CHAPTER VI valid, although it could mean a possible violation translating the treaty into a law of local

APPLICATION, ENFORCEMENT, by the State of its treaty obligations. application, in dualist fashion.
AND LIMITATION  Lex Posterior principle is a doctrine which
provides that in the event that there are
inconsistencies between domestic statutes, treaties, VI. A. 2. INTERNTIONAL APPLICATION OF INTL.
VI. A. 1. DOMESTIC APPLICATION OF INTL. or international laws, the most recently enacted HUMAN RIGHTS LAW (IHRL)
HUMAN RIGHTS LAW (IHRL) will govern.
Consent of the State
2 Theories on the Domestic Applicability of Example: Philippines
International Human Rights Law  treaty obligations are usually taken into o May be expressed in different forms such as:
consideration in the enactment of laws.
o Monist Theory 1. Signature;
 international and domestic law comprise one  has signed a lot of international human rights
legal system. treaties but the PH judges will still consider 2. Exchange of instruments constituting a
international laws as having less binding effect treaty;
 in Absolute Monism, international law compared to domestic laws.
automatically becomes domestic law, without need 3. Ratification;
to enact a separate national law.  Congress has to pass domestic laws such as:
4. Acceptance;
 Here, the domestic laws (including the 1) Child Abuse Law for CRC;
Constitution), that contravene international law 2) VAWC for CEDAW, in order to enforce 5. Approval / Accession: or
may be declared invalid. international conventions locally.
6. By any other means, if so agreed.
 International human rights law dictates
domestic laws, and the State must enact domestic Incorporation Clause of the Constitution 1) Signature
laws to conform to the international law.
o The clause is not necessarily in conflict with the o Does not automatically mean consent of a State to
Example: Netherlands dualist attitude. be bound by the said treaty, if under the national
law, it is the act of ratification which operates to
o Dualist Theory o It is limited to the adoption of “generally accepted bind that State.
 international and domestic law are different principles of international law” as part of the law
legal systems. of the land. o Despite the presence of the signature, there must
still be the process of ratification, acceptance /
 International law does not become obligatory to o “Generally accepted principles of international approval to be done by the State.
its citizens until the State passes a corresponding law” is just one of the four (4) sources of
domestic law containing its provisions. international law. o Without the ratification, the signature may only
operate as a means of authentication and to show
 Here, local laws are usually revisited and o Thus, as long as treaty is concerned, it does not the openness of the signatory State for further
amended to conform to international law, but until become a law until Congress enacts one discussions on the treaty-making process.
such amendment, the local laws shall remain
 SIGNATURE AD DEFINITIVE 3.1) Reservation treaty and do not contravene the object and
REFERENDUM SIGNATURE purpose of the treaty.
o A unilateral statement, however phrased or named,
Means that the signature  Operates as the made by a State, when signing, ratifying, 3.4) Denunciation
becomes definitive only consent of a State to accepting, or acceding to a treaty, whereby it
once the signature is be bound by a treaty purposes to exclude or to modify the legal effect o Means the withdrawal by a State Party from a
confirmed by the State. when that treaty is not of certain provisions of the treaty in their treaty.
subject to ratification, application to that of State.
acceptance, or o Treaties such as CRC, ICESCR, and CEDAW, do
approval. o Reservations are not allowed when: not allow denunciation.

1) It is prohibited by the treaty;

2) Exchange of Letters or Notes VI. B. ENFORCEMENT MECHANISMS
2) It is not included in the reservations specified
o Consent can be expressed through exchange of by the treaty. Enforcement Mechanisms
letters or notes.
3) It is incompatible with the object and purpose o State and governments are guarantors and
o Here, there will necessarily be two (2) letters, if of the treaty. protectors of human rights and because of the
the treaty is bilateral, with at least one (1) coming Doctrine of State Responsibility, they can be
from each party. o A signatory / contracting state may object to a violators at the same tie.
reservation if it believes that it is incompatible
3) Act of Formal Confirmation with the object and purpose of the treaty.  individuals, juridical persons, groups, and
business entities, may be violators.
o The term “act of formal confirmation” is usually 3.2) Interpretative Declaration
used instead of ratification when used by an  it is necessary to distinguish violators and
international organization that intends to be bound o An instrument that is annexed to a treaty with the enforcement against State violators, as these
by a treaty. goal of interpreting or explaining the provisions of involve different means of enforcement.
the latter.
o State Parties may be allowed to limit, restrict, or o The law of state responsibility plays a central
modify the application of a treaty by: 3.3) Modification role in international law, functioning as a general
law of wrongs that governs when an international
1. Reservation; o Is the variation of certain treaty provisions only as obligation is breached, the consequences that flow
between particular parties of a treaty, while in from a breach, and who is able to invoke those
2. Interpretative Declaration; their relation to the other parties the original treaty consequences (and how).
provisions remain applicable.
3. Modification;
Note: If the treaty is silent on modifications, they
4. Denunciation. are allowed only if the modifications do not affect
the rights/obligations of the other parties to the
VI. B. 1. ENFORCEMENT AGAINST INDIVIDUALS o Aside from brining complaints before human
International Enforcement rights courts, States whose nationals have been
Domestic Enforcement victims of human rights violations by another
o Individuals may be brought to justice before State may opt to avail diplomatic means.
o In order to effectively protect individuals from hybrid courts ad hoc international courts, or before
infringements on their human rights, enforcement the ICC. o This may entail negotations and dialogues.
at the national level is necessary and desirable.
o ICC  its jurisdiction is limited to the crimes of
o Philippines has been practicing the enactment of genocide, crimes against humanity, war crimes, 3) Retorsion
national laws to enforce international human and crimes of aggression.
rights. o This may involve withholding of foreign
assistance (US) or stoppage of oil imports (oil-
 it translates a soft law into hard law, giving VI. B. 2. ENFORCEMENT AGAINST STATES producing countries).
more teeth, so to speak, and making individual
violators directly accountable. 1) Court Action o These are unfriendly acts which do not necessarily
constitute violations of rights of the offending
o Examples: o Where the violator is a State, redress may be State.
sought at the national, regional, or international
1) Revised Penal Code and other penal statutes courts. 4) Countermeasures
 to criminalize human rights violations,
particularly, the Crimes Against Fundamental o Regional level: regional human rights conventions o These are responses by a State to the wrongful
Laws of the State, punishes those guaranteed or treaties govern the manner by which human conduct of another, as a tool of self-redress.
under the ICCPR. rights commissions and courts may be accessed to
seek redress. 5) Military Intervention
2) New Civil Code
 Article 19 to seek compensation from damages o International Court of Justice (ICJ): only States o The use of armed force is still being resorted
from individual violators. may bring a case against another State. nowadays.

3) The Ombudsman and Revised Administrative o International Criminal Court: individuals and Examples:
Code heads of State may be tried for crimes defined and
 provides sanctions against violators in punished under the Rome Statute (or any other 1) The military intervention in Libya (2011) was
government service. treaty insofar as the crime of “acts of aggression” by virtue of a United Nations Resolution.

4) Protective writs such as writ of habeas corpus, o European Court of Human Rights: individuals 2) The use of force in Iraq, did not have the same
amparo, and habeas data. are allowed to directly bring a case against the authority as mentioned above.
State.
5) Restraining orders.
2) Diplomatic Means
 3) The derogation is to the extent strictly required
VI. C. RESTRICTIONS AND LIMITATIONS by the exigencies of the situation.

Restrictions and Limitations 4) The measures taken not inconsistent with the
State’s other obligations under international law;
o While the substance of human rights cannot be
taken away from human beings, its exercise may, 5) The measures taken do not involve
however, be regulated. discrimination solely on the ground of race, color,
sex, language, religion, or social origin.
o States do not have the absolute discretion and
prerogative to restrict the exercise of human rights.

o Their actions must be bounded by certain

parameters and they must take into consideration
the following:

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; and

4) The law must be strictly interpreted against

restrictions.

Derogation

o Some rights are non-derogable, and some may be

suspended, or restricted by states.

o Article 4 of ICCPR allows the derogation of

rights, provided that:

1) There is a public emergency which threatens the

life of the nation;

2) The existence of public emergency is officially

proclaimed;