Eunice Lao Saavedra2007 - 100759

1. Prior the end of Second World War,  international law afforded important protections to many people, but most protections were rooted in political (rather than strictly humanitarian) considerations and people were merely objects of International law under the Traditional View. Hence, though State's purpose was clearly for the benefit of all its people, individuals were indirectly vested with rights and obligations and the consequences for individual welfare were only derivative and secondary. Human beings were not in focus but were only the distant and indirect beneficiaries of the law. In addition, they were actually not a person in international law because international system did not look at individual human beings directly and it did not secure them against governmental indifferences or mistakes. Even under international human rights law, individuals were only beneficiaries of these obligations while remaining incapable of asserting their rights in the international plain. At those times, the state was the subject of international law and the law of inter-state system was only between states which governed only relations between states on the state level. It has been committed only to "state values" - state equality, autonomy, independence, and national interest. 

Nevertheless, after the Second World War, the state sovereignty was diminished and individual personality was uplifted.  It was the war against Hitler that identified the violation of human rights as a major threat to international peace.  So UN and other intergovernmental organizations, national and transnational NGOs and international personalities combined to form international human rights movement, with law-making one of its principal elements. The international system has begun to show commitments to values that transcend from purely state values notably to human values and human rights. One of the most significant output was the creation of the Universal Declaration of Human Rights (UDHR). Individual then, up to now, has already been a subject of International Law. Meaning, human beings already have international legal personality and legal standing and they can already assert their rights in the international level subject however to certain rules of admissibility.  

References: " International Law and Human Rights" by Peter Danchin and "International Human Rights Law and the Role of the Legal Professions: A General Introduction

2. Sec 3, Article XVI f the 1987 Philippine Constitution declares that "The State may not be sued without its consent". The scope of the provision also includes foreign states insofar as they are sought to be sued in the courts of local states. The preceding sentence is based on the established principle of sovereign equality of States under the maxim par in parem non habet imperium - to do so would unduly vex the peace of nations.

The consent of the State may be given expressly or impliedly. Express consent may be manifested through a general or special law. Implied consent is given when the State itself commences litigation or when it enters into a contract.

Sec 20 of the Republic Act No. 10067 or the Tubbataha Reefs Natural Park Act of 2009 provides that "Damages to the reef shall subject the responsible person or entity to the payment of administrative fines set by the Tubbataha Protected Area Management Board (TPAMB) based on current valuation standards and to the payment of the cost of restoration."

Meanwhile, Sec 28 and 31 (b) of the same act respectively provide that

"The TPAMB shall prosecute violations of laws and rules on Environmental Impact Assessment System. Such violations shall be punished xxx The TPAMB shall also impose administrative fines xxx."and that,"In case the vessel used in violation of this Act is foreign owned, the fine shall be thrice the maximum amount imposed for the offense committed without prejudice to the provision of Section 27 hereof (provision for Poaching by Foreigners)"

The abovementioned law expressly grants TPAMB the authority to prosecute any entity, including foreign states, for the violation of the Act. With that, the Petition for the Issuance of the Writ of Kalikasan against the United States with the SC is not the proper remedy because the writ is just an ancillary remedy. The

petitioners should have filed the claims with TPAMB and not with the SC, which has no vested jurisdiction. Besides, the Writ of Kalikasan does not award damages pursuant to Sec 15, Rule 7, Part III of A.M. No. 09-6-8-SC (Rules of Procedure for Environmental Cases).

Hence, the petition for the Issuance of Writ of Kalikasan against the United States should be denied.

References: "2014 Philippine Political Law" by Cruz, 1987 Philippine Constitution, Republic Act No. 10067 and A.M. No. 09-6-8-SC

3. Kant's Categorical Imperative (CI) is a Deontological Ethical Theory (DET) and its characterization is in terms of respect for persons as ends in themselves and not just as means or motives to their own ends. DET is based on the idea that there are certain objective ethical rules in the world. As for Kant, morality entails a duty to recognize and respect humanity or moral personality which is inseparable from human or moral personality .

Based on Shandon L. Guthrie's evaluation on Kant's CI, an act should not be done out of any conditions or considerations because Kant's categorical imperative is concerned only with general and abstract moral actions. This is to say that something is morally wrong when it would result in a contradiction that is not a logical one (i.e. A = [~A]) but a practical one (i.e. when something is self-defeating).  As illustrated, If one lies in order to protect a Jew during the holocaust period from a Nazi soldier, then the person should preserve a "higher" duty to preserve human life. For Guthrie, Kant's CI connotes that the duty not to lie is not being ignored but, rather, trumped by a greater duty to preserve human life.

Therefore, based on Kant's CI, targeted killings in the movie are generally and universally immoral. This was apparent when "Tatang" said that killing, worst, being a killer, is not easy especially when killing someone who never harms or someone who ought not to be harmed (e.g. old man, old lady, a woman). Such was also manifested when "Tatang" said that killing hounds. With that, the act of killing becomes unfathomably and inherently immoral which makes the act of not killing to be imperative and deontological. However, the movie showed that killing can be accustomed by employment of repeated violations of CI - repeated practice killings. Nonetheless, I believe that killing cannot be accustomed. The CI duty not to kill may however be ignored which would also tantamount to immorality.

Furthermore, the circumstances wherein "Tatang" and "Daniel" have "good" reason/purpose of killing which is to provide for their family, and that their culture/environment being in jail have just contributed to dwindle the command of their morality are not justified under Kant's theory on CI. Under Kant's CI, killers should not kill and should not treat the victims merely as instruments/means of their (killers) obligations to their respective family. The duty not to kill or the duty to preserve human life, is higher than the duty to provide the means of the family and that, the latter duty is not a valid consideration. Otherwise, "one needs to kill in order to provide for the family". Thus, the targeted killings in the movie are indeed immoral.

References: " Philosophy" by James W Nickel and David A Reidy and "Immanuel Kant and the Categorical Imperative" by Shandon L. Guthrie

4. The following are tools for the protection of human rights:

i. National Report for Universal Periodic Review - Human Rights Council (HRC) through troika conducts a four-year cycle of performance evaluation on how member states comply to UN Charter. The member State under review prepares a national report on the ups and downs of Human Rights System in their country. After the review, the troika submits an outcome report of summary evaluation and recommendation. The final outcome report (non-binding) will then be recommended to be adopted by the State under Review. ii. Special Procedure Mandates - HRC issues resolutions that address specific State situations or thematic (not specific) issues that concern all states. This tool do not require the exhaustion of domestic remedies because it is limited to fact finding and gathering information made by mandate holders. Mandate holders only examine and not adjudicate. In addition, State Consent is required. Meaning, the State must first invite the special procedure mandate.

iii. Complaint Procedure of HRC- addresses consistent patterns of gross and reliably attested violations of all human rights and fundamental freedoms occurring in any part of the world and under any

circumstances. This complaint procedure is the only universal complaint procedure covering all human rights and all fundamental freedoms in all States Members of the United Nations. This procedure is confidential, with a view to enhance cooperation with the State concerned.

iv. Complaint Procedures of Treaty Bodies or Optional Complaint Procedure - Individuals are allowed to complaint violations only under the five treaty bodies: Human Rights Committee, CAT, CERD, CEDAW, and CRPD. State consent is required. Treaty bodies adopt decisions on complaints, called 'views' or 'opinions', by consensus. However, these 'views' are not legally binding.

v. State Reporting - State parties to the core UN Human Rights treaties undertake to report regularly on how they implement the treaty protections at the national level. When states failed to submit reports despite repeated reminders from a treaty body, the committee of the relevant treaty body may initiate a "review procedure" (a process of consideration). The provisional output of analysis of State report are drafted and transmitted to respective states for comments. Where the State does not respond, the treaty will publish the concluding observations.

Given the aforementioned tools, I found the Complaint Procedure of HRC to be the most effective tool for protecting human rights. Not all individual or group complaints are covered by documented reports of the State nor certain UN officials or mandates. With this tool, an individual or group can raise complaint to the international level subject however to admissibility criteria. Also, domestic remedies may not be exhausted provided that it appears that such remedies would be ineffective or unreasonably prolonged. Lastly, complaints can be submitted against any country irrespective of whether the country has ratified any particular treaty or made reservations under a particular instrument.

References: "The United Nations Human Rights System: How to Make it Work for You" by United Nations New York and Geneva (2008) and "United Nations" by Markus Schmidt

5. Reservation is made by states to limit their obligations under a particular treaty. It allows state parties to exclude one or more respective state obligations under the international treaty and therefore state parties can refuse to recognize or apply guarantees of human rights. Reservations also allow state parties to modify their obligations such that the regulation is only applied if it is in accordance with state law.

Art 19 of the Vienna Convention provides that, states may formulate reservations to a treaty especially when a treaty prescribes but not when a reservation is prohibited by the treaty or, more problematically, when a reservation would be incompatible with the object and purpose of the treaty. However, human rights bodies have more specific approach to the permissibility of the reservations based on the defense of human rights’ “objective” character.Most human rights treaties neither allow nor specifically exclude reservations, so that most of the discussion has focused on whether certain reservations could be considered compatible with the “object and purpose” of treaties. The object and purpose have been understood to be more broad in such a way that they legally create binding standards for human rights.

HRC assessed and evaluated reservations through a purely consensual approach of acceptability (whether or not reservations are accepted). It has also been considered that international human rights treaties are intended to become universal. In this approach, human rights treaties must be universally accepted before it enter into force. Yet states in the human rights context are less likely to object other states' reservations since they are not affected by those. Consequently, HRC opined that the consensual approach is inadequate for ICCPR because it would be unsafe to assume that a non-objecting state thinks that a particular reservation is acceptable. So, a new rule has immerged to an increasing axiological one wherein reservations are evaluated through its validity - whether or not they are generally accepted values. With this approach, reservations do not have to be accepted by all states for human rights treaty to enter into force. Hence, the reserving states can still be a party to the treaty even if other state parties object to their reservations. As to the third state under this approach, the fact that such state accepts or objects another state's invalid or valid reservation certainly does not make the reservation applicable between them. Example, state A could not say that it is not bound by the ICEDAW simply because it objects state B's reservation to ICEDAW. It is to be taken account that, human rights treaties are not a web of inter-state exchanges of mutual obligations. they concern the endowment of individuals with rights. The principle of inter-state reciprocity has no place.

Reference: Nature of Obligations by Frederic Megret

6. The international human rights obligations are imbued with a special character due to the following similar reasons by Frederic Merget and other International Human Rights Bodies:

i. Human persons are their subject: State parties are primarily committed to respect human rights vis-a-vis with persons within their jurisdiction (not vis-a-vis with other states, as to general international laws).

ii. Human rights treaties are not dependent to the reciprocity of state obligations. Instead, they have a substance that is inherently of a high normative worth, above and beyond states' consent to be bound by them.

iii. Contracting states do not have any interests of their own; they merely have, one and all, a common interest to accomplish the high objective and purposes of the convention.

iv. Obligations undertaken have essentially objective character (erga omnes - towards everyone) to protect the fundamental rights of individual human beings from infringements by any high contracting parties. Hence, the objective is not a scientifically proven one but a non-strictly dependent state commitment which effect to something relatively unilateral about states. In that way, obligations were owed towards the international community as a whole so that by their very nature they are the concern of all states.

v. They are not a multilateral treaty of traditional type. States can submit to obligations for the common good, not in relation to other states or their own benefits, but towards all individuals within their jurisdiction.

vi. They were already, at least morally or philosophically, recognized by state parties even prior state commitments/membership. Hence, being a state party then is a declaratory of state obligation.

vii. They appear as the cement that binds groups of states together in a collective project that is domestic, transnational and supranational.

For me, human rights obligations are imbued with a special character because of the Universal, Objective and Unfathomably Inherent Obligations that need to be declared.Reference: Nature of Obligations by Frederic Megret

7. In the implementation of international human rights obligations, state parties have the responsibility to respect, protect and fulfill human rights within its jurisdiction.

To do so would require the state parties to establish rules of law at the national level. By becoming parties to international human rights treaty, states assume obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights. Nonetheless, this state obligations (respect, protect, fulfill), may be apparent even in a single legislation.

Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual complaints or communications are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.

A State will however only incur international responsibility for a human rights violation if it has failed to provide the alleged victim with an adequate and effective remedy through the workings of its own courts or administrative authorities. The requirement at the international level that all effective domestic remedies must have been exhausted before an alleged victim’s complaints can be considered by an international

monitoring body of a judicial or quasi-judicial character has been introduced precisely in order to allow the State itself to remedy the wrongs committed. This also means that the establishment of the various international machineries for the protection of the human person is in fact “subsidiary” to the available domestic systems for safeguarding the individual, since they “become involved only through contentious proceedings and once all domestic remedies have been exhausted”. References: " International Human Rights Law and the Role of the Legal Professions: A General Introduction

8. Bona Fide Occupational Qualification (BFOQ) implies that the employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job.

The Supreme Court of Canada in the case of British Columbia (BSPSERC) v. The British Columbia Government, adopted the so-called "Meiorin Test" in determining whether an employment policy is justified. Thus, setting the requirements for the application of the doctrine BFOQ.

Under this test,

i. The employer must show that it adopted the standard for a purpose rationally connected to the performance of the job

ii. The employer must establish that the standard is reasonably necessary to the accomplishment of that work-related purposeiii. The employer must establish that the standard is reasonably necessary in order to accomplish the legitimate work-related purpose. 

Yes, as anent to the second question, the Philippines have adopted the doctrine of BFOQ through the provisions in its labor code which provides that "An employee who fails to meet the continuing qualification for the job can be dismissed".Moreso, the Supreme Court of the Philippine have upheld and allowed valid classification or distinction based on the following test:

i. There must be a substantial distinction

ii. The distinction must be germane to the purpose of the law

iii. The distinction is not limited to existing conditions only

iv. The distinction must apply equally to all members of the same class

To be more specific, the Philippine Supreme Court in the case of Yrasuegui vs. Philippine Air Lines, upheld the dismissal of a flight attendant due to failure to maintain ideal weight, Inc and ruled that, "the business of PAL is air transportation. As such, it has committed itself to safely transport its passengers. In order to achieve this, it must necessarily rely on its employees, most particularly the cabin flight deck crew who are on board the aircraft. The weight standards of PAL should be viewed as imposing strict norms of discipline upon its employees. On board an aircraft, the body weight and size of a cabin attendant are importantfactors to consider in case of emergency. Aircrafts have constricted cabin space, and narrow aisles and exit doors."

The SC in this case held that in order to justify a BFOQ, the employer must prove the following:

i. The employment qualification is reasonably related to the essential operation of the job involved

ii. There must be a factual basis for believing that all or substantially all persons meeting the qualification would be unable to properly perform the duties of the job

References: Article 282 of the Philippine Labor Code, British Columbia Public Service Employee Commission (BSPSERC) v. The British Columbia Government and Service Employee’s Union (BCGSEU), Yrasuegui vs. Philippine Air Lines and "Philippine Constitutional Law" by Cruz.

9. The United Nations Security Council cannot intervene to settle the South China Sea dispute on the basis of the international norm of R2P or the Responsibility to protect.

R2P is a new international security and human rights norm to address the international community's failure to prevent and stop genocide, war crimes, ethnic cleansing and crimes against humanity.

War crimes and crimes against humanity include:

i. murderii. mutilation, cruel treatment and tortureiii. taking of hostagesiv. intentionally directing attacks against the civilian populationv. intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitalsvi. pillagingvii. rape, sexual slavery, forced pregnancy or any other form of sexual violenceviii. conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities.

Meanwhile, genocide and ethnic cleansing include:

i. killing members of the groupii. causing serious bodily or mental harm to members of the group

iii. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in partiv. imposing measures intended to prevent births within the groupv. forcibly transferring children of the group to another group

The said crimes do not exist in the South China Sea Dispute. Hence, the United Nations Security Council cannot intervene to settle the South China Sea dispute on the basis of the international norm of R2P or the Responsibility to protect.

However, the United Nations Security Council may and can intervene to settle the dispute in the South China Sea but not on the basis of R2P.

References: http://www.responsibilitytoprotect.org/, http://www.icc-cpi.int, http://www.unfoundation.org/what-we-do/issues/united-nations/the-un-security-council.html

10. Based on 2011 Human Rights Reports: Philippines the leading human rights problems were as follows: continued arbitrary, unlawful, and extrajudicial killings by national, provincial, and local government agents and by antigovernment insurgents; an under resourced and understaffed justice system that resulted in limited investigations, few prosecutions, and lengthy trials of human rights abuse cases.

However, what is evident for me is the problem on the child protection. I can see it everywhere: the moment I go outside the condominium vicinity, children are selling "saging na saba" or children are begging; while inside the tricycle, I can see "mga batang namamasura" on the street; upon reaching the jeepney station, there are children selling different kinds of "merienda". Same was evident when I was still in Manila around UST, or when I go to Tondo, Divisoria, Morayta, QC and Rizal. In Welcome Rotonda and in Taft, there are children who snatch or "nag-rarugby". In PGH, there were quite number of child patients being raped. In

Malate, there are a number of children in the streets. Even in the islands near Zamboanga City, Tawi, Basilan and Isabela, as well as in the municipalities of Zamboanga, problems on child protection is obvious.

This year, the number of child trafficking and rape cases in Manila handled by the International Justice Mission have not decreased.

Proper implementation and enforcement of laws, proper and right allocation of funds - that would benefit children on the long term, implementation of awareness system, collaboration with different national and transnational NGOs, and Government Unity are keys to solve the problem.

Reference: http://www.ijm.org/news/justice-gwen-one-ijm-manila%E2%80%99s-fastest-cases-ever, http://www.hrw.org/world-report/2013/country-chapters/philippines?page=2, http://www.state.gov/j/drl/rls/hrrpt/2011/eap/186301.htm