be released from custody.
- “to produce the body”
- given priority by the Supreme Court
- so broad that its lapses are being filled in by the
WRIT OF AMPARO
- The writ of habeas corpus was devised and exists as a
speedy and effectual remedy to relive persons from
unlawful restraint, and as the best and only sufficient
defense of personal freedom.
- It secures to a prisoner the right to have the cause of
his detention examined and determined by a court of
justice, and to have ascertained if he is held under
lawful authority.
Petition for the issuance of a writ of habeas corpus a
special proceeding:
- a petition for the issuance of a writ of habeas corpus is
a special proceeding governed by Rule 102 of the Rules
of Court, as amended. Habeas corpus is that of a civil
proceeding in character. It seeks the enforcement of
civil rights.
- Resorting to the writ is not to inquire into the criminal
act of which the complaint is made but into the right of
liberty, notwithstanding the act and the immediate
purpose to be served is relief from illegal restraint. The
rule applies even when instituted to arrest a criminal
prosecution and secure freedom.
- When a prisoner petitions for a writ of habeas corpus,
he thereby commences a suit and prosecutes a case in
that court
Nature of the writ; what it is and what it is not
As a special proceeding under Rule 102 of the Rules of
Court, habeas corpus has the following characteristics:
- Habeas corpus is not in the nature of a writ of error;
nor intended as substitute for the trial court’s function;
- It cannot take the place of appeal, certiorari or writ of
error;
- The writ cannot be used to investigate and consider
questions of error that might be raised relating to
procedure or on the merits;
- The inquiry in a habeas corpus proceeding is
addressed to the question of whether the proceedings
and the assailed order are, for any reason, null and void.
- The writ is not ordinarily granted where the law
provides for other remedies in the regular course, and
in the absence of exceptional circumstances;
- Habeas corpus should not be granted in advance of
trial;
- The orderly course of trial must be pursued and the
usual remedies exhausted before resorting to the writ
where exceptional circumstances are extant;
- Habeas corpus cannot be issued as a writ of error or
as a means of reviewing errors of law and irregularities
not involving the questions of jurisdiction occurring
during the course of the trial, subject to the caveat that
constitutional safeguards of human life and liberty must
be preserved, and not destroyed;
- Where restraint is under legal process, mere errors and
irregularities, which do not render the proceedings
void, are not grounds for relief by habeas corpus
because in such cases, the restraint is not illegal;
- Habeas corpus is a summary remedy;
- It is analogous to a proceeding in rem when instituted
for the sole purpose of having the person of restraint
presented before the judge in order that the cause of
his detention may be inquired into and his
statements final;
-The writ of habeas corpus does not act upon the
prisoner who seeks relief, but upon the person who
holds him in what is alleged to be the unlawful
authority;
- In habeas corpus proceedings, the only parties before
the court are the petitioner (prisoner) and the person
holding the petitioner in custody;
- The only question to be resolved in a habeas
corpus petition is whether the custodian has
authority to deprive the petitioner of his liberty; and
-The writ may be denied if the petitioner fails to show
facts that he is entitled thereto
Application of writ
- The writ of habeas corpus applies to all cases of
illegal confinement or detention in which individuals
are deprived of liberty.
- It was devised as a speedy and effectual remedy to
relieve persons from unlawful restraint or, more
specifically, to obtain immediate relief for those who
may have been illegally confined or imprisoned without
sufficient cause and thus deliver them from unlawful
custody.
- It is therefore a writ of inquiry intended to test the
circumstances under which a person is detained.
Writ generally cannot be suspended; exceptions
GR: The privilege of the writ of habeas corpus cannot
be suspended
XPNs:
1) invasion, when the public safety requires it; or
2) rebellion, when the public safety requires it ( 15, Art.
III, 1987 Consti.).
Sec. 1. To what habeas corpus extends. - Except as
otherwise expressly provided by law, the writ of habeas
corpus shall extend to all cases of illegal confinement
or detention by which any person is deprived of his
liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto.
Sec. 2. Who may grant the writ. - The writ of habeas
corpus may be granted by the Supreme Court, or any
member thereof, on any day and at any time, or by the
Court of Appeals or any member thereof in the
instances authorized by law, and if so granted it shall
be enforceable anywhere in the Philippines, and may be
made returnable before the court or any member
thereof, or before the Court of First Instance, or any
judge thereof for the hearing and decision on the merits.
It may also be granted by a Court of First Instance, or
a judge thereof, on any day and at any time, and
returnable before himself, enforceable only within his
judicial district.
Sec. 3. Requisites of application therefor.
- Application for the writ shall be by petition signed
and verified either by the party for whose relief it is
intended, or by some person on his behalf, and shall set
forth:
(a) That the person in whose behalf the application is
made is imprisoned or restrained of his liberty;
(b) The officer or name of the person by whom he is
so imprisoned or restrained; or, if both are unknown or
uncertain, such officer or person may be described by
an assumed appellation, and the person who is served
with the writ shall be deemed the person intended;
(c) The place where he is so imprisoned or
restrained, if known;
(d) A copy of the commitment or cause of detention of
such person, if it can be procured without impairing
the efficiency of the remedy; or, if the imprisonment or
restraint is without any legal authority, such fact shall
appear.
Sec. 4. When writ not allowed or discharge
authorized. - If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue
of a judgment or order of a court of record, and that
the court or judge had jurisdiction to issue the
process, render the judgment, or make the order,
the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not
be discharged by reason of any informality or defect in
the process, judgment, or order. Nor shall anything in
this rule be held to authorize the discharge of a person
charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment
under lawful judgment.
Sec. 5. When the writ must be granted and issued. - A
court or judge authorized to grant the writ must, when
a petition therefor is presented and it appears that
the writ ought to issue, grant the same forthwith, and
immediately thereupon the clerk of the court shall
issue the writ under the seal of the court; or in case of
emergency, the judge may issue the writ under his own
hand, and may depute any officer or person to serve it.
Sec. 6. To whom writ directed, and what to require.
- In case of imprisonment or restraint by an officer, the
writ shall be directed to him, and shall command him
to have the body of the person restrained of his
liberty before the court or judge designated in the writ
at the time and place therein specified. In case of
imprisonment or restraint by a person not an officer, the
writ shall be directed to an officer, and shall
command him to take and have the body of the
person restrained of his liberty before the court or
judge designated in the writ at the time and place
therein specified, and to summon the person by
whom he is restrained then and there to appear
before said court or judge to show the cause of the
imprisonment or restraint.
Sec. 7. How prisoner designated and writ served. - The
person to be produced should be designated in the writ
by his name, if known, but if his name is not known he
may be otherwise described or identified. The writ
may be served in any province by the sheriff or other
proper officer, or by a person deputed by the court or
judge. Service of the writ shall be made by leaving the
original with the person to whom it is directed and
preserving a copy on which to make return of
service. If that person cannot be found, or has not the
prisoner in his custody, then the service shall be made
on any other person having or exercising such
custody.
Sec. 8. How writ executed and returned. - The officer
to whom the writ is directed shall convey the person
so imprisoned or restrained, and named in the writ,
before the judge allowing the writ, or, in case of his
absence or disability, before some other judge of the
same court, on the day specified in the writ, unless,
from sickness or infirmity of the person directed to be
produced, such person cannot, without danger, be
brought before the court or judge; and the officer shall
make due return of the writ, together with the day and
the cause of the caption and restraint of such person
according to the command thereof.
Sec. 9. Defect of form. - No writ of habeas corpus can
be disobeyed for defect of form, if it sufficiently
appears therefrom in whose custody or under whose
restraint the party imprisoned or restrained is held and
the court or judge before whom he is to be brought.
Sec. 10. Contents of return. - When the person to be
produced is imprisoned or restrained by an officer, the
person who makes the return shall state therein, and in
other cases the person in whose custody the prisoner is
found shall state, in writing to the court or judge before
whom the writ is returnable, plainly and
unequivocably:
(a) Whether he has or has not the party in his custody
or power, or under restraint;
(b) If he has the party in his custody or power, or under
restraint, the authority and the true and whole cause
thereof, set forth at large, with a copy of the writ, order,
execution, or other process, if any, upon which the
party is held;
(c) If the party is in his custody or power or is restrained
by him, and is not produced, particularly the nature and
gravity of the sickness or infirmity of such party by
reason of which he cannot, without danger, be brought
before the court or judge;
(d) If he has had the party in his custody or power, or
under restraint, and has transferred such custody or
restraint to another, particularly to whom, at what time,
for what cause, and by what authority such transfer was
made.
Sec. 11. Return to be signed and sworn to. - The return
or statement shall be signed by the person who makes
it; and shall also be sworn to by him if the prisoner is
not produced, and in all other cases unless the return is
made and signed by a sworn public officer in his
official capacity.
Sec. 12. Hearing on return; Adjournments. - When
the writ is returned before one judge, at a time when the
court is in session, he may forthwith adjourn the case
into the court, there to be heard and determined. The
court or judge before whom the writ is returned or
adjourned must immediately proceed to hear and
examine the return, and such other matters as are
properly submitted for consideration, unless for good
cause shown the hearing is adjourned, in which event
the court or judge shall make such order for the
safekeeping of the person imprisoned or restrained as
the nature of the case requires. If the person imprisoned
or restrained is not produced because of his alleged
sickness or infirmity, the court or judge must be
satisfied that it is so grave that such person cannot
be produced without danger, before proceeding to
hear and dispose of the matter. On the hearing the
court or judge shall disregard matters of form and
technicalities in respect to any warrant or order of
commitment of a court or officer authorized to commit
by law.
Sec. 13. When the return evidence, and when only a
plea. - If it appears that the prisoner is in custody under
a warrant of commitment in pursuance of law, the
return shall be considered prima facie evidence of
the cause of restraint; but if he is restrained of his liberty
by any alleged private authority, the return shall be
considered only as a plea of the facts therein set forth,
and the party claiming the custody must prove such
facts.
Sec. 14. When person lawfully imprisoned
recommitted, and when let to bail. - If it appears that
the prisoner was lawfully committed, and is plainly and
specifically charged in the warrant of commitment with
an offense punishable by death, he shall not be released,
discharged, or bailed. If he is lawfully imprisoned or
restrained on a charge of having committed an offense
not so punishable, he may be recommitted to
imprisonment or admitted to bail in the discretion of the
court or judge. If he be admitted to bail, he shall
forthwith file a bond in such sum as the court or judge
deems reasonable, considering the circumstances of the
prisoner and the nature of the offense charged,
conditioned for his appearance before the court where
the offense is properly cognizable to abide its order or
judgment; and the court or judge shall certify the
proceedings, together with the bond, forthwith to the
proper court. If such bond is not so filed, the prisoner
shall be recommitted to confinement.
Sec. 15. When prisoner discharged if no appeal.
- When the court or judge has examined into the cause
of caption and restraint of the prisoner, and is satisfied
that he is unlawfully imprisoned or restrained, he shall
forthwith order his discharge from confinement, but
such discharge shall not be effective until a copy of the
order has been served on the officer or person detaining
the prisoner. If the officer or person detaining the
prisoner does not desire to appeal, the prisoner shall be
forthwith released. chan robles virtual law library
Sec. 16. Penalty for refusing to issue writ, or for
disobeying the same. - A clerk of a court who refuses
to issue the writ after allowance thereof and demand
therefor, or a person to whom a writ is directed, who
neglects or refuses to obey or make return of the same
according to the command thereof, or makes false
return thereof, or who, upon demand made by or on
behalf of the prisoner, refuses to deliver to the person
demanding, within six (6) hours after the demand
therefor, a true copy of the warrant or order of
commitment, shall forfeit to the party aggrieved the
sum of one thousand pesos, to be recovered in a proper
action, and may also be punished by the court or judge
as for contempt.
Sec. 17. Person discharged not to be again
imprisoned. - A person who is set at liberty upon a writ
of habeas corpus shall not be again imprisoned for the
same offense unless by the lawful order or process of a
court having jurisdiction of the cause or offense; and a
person who knowingly, contrary to the provisions of
this rule, recommits or imprisons, or causes to be
committed or imprisoned, for the same offense, or
pretended offense, any person so set at liberty, or
knowingly aids or assists therein, shall forfeit to the
party aggrieved the sum of one thousand pesos, to be
recovered in a proper action, notwithstanding any
colorable pretense or variation in the warrant of
commitment, and may also be punished by the court or
judge granting writ as for contempt.
Sec. 18. When prisoner may be removed from one
custody to another. - A person committed to prison, or
in custody of an officer, for any criminal matter, shall
not be removed therefrom into the custody of another
officer unless by legal process, or the prisoner be
delivered to an inferior officer to carry to jail, or, by
order of the proper court or judge, be removed from one
place to another within the Philippines for trial, or in
case of fire, epidemic, insurrection, or other necessity
or public calamity; and a person who, after such
commitment, makes, signs, or countersigns any order
for such removal contrary to this section, shall forfeit
to the party aggrieved the sum of one thousand pesos,
to be recovered in a proper action.
Sec. 19. Record of writ, fees and costs. - The
proceedings upon a writ of habeas corpus shall be
recorded by the clerk of the court, and upon the final
disposition of such proceedings the court or judge shall
make such order as to costs as the case requires. The
fees of officers and witnesses shall be included in the
costs taxed, but no officer or person shall have the right
to demand payment in advance of any fees to which he
is entitled by virtue of the proceedings. When a person
confined under color of proceedings in a criminal case
is discharged, the costs shall be taxed against the
Republic of the Philippines, and paid out of its
Treasury; when a person in custody by virtue or under
color of proceedings in a civil case is discharged, the
costs shall be taxed against him, or against the person
who signed the application for the writ, or both, as the
court shall direct.

III. WRIT OF HABEAS DATA
Sec. 1. Habeas Data. - The writ of habeas data is a
remedy available to any person whose right to
privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a
public official or employee, or of a private
individual or entity engaged in the gathering,
collecting or storing of data or information
regarding the person, family, home and
correspondence of the aggrieved party.
Sec. 2. Who May File. - Any aggrieved party may file
a petition for the writ of habeas data. However, in cases
of EXTRALEGAL KILLINGS and ENFORCED
DISAPPEARANCES, the petition may be filed by:
(a) Any member of the immediate family of the
aggrieved party, namely: the spouse, children and
parents; or
(b) Any ascendant, descendant or collateral relative
of the aggrieved party within the fourth civil degree
of consanguinity or affinity, in default of those
mentioned in the preceding paragraph; or
Sec. 3. Where to File. - The petition may be filed with
the Regional Trial Court where the petitioner or
respondent resides, or that which has jurisdiction over
the place where the data or information is gathered,
collected or stored, at the option of the petitioner.
The petition may also be filed with the Supreme Court
or the Court of Appeals or the Sandiganbayan when
the action concerns public data files of government
offices.
Sec. 4. Where Returnable; Enforceable. - When the
writ is issued by a Regional Trial Court or any judge
thereof, it shall be returnable before such court or
judge.
When issued by the Court of Appeals or the
Sandiganbayan or any of its justices, it may be
returnable before such court or any justice thereof, or
to any Regional Trial Court of the place where the
petitioner or respondent resides, or that which has
jurisdiction over the place where the data or
information is gathered, collected or stored.
When issued by the Supreme Court or any of its
justices, it may be returnable before such Court or any
justice thereof, or before the Court of Appeals or the
Sandiganbayan or any of its justices, or to any
Regional Trial Court of the place where the petitioner
or respondent resides, or that which has jurisdiction
over the place where the data or information is
gathered, collected or stored.
The writ of habeas data shall be enforceable anywhere
in the Philippines.
Sec. 5. Docket Fees. - No docket and other lawful
fees shall be required from an indigent petitioner. The
petition of the indigent shall be docked and acted upon
immediately, without prejudice to subsequent
submission of proof of indigency not later than fifteen
(15) days from the filing of the petition.
Sec. 6. Petition. - A verified written petition for a writ
of habeas data should contain:
(a) The personal circumstances of the petitioner and
the respondent;
(b) The manner the right to privacy is violated or
threatened and how it affects the right to life, liberty
or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner
to secure the data or information;
(d) The location of the files, registers or databases, the
government office, and the person in charge, in
possession or in control of the data or information, if
known;
(e) The reliefs prayed for, which may include the
updating, rectification, suppression or destruction of
the database or information or files kept by the
respondent.
In case of threats, the relief may include a prayer for an
order enjoining the act complained of; and
(f) Such other relevant reliefs as are just and
equitable.
Sec. 7. Issuance of the Writ. - Upon the filing of the
petition, the court, justice or judge shall immediately
order the issuance of the writ if on its face it ought
to issue. The clerk of court shall issue the writ under
the seal of the court and cause it to be served within
three (3) days from the issuance; or, in case of urgent
necessity, the justice or judge may issue the writ under
his or her own hand, and may deputize any officer or
person serve it.
The writ shall also set the date and time for summary
hearing of the petition which shall not be later than ten
(10) work days from the date of its issuance.
Sec. 8. Penalty for Refusing to Issue or Serve the Writ.
- A clerk of court who refuses to issue the writ after its
allowance, or a deputized person who refuses to serve
the same, shall be punished by the court, justice or
judge for contempt without prejudice to other
disciplinary actions.
Sec. 9. How the Writ is Served. - The writ shall be
served upon the respondent by a judicial officer or by
a person deputized by the court, justice or judge who
shall retain a copy on which to make a return of
service. In case the writ cannot be served personally on
the respondent, the rules on substituted service shall
apply.
Sec. 10. Return; Contents. - The respondent shall file
a verified written return together with supporting
affidavits within five (5) working days from service of
the writ, which period may be reasonably extended by
the Court for justifiable reasons. The return shall,
among other things, contain the following:
(a) The lawful defenses such as national security, state
secrets, privileged communications, confidentiality of
the source of information of media and others;
(b) In case of respondent in charge, in possession or in
control of the data or information subject of the
petition;
(i) a disclosure of the data or information
about the petitioner, the nature of such data
or information, and the purpose for its
collection;
(ii) the steps or actions taken by the
respondent to ensure the security and
confidentiality of the data or information; and
(iii) the currency and accuracy of the data or
information held;
(c) Other allegations relevant to the resolution of the
proceeding.
A general denial of the allegations in the petition shall
not be allowed.
Sec. 11. Contempt. - The court, justice or judge may
punish with imprisonment or fine a respondent who
commits contempt by making a false return, or
refusing to make a return; or any person who
otherwise disobeys or resist a lawful process or order
of the court.
Sec. 12. When Defenses May be Heard in Chambers.
- A hearing in chambers may be conducted where the
respondent invokes the defense that the release of the
data or information in question shall compromise
national security or state secrets, or when the data or
information cannot be divulged to the public due to its
nature or privileged character.
Sec. 13. Prohibited Pleadings and Motions. - The
following pleadings and motions are prohibited:
x Motion to dismiss;
x Motion for extension of time to file return,
opposition, affidavit, position paper and other
pleadings;
x Dilatory motion for postponement;
x Motion for a bill of particulars;
x Counterclaim or cross-claim;
x Third-party complaint;
x Reply;
x Motion to declare respondent in default;
x Intervention;
x Memorandum;
x Motion for reconsideration of interlocutory orders or
interim relief orders; and
x Petition for certiorari, mandamus or prohibition
against any interlocutory order.
Sec. 14. Return; Filing. - In case the respondent fails
to file a return, the court, justice or judge shall proceed
to hear the petition ex parte, granting the petitioner
such relief as the petition may warrant unless the court
in its discretion requires the petitioner to submit
evidence.
Sec. 15. Summary Hearing. - The hearing on the
petition shall be summary. However, the court, justice
or judge may call for a preliminary conference to
simplify the issues and determine the possibility of
obtaining stipulations and admissions from the parties.
Sec. 16. Judgment. - The court shall render judgment
within ten (10) days from the time the petition is
submitted for decision. If the allegations in the petition
are proven by substantial evidence, the court shall
enjoin the act complained of, or order the deletion,
destruction, or rectification of the erroneous data or
information and grant other relevant reliefs as may be
just and equitable; otherwise, the privilege of the writ
shall be denied.
Upon its finality, the judgment shall be enforced by the
sheriff or any lawful officers as may be designated by
the court, justice or judge within five (5) working days.
Sec. 17. Return of Service. - The officer who executed
the final judgment shall, within three (3) days from its
enforcement, make a verified return to the court. The
return shall contain a full statement of the proceedings
under the writ and a complete inventory of the
database or information, or documents and articles
inspected, updated, rectified, or deleted, with copies
served on the petitioner and the respondent.
The officer shall state in the return how the judgment
was enforced and complied with by the respondent, as
well as all objections of the parties regarding the
manner and regularity of the service of the writ.
Sec. 18. Hearing on Officer-s Return. - The court shall
set the return for hearing with due notice to the parties
and act accordingly.
Sec. 19. Appeal. - Any party may appeal from the final
judgment or order to the Supreme Court under Rule 45.
The appeal may raise questions of fact or law or both.
The period of appeal shall be five (5) working days
from the date of notice of the judgment or final order.
The appeal shall be given the same priority as in habeas
corpus and amparo cases.
Sec. 20. Institution of Separate Actions. - The filing of
a petition for the writ of habeas data shall not preclude
the filing of separate criminal, civil or administrative
actions.
Sec. 21. Consolidation. - When a criminal action is
filed subsequent to the filing of a petition for the writ,
the latter shall be consolidated with the criminal action.
When a criminal action and a separate civil action are
filed subsequent to a petition for a writ of habeas data,
the petition shall be consolidated with the criminal
action.
After consolidation, the procedure under this Rule shall
continue to govern the disposition of the reliefs in the
petition.
Sec. 22. Effect of Filing of a Criminal Action. - When
a criminal action has been commenced, no separate
petition for the writ shall be filed. The relief under the
writ shall be available to an aggrieved party by motion
in the criminal case.
The procedure under this Rule shall govern the
disposition of the reliefs available under the writ of
habeas data.
Sec. 23. Substantive Rights. - This Rule shall not
diminish, increase or modify substantive rights.
Sec. 24. Suppletory Application of the Rules of Court.
- The Rules of Court shall apply suppletorily insofar as
it is not inconsistent with this Rule.
Sec. 25. Effectivity. - This Rule shall take effect
on February 2, 2008, following its publication in three
(3) newspapers of general circulation.
IV. WRIT OF KALIKASAN
Section 1. Nature of the writ. - The writ is a remedy
available to a natural or juridical person, entity
authorized by law, people’s organization, non-
governmental organization, or any public interest
group accredited by or registered with any
government agency, on behalf of persons whose
constitutional right to a balanced and healthful
ecology is violated, or threatened with violation by
an unlawful act or omission of a public official or
employee, or private individual or entity, involving
environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants
in two or more cities or provinces.
Section 2. Contents of the petition. - The verified
petition shall contain the following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the
respondent or if the name and personal circumstances
are unknown and uncertain, the respondent may be
described by an assumed appellation;
(c) The environmental law, rule or regulation
violated or threatened to be violated, the act or
omission complained of, and the environmental
damage of such magnitude as to prejudice the life,
health or property of inhabitants in two or more cities
or provinces.
(d) All relevant and material evidence consisting of
the affidavits of witnesses, documentary evidence,
scientific or other expert studies, and if possible, object
evidence;
(e) The certification of petitioner under oath that:
(1) petitioner has not commenced any action or
filed any claim involving the same issues in any
court, tribunal or quasi-judicial agency, and no
such other action or claim is pending therein;
(2) if there is such other pending action or
claim, a complete statement of its present status;
(3) if petitioner should learn that the same or
similar action or claim has been filed or is
pending, petitioner shall report to the court that
fact within five (5) days therefrom; and
(f) The reliefs prayed for which may include a prayer
for the issuance of a TEPO.
Section 3. Where to file. - The petition shall be filed
with the Supreme Court or with any of the stations of
the Court of Appeals.
Section 4. No docket fees. - The petitioner shall be
exempt from the payment of docket
fees.
Section 5. Issuance of the writ. - Within three (3) days
from the date of filing of the petition, if the petition is
sufficient in form and substance, the court shall give an
order:
(a) issuing the writ; and
(b) requiring the respondent to file a verified return
as provided in Section 8 of this Rule. The clerk of court
shall forthwith issue the writ under the seal of the court
including the issuance of a cease and desist order and
other temporary reliefs effective until further order.
Section 6. How the writ is served. - The writ shall be
served upon the respondent by a court officer or any
person deputized by the court, who shall retain a
copy on which to make a return of service. In case
the writ cannot be served personally, the rule on
substituted service shall apply.
Section 7. Penalty for refusing to issue or serve the
writ. - A clerk of court who unduly delays or refuses to
issue the writ after its allowance or a court officer or
deputized person who unduly delays or refuses to serve
the same shall be punished by the court for contempt
without prejudice to other civil, criminal or
administrative actions.
Section 8. Return of respondent; contents. - Within a
non-extendible period of ten (10) days after service of
the writ, the respondent shall file a verified return
which shall contain all defenses to show that
respondent did not violate or threaten to violate, or
allow the violation of any environmental law, rule or
regulation or commit any act resulting to
environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in
two or more cities or provinces.
All defenses not raised in the return shall be deemed
waived.
The return shall include affidavits of witnesses,
documentary evidence, scientific or other expert
studies, and if possible, object evidence, in support of
the defense of the respondent.
A general denial of allegations in the petition shall be
considered as an admission thereof.
Section 9. Prohibited pleadings and motions. - The
following pleadings and motions are prohibited:
x Motion to dismiss;
x Motion for extension of time to file return;
x Motion for postponement;
x Motion for a bill of particulars;
x Counterclaim or cross-claim;
x Third-party complaint;
x Reply; and
x Motion to declare respondent in default.
Section 10. Effect of failure to file return. - In case the
respondent fails to file a return, the court shall proceed
to hear the petition ex parte.
Section 11. Hearing. - Upon receipt of the return of the
respondent, the court may call a preliminary
conference to simplify the issues, determine the
possibility of obtaining stipulations or admissions from
the parties, and set the petition for hearing.
The hearing including the preliminary conference shall
not extend beyond sixty (60) days and shall be given
the same priority as petitions for the writs of habeas
corpus, amparo and habeas data.
Section 12. Discovery Measures. - A party may file a
verified motion for the following reliefs:
(a) Ocular Inspection; order — The motion must
show that an ocular inspection order is necessary to
establish the magnitude of the violation or the threat
as to prejudice the life, health or property of
inhabitants in two or more cities or provinces. It
shall state in detail the place or places to be inspected.
It shall be supported by affidavits of witnesses having
personal knowledge of the violation or threatened
violation of environmental law.
After hearing, the court may order any person in
possession or control of a designated land or other
property to permit entry for the purpose of
inspecting or photographing the property or any
relevant object or operation thereon.
The order shall specify the person or persons authorized
to make the inspection and the date, time, place and
manner of making the inspection and may prescribe
other conditions to protect the constitutional rights of
all parties.
(b) Production or inspection of documents or
things; order – The motion must show that a
production order is necessary to establish the
magnitude of the violation or the threat as to
prejudice the life, health or property of inhabitants
in two or more cities or provinces.
After hearing, the court may order any person in
possession, custody or control of any designated
documents, papers, books, accounts, letters,
photographs, objects or tangible things, or objects
in digitized or electronic form, which constitute or
contain evidence relevant to the petition or the
return, to produce and permit their inspection,
copying or photographing by or on behalf of the
movant.
The production order shall specify the person or
persons authorized to make the production and the date,
time, place and manner of making the inspection or
production and may prescribe other conditions to
protect the constitutional rights of all parties.
Section 13. Contempt. - The court may after hearing
punish the respondent who refuses or unduly delays
the filing of a return, or who makes a false return, or
any person who disobeys or resists a lawful process
or order of the court for indirect contempt under
Rule 71 of the Rules of Court.
Section 14. Submission of case for decision; filing of
memoranda. - After hearing, the court shall issue an
order submitting the case for decision. The court may
require the filing of memoranda and if possible, in its
electronic form, within a non-extendible period of
thirty (30) days from the date the petition is submitted
for decision.
Section 15. Judgment. - Within sixty (60) days from
the time the petition is submitted for decision, the court
shall render judgment granting or denying the
privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the
following:
(a) Directing respondent to permanently cease and
desist from committing acts or neglecting the
performance of a duty in violation of environmental
laws resulting in environmental destruction or damage;
(b) Directing the respondent public official,
government agency, private person or entity to protect,
preserve, rehabilitate or restore the environment;
(c) Directing the respondent public official,
government agency, private person or entity to
monitor strict compliance with the decision and
orders of the court;
(d) Directing the respondent public official,
government agency, or private person or entity to make
periodic reports on the execution of the final
judgment; and
(e) Such other reliefs which relate to the right of the
people to a balanced and healthful ecology or to the
protection, preservation, rehabilitation or
restoration of the environment, except the award of
damages to individual petitioners.
Section 16. Appeal. - Within fifteen (15) days from the
date of notice of the adverse judgment or denial of
motion for reconsideration, any party may appeal to the
Supreme Court under Rule 45 of the Rules of Court.
The appeal may raise questions of fact.
Section 17. Institution of separate actions. - The filing
of a petition for the issuance of the writ of kalikasan
shall not preclude the filing of separate civil,
criminal or administrative actions.
-
___________________________________________
_________________________________

GR: human rights are absolute and inherent, it cannot
be restrained.
XPN: the exercise of human rights can be restricted,
regulated, or controlled.
Protected speech includes every form of expression,
whether oral, written, tape or disc recorded. It includes
motion pictures as well as what is known as symbolic
speech such as the wearing of an armband as a symbol
of protest. Peaceful picketing has also been included
within the meaning of speech.
Section 4. No law shall be passed abridging the
freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and
petition the government for redress of grievances. (sec
4, 1987 Constitution)
1) freedom of speech
2) freedom of expression
3) freedom of the press
4) right of the people peaceably to assemble
5) right of the people to petition the government for
redress of grievances
LIMITATIONS ON THESE FREEDOMS
1) CLEAR AND PRESENT DANGER TEST
- All forms of media, whether print or broadcast, are
entitled to the broad protection of the freedom of
speech and expression clause. The test for limitations
on freedom of expression continues to be clear and
present danger rule – are such of a nature as to create a
clear and present danger that will bring about
substantive evils that which the lawmakers has a right
to prevent.
The test to determine whether freedom of expression
may be limited is the clear and present danger of an
evil of a substantive character that the State has a right
to prevent. Such danger must not only be clear but must
also be present. There should be no doubt that what is
feared may be traced to the expression complained of;
the casual connection must be evident. Also, there
must be reasonable apprehension about its imminence.
The time element cannot be ignored.
> clear and imminent danger
> substantive evil
2) DANGEROUS TENDENCY TEST
- If the words uttered create a dangerous tendency
which the State has a right to prevent, then such words
are punishable. It is not necessary that some definite or
immediate acts of force, violence, or unlawfulness be
advocated. It is sufficient that such acts be advocated
in general terms nor is it necessary that the language
used be reasonably calculated to incite person to
acts of force, violence or unlawfulness. It is sufficient
if the natural tendency and probable effect of the
utterance be to bring about the substantive evil which
legislative body seeks to prevent.
3) BALANCING OF INTEREST TEST
- Courts should balance the public interest served by
legislation on one hand and the freedom of speech (or
any other constitutional right) on the other.
- The COURTS will then decide where the greater
weight should be placed.
(ex: picketing: er-ee rel)
x executive
x individual
/ role of the COURTS
COMMERCIAL SPEECH
- communication which no more than proposes a > not resorting to politically motivated
commercial transactions. stands contrary to the provisions of the Charter
- ads, billboards, commercials, etc. of the UN
> claiming to have direct and reliable
TO ENJOY PROTECTION: knowledge of the violation concerned
> must not be false or misleading
> should not propose an illegal transaction 5) not exclusively based on reports disseminated by
> even truthful and lawful commercial speech may be mass media.
regularized if: 6) already being dealt with by a special procedure, a
- Government has substantial interest to protect treaty body or other UN or similar regional complaints
- Regulation directly advances the interest… procedure in the field of human rights.
- It is more extensive than necessary to protect 7) domestic remedies have been exhausted, unless it
that interest appears that such remedies would be ineffective or
unreasonably prolonged.
-
RULES ON ASSEMBLY IN PUBLIC PLACES ___________________________________________
- Applicant should inform the licensing authority of _________________________________
date.
- File ahead of time to enable the public official
concerned to appraise whether there are valid 17 SUSTAINABLE DEVELOPMENT GOALS
objections to the grant of the permit; the grant or refusal - sustained by itself – continuously overtime
should be based on the application of clear and present - development that meets both present & future
danger test. generation’s needs
- If the public authority is of the view that there is an
imminent and grave threat, the applicant must be heard 1) No poverty
on the matter. 2) Zero hunger
- Decision must be transmitted to applicant at earliest 3) Good health and well being
opportunity so that they may….., if they so desire. 4) Quality education
5) Gender equality
6) Clean water and sanitation
CRITERIA FOR A COMMUNICATION TO BE 7) Affordable and clean energy
ACCEPTED FOR EXAMINATION 8) Decent work and economic growth
- A communication related to a violation of human 9) Industry, Innovation, and Infrastructure
rights and fundamental freedoms is ADMISSIBLE, 10) Reduced inequalities
provided that: 11) Sustainable cities and communities
12) Responsible consumption and production
1) it is not manifestly politically motivated and its 13) Climate action
object is consistent with the Charter of the UN, the 14) Life below water
UDHR, and other applicable instruments in the field of 15) Life on land
human rights law. 16) Peace, Justice, and Strong institutions
2) it gives a factual description of the alleged 17) Partnership for the goals
violations.
3) it’s language is not abusive.
4) it is submitted by a person or a group of persons
claiming to be the victims of violations of human rights
and other fundamental freedoms. It is submitted by any
person or group of persons, including non- STATE RESPONSIBILITY OF
governmental organizations: INTERNATIONALLY WRONGFUL ACTS
> acting in good faith in accordance with the [PART ONE: THE INTERNATIONALLY
principles of human rights WRONGFUL ACT OF A STATE]
 CHAPTER I: GENERAL PRINCIPLES
Article l: Responsibility of a State for its
internationally wrongful acts
Every internationally wrongful act of a State entails the
international responsibility of that State.
Article 2: Elements of an internationally wrongful act
of a State
There is an internationally wrongful act of a State when
conduct consisting of an action or omission:
(a) is attributable to the State under
international law; and
(b) constitutes a breach of an international
obligation of the State.
Article 3: Characterization of an act of a State as
internationally wrongful
The characterization of an act of a State as
internationally wrongful is governed by international
law. Such characterization is not affected by the
characterization of the same act as lawful by internal
law.
CHAPTER II: ATTRIBUTION OF CONDUCT TO A
STATE
Article 4: Conduct of organs of a State
1. The conduct of any State organ shall be considered
an act of that State under international law, whether
the organ exercises legislative, executive, judicial or
any other functions, whatever position it holds in the
organization of the State, and whatever its character as
an organ of the central Government or of a territorial
unit of the State.
2. An organ includes any person or entity which has
that status in accordance with the internal law of the
State.
Article 5: Conduct of persons or entities exercising
elements of governmental authority
The conduct of a person or entity which is not an organ
of the State under article 4 but which is empowered by
the law of that State to exercise elements of the
governmental authority shall be considered an act of
the State under international law, provided the person
or entity is acting in that capacity in the particular
instance.
Article 6: Conduct of organs placed at the disposal of
a State by another State
The conduct of an organ placed at the disposal of a
State by another State shall be considered an act of the
former State under international law if the organ is
acting in the exercise of elements of the governmental
authority of the State at whose disposal it is placed.
Article 7: Excess of authority or contravention of
instructions
The conduct of an organ of a State or of a person or
entity empowered to exercise elements of the
governmental authority shall be considered an act of
the State under international law if the organ, person
or entity acts in that capacity, even if it exceeds its
authority or contravenes instructions.
Article 8: Conduct directed or controlled by a State
The conduct of a person or group of persons shall be
considered an act of a State under international law if
the person or group of persons is in fact acting on the
instructions of, or under the direction or control of, that
State in carrying out the conduct.
Article 9: Conduct carried out in the absence or
default of the official authorities
The conduct of a person or group of persons shall be
considered an act of a State under international law if
the person or group of persons is in fact exercising
elements of the governmental authority in the absence
or default of the official authorities and in
circumstances such as to call for the exercise of those
elements of authority.
Article 10: Conduct of an insurrectional or other
movement
1. The conduct of an insurrectional movement which
becomes the new Government of a State shall be
considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other,
which succeeds in establishing a new State in part of
the territory of a pre-existing State or in a territory
under its administration shall be considered an act of
the new State under international law.
3. This article is without prejudice to the attribution to
a State of any conduct, however related to that of the
movement concerned, which is to be considered an act
of that State by virtue of articles 4 to 9.
Article 11: Conduct acknowledged and adopted by a
State as its own
Conduct which is not attributable to a State under the
preceding articles shall nevertheless be considered an
act of that State under international law if and to the
extent that the State acknowledges and adopts the
conduct in question as its own.
CHAPTER III: BREACH OF AN
INTERNATIONAL OBLIGATION
Article 12: Existence of a breach of an international
obligation
There is a breach of an international obligation by a
State when an act of that State is not in conformity with
what is required of it by that obligation, regardless of
its origin or character.
Article 13: International obligation in force for a
State
An act of a State does not constitute a breach of an
international obligation unless the State is
bound by the obligation in question at the time the act
occurs.
Article 14: Extension in time of the breach of an
international obligation
1. The breach of an international obligation by an act
of a State not having a continuing character occurs at
the moment when the act is performed, even if its effects
continue.
2. The breach of an international obligation by an act
of a State having a continuing character extends over
the entire period during which the act continues and
remains not in conformity with the international
obligation.
3. The breach of an international obligation requiring
a State to prevent a given event occurs when the event
occurs and extends over the entire period during which
the event continues and remains not in conformity with
that obligation.
Article 15: Breach consisting of a composite act
1. The breach of an international obligation by a State
through a series of actions or omissions defined in
aggregate as wrongful occurs when the action or
omission occurs which, taken with the other actions or
omissions, is sufficient to constitute the wrongful act.
2. In such a case, the breach extends over the entire
period starting with the first of the actions or omissions
of the series and lasts for as long as these actions or
omissions are repeated and remain not in conformity
with the international obligation.
CHAPTER IV: RESPONSIBILITY OF A STATE IN
CONNECTION WITH THE ACT OF ANOTHER
STATE
Article 16: Aid or assistance in the commission of an
internationally wrongful act
A State which aids or assists another State in the
commission of an internationally wrongful act by the
latter is internationally responsible for doing so if:
(a) that State does so with knowledge of the
circumstances of the internationally wrongful act;
and
(b) the act would be internationally wrongful if
committed by that State.
Article 17: Direction and control exercised over the
commission of an internationally wrongful act
A State which directs and controls another State in the
commission of an internationally wrongful act by the
latter is internationally responsible for that act if:
(a) that State does so with knowledge of the
circumstances of the internationally wrongful act; and
(b) the act would be internationally wrongful if
committed by that State.
Article 18: Coercion of another State
A State which coerces another State to commit an act is
internationally responsible for that act if:
(a) the act would, but for the coercion, be an
internationally wrongful act of the coerced State; and
(b) the coercing State does so with knowledge of the
circumstances of the act.
Article 19: Effect of this chapter
This chapter is without prejudice to the international
responsibility, under other provisions of
these articles, of the State which commits the act in
question, or of any other State.
CHAPTER V: CIRCUMSTANCES PRECLUDING
WRONGFULNESS
Article 20: Consent
Valid consent by a State to the commission of a given
act by another State precludes the wrongfulness of that
act in relation to the former State to the extent that the
act remains within the limits of that consent.
Article 21: Self-defense
The wrongfulness of an act of a State is precluded if the
act constitutes a lawful measure of self-defense taken
in conformity with the Charter of the United Nations.
Article 22: Countermeasures in respect of an
internationally wrongful act
The wrongfulness of an act of a State not in conformity
with an international obligation towards
another State is precluded if and to the extent that the
act constitutes a countermeasure taken against the
latter State in accordance with chapter II of part three.
Article 23: Force majeure
1. The wrongfulness of an act of a State not in
conformity with an international obligation of that
State is precluded if the act is due to force majeure, that
is the occurrence of an irresistible force or of an
unforeseen event, beyond the control of the State,
making it materially impossible in the circumstances to
perform the obligation.
2. Paragraph 1 does not apply if:
(a) the situation of force majeure is due, either alone or
in combination with other factors, to the conduct of the
State invoking it; or
(b) the State has assumed the risk of that situation
occurring.
Article 24: Distress
1. The wrongfulness of an act of a State not in
conformity with an international obligation of that
State is precluded if the author of the act in question
has no other reasonable way, in a situation of distress,
of saving the author’s life or the lives of other persons
entrusted to the author’s care.
2. Paragraph 1 does not apply if:
(a) the situation of distress is due, either alone or in
combination with other factors, to the conduct of the
State invoking it; or
(b) the act in question is likely to create a comparable
or greater peril.
Article 25: Necessity
1. Necessity may not be invoked by a State as a ground
for precluding the wrongfulness of an act not in
conformity with an international obligation of that
State unless the act:
(a) is the only way for the State to safeguard an
essential interest against a grave and imminent peril;
and
(b) does not seriously impair an essential interest of the
State or States towards which the obligation exists, or
of the international community as a whole.
2. In any case, necessity may not be invoked by a State
as a ground for precluding wrongfulness
if:
(a) the international obligation in question excludes the
possibility of invoking necessity; or
(b) the State has contributed to the situation of
necessity.
Article 26: Compliance with peremptory norms
Nothing in this chapter precludes the wrongfulness of
any act of a State which is not in conformity with an
obligation arising under a peremptory norm of general
international law.
Article 27: Consequences of invoking a circumstance
precluding wrongfulness
The invocation of a circumstance precluding
wrongfulness in accordance with this chapter is
without prejudice to:
(a) compliance with the obligation in question, if and
to the extent that the circumstance precluding
wrongfulness no longer exists;
(b) the question of compensation for any material loss
caused by the act in question.
[PART TWO: CONTENT OF THE INTERNATIONAL
RESPONSIBILITY OF A STATE]
CHAPTER I: GENERAL PRINCIPLES
Article 28: Legal consequences of an internationally
wrongful act
The international responsibility of a State which is
entailed by an internationally wrongful act in
accordance with the provisions of part one involves
legal consequences as set out in this part.
Article 29: Continued duty of performance
The legal consequences of an internationally wrongful
act under this part do not affect the continued duty of
the responsible State to perform the obligation
breached.

Article 30: Cessation and non-repetition
The State responsible for the internationally wrongful
act is under an obligation:
(a) to cease that act, if it is continuing;
(b) to offer appropriate assurances and guarantees of
non-repetition, if circumstances so require.
Article 31: Reparation
1. The responsible State is under an obligation to make
full reparation for the injury caused by the
internationally wrongful act.
2. Injury includes any damage, whether material or
moral, caused by the internationally wrongful act of a
State.
Article 32: Irrelevance of internal law
The responsible State may not rely on the provisions of
its internal law as justification for failure to comply
with its obligations under this part.
Article 33: Scope of international obligations set out
in this part
1. The obligations of the responsible State set out in this
part may be owed to another State, to
several States, or to the international community as a
whole, depending in particular on the character and
content of the international obligation and on the
circumstances of the breach.
2. This part is without prejudice to any right, arising
from the international responsibility of a
State, which may accrue directly to any person or entity
other than a State.
CHAPTER II: REPARATION FOR INJURY
Article 34: Forms of reparation
Full reparation for the injury caused by the
internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either singly
or in combination, in accordance with the provisions of
this chapter.
Article 35: Restitution
A State responsible for an internationally wrongful act
is under an obligation to make restitution, that is, to re-
establish the situation which existed before the
wrongful act was committed, provided and to the extent
that restitution:
(a) is not materially impossible;
(b) does not involve a burden out of all proportion to
the benefit deriving from restitution instead of
compensation.
Article 36: Compensation
1. The State responsible for an internationally wrongful
act is under an obligation to compensate
for the damage caused thereby, insofar as such damage
is not made good by restitution.
2. The compensation shall cover any financially
assessable damage including loss of profits
insofar as it is established.
Article 37: Satisfaction
1. The State responsible for an internationally wrongful
act is under an obligation to give
satisfaction for the injury caused by that act insofar as
it cannot be made good by restitution or compensation.
2. Satisfaction may consist in an acknowledgement of
the breach, an expression of regret, a
formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the
injury and may not take a form humiliating to the
responsible State.
Article 38: Interest
1. Interest on any principal sum due under this chapter
shall be payable when necessary in order
to ensure full reparation. The interest rate and mode of
calculation shall be set so as to achieve that result.
2. Interest runs from the date when the principal sum
should have been paid until the date the
obligation to pay is fulfilled.
Article 39: Contribution to the injury
In the determination of reparation, account shall be
taken of the contribution to the injury by willful or
negligent action or omission of the injured State or any
person or entity in relation to whom reparation is
sought.
CHAPTER III: SERIOUS BREACHES OF
OBLIGATIONS UNDER PEREMPTORY NORMS OF
GENERAL INTERNATIONAL LAW
Article 40: Application of this chapter
1. This chapter applies to the international
responsibility which is entailed by a serious breach by
a State of an obligation arising under a peremptory
norm of general international law.
2. A breach of such an obligation is serious if it involves
a gross or systematic failure by the responsible State to
fulfil the obligation.
Article 41: Particular consequences of a serious
breach of an obligation under this chapter
1. States shall cooperate to bring to an end through
lawful means any serious breach within the
meaning of article 40.
2. No State shall recognize as lawful a situation created
by a serious breach within the meaning of article 40,
nor render aid or assistance in maintaining that
situation.
3. This article is without prejudice to the other
consequences referred to in this part and to such
further consequences that a breach to which this
chapter applies may entail under international law.
[PART THREE: THE IMPLEMENTATION OF THE
INTERNATIONAL RESPONSIBILITY OF A STATE]
CHAPTER I: INVOCATION OF THE
RESPONSIBILITY OF A STATE
Article 42: Invocation of responsibility by an injured
State
A State is entitled as an injured State to invoke the
responsibility of another State if the obligation
breached is owed to:
(a) that State individually; or
(b) a group of States including that State, or the
international community as a whole, and the breach of
the obligation:
(i) specially affects that State; or
(ii) is of such a character as radically to change
the position of all the other States to which the
obligation is owed with respect to the further
performance of the obligation.
Article 43: Notice of claim by an injured State
1. An injured State which invokes the responsibility of
another State shall give notice of its claim
to that State.
2. The injured State may specify in particular:
(a) the conduct that the responsible State should take in
order to cease the wrongful act, if it is
continuing;
(b) what form reparation should take in accordance
with the provisions of part two.
Article 44: Admissibility of claims
The responsibility of a State may not be invoked if:
(a) the claim is not brought in accordance with any
applicable rule relating to the nationality of
claims;
(b) the claim is one to which the rule of exhaustion of
local remedies applies and any available and effective
local remedy has not been exhausted.
Article 45: Loss of the right to invoke responsibility
The responsibility of a State may not be invoked if:
(a) the injured State has validly waived the claim;
(b) the injured State is to be considered as having, by
reason of its conduct, validly acquiesced in the lapse of
the claim.
Article 46: Plurality of injured States
Where several States are injured by the same
internationally wrongful act, each injured State may
separately invoke the responsibility of the State which
has committed the internationally wrongful act.
Article 47: Plurality of responsible States
1. Where several States are responsible for the same
internationally wrongful act, the responsibility of each
State may be invoked in relation to that act.
2. Paragraph 1:
(a) does not permit any injured State to recover, by way
of compensation, more than the damage it has suffered;
(b) is without prejudice to any right of recourse against
the other responsible States.
Article 48: Invocation of responsibility by a State
other than an injured State
1. Any State other than an injured State is entitled to
invoke the responsibility of another State in accordance
with paragraph 2 if:
(a) the obligation breached is owed to a group of States
including that State, and is established for the
protection of a collective interest of the group; or
(b) the obligation breached is owed to the international
community as a whole.
2. Any State entitled to invoke responsibility under
paragraph 1 may claim from the responsible
State:
(a) cessation of the internationally wrongful act, and
assurances and guarantees of non-repetition in
accordance with article 30; and
(b) performance of the obligation of reparation in
accordance with the preceding articles, in the interest
of the injured State or of the beneficiaries of the
obligation breached.
3. The requirements for the invocation of responsibility
by an injured State under articles 43, 44
and 45 apply to an invocation of responsibility by a
State entitled to do so under paragraph 1.
CHAPTER II: COUNTERMEASURES
Article 49: Object and limits of countermeasures
1. An injured State may only take countermeasures
against a State which is responsible for an
internationally wrongful act in order to induce that
State to comply with its obligations under part two.
2. Countermeasures are limited to the non-
performance for the time being of international
obligations of the State taking the measures towards the
responsible State.
3. Countermeasures shall, as far as possible, be taken
in such a way as to permit the resumption of
performance of the obligations in question.
Article 50: Obligations not affected by
countermeasures
1. Countermeasures shall not affect:
(a) the obligation to refrain from the threat or use of
force as embodied in the Charter of the United Nations;
(b) obligations for the protection of fundamental
human rights;
(c) obligations of a humanitarian character prohibiting
reprisals;
(d) other obligations under peremptory norms of
general international law.
2. A State taking countermeasures is not relieved from
fulfilling its obligations:
(a) under any dispute settlement procedure applicable
between it and the responsible State;
(b) to respect the inviolability of diplomatic or consular
agents, premises, archives and documents.
Article 51: Proportionality
Countermeasures must be commensurate with the
injury suffered, taking into account the gravity of the
internationally wrongful act and the rights in question.
Article 52: Conditions relating to resort to
countermeasures
1. Before taking countermeasures, an injured State
shall:
(a) call upon the responsible State, in accordance with
article 43, to fulfil its obligations under part two;
(b) notify the responsible State of any decision to take
countermeasures and offer to negotiate with that State.
2. Notwithstanding paragraph 1 (b), the injured State
may take such urgent countermeasures as are
necessary to preserve its rights.
3. Countermeasures may not be taken, and if already
taken must be suspended without undue
delay if:
(a) the internationally wrongful act has ceased; and
(b) the dispute is pending before a court or tribunal
which has the authority to make decisions binding on
the parties.
4. Paragraph 3 does not apply if the responsible State
fails to implement the dispute settlement procedures in
good faith.
Article 53: Termination of countermeasures
Countermeasures shall be terminated as soon as the
responsible State has complied with its
obligations under part two in relation to the
internationally wrongful act.
Article 54: Measures taken by States other than an
injured State
This chapter does not prejudice the right of any State,
entitled under article 48, paragraph 1, to
invoke the responsibility of another State, to take lawful
measures against that State to ensure cessation of the
breach and reparation in the interest of the injured
State or of the beneficiaries of the obligation breached.
[PART FOUR: GENERAL PROVISIONS]
Article 55: Lex specialis
These articles do not apply where and to the extent that
the conditions for the existence of an internationally
wrongful act or the content or implementation of the
international responsibility of a State are governed by
special rules of international law.
Article 56: Questions of State responsibility not
regulated by these articles
The applicable rules of international law continue to
govern questions concerning the responsibility of a
State for an internationally wrongful act to the extent
that they are not regulated by these articles.
Article 57: Responsibility of an international
organization
These articles are without prejudice to any question of
the responsibility under international law
of an international organization, or of any State for the
conduct of an international organization.
Article 58: Individual responsibility
These articles are without prejudice to any question of
the individual responsibility under international law of
any person acting on behalf of a State.
DEROGATION:
Some human rights are non-derogable, and some may
be suspended or restricted by States.
Article 4 of ICCPR – allows the derogation of rights,
provided that: [POE NN]
1) there is a public emergency which threatens the life
of the nation.
2) the existence of public emergency if officially
proclaimed.
3) the derogation is to the extent strictly required by
the exigencies of the situation.
4) the measures taken are not inconsistent with the
State’s other obligations under international law.
5) the measures taken do not involve discrimination
solely on the ground of race, color, sex, language,
religion, or social origin.

Article 59: Charter of the United Nations

These articles are without prejudice to the Charter of
the United Nations.

___________________________________________
_________________________________

RESTRICTIONS AND LIMITATIONS ON THE

EXERCISE OF HUMAN RIGHTS
GR: the substance of human rights cannot be taken
away from human beings.
XPN: its exercise may, however, be regulated.

UNRESTRICTED EXERCISE OF RIGHTS could

infringe on the rights of others, or could be
detrimental to public health, public morals, or
national security.

STATES – do not have the absolute discretion and

prerogative to restrict the exercise of human rights.
Their actions must be bounded by certain parameters
and they must take into consideration the ff: [CS PLS]

1) there must be a clear legal provision of law

2) the restriction must be a specific legitimate purpose
3) the proportionality test must be applied
4) the least intrusive measure should be applied
5) the law must be strictly interpreted against
restriction