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Roberto Concepcion, International Law and Human Rights,
2 Phil. Int'l L.J. 572 (1963)

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INTERNATIONAL LAW
AND HUMAN RIGHTS

ROBERTO CONCEPCION

The problem of human rights is as old as human nature and

human society; it has always been with us. Viewed in contem-
porary context, the problem has a new and special significance,
for one of the conditions of present-day international relations
is precisely a widespread and still increasing demand, among most
of the peoples of the world, for greater recognition of, and de-
ference to, the manifold value claims commonly summed up as
human dignity and human rights. This well-nigh universal demand
is indeed part of the so-called "revolution of rising expectations",
which is changing the environment of international relations and
international law.

I will limit myself to a consideration of certain aspects of

the interrelation of international law and human rights. One
preliminary aspect is that human rights have traditionally been
the concern of international law. In the past, of course, that con-
cern has been partial and fragmentary, but, it has, in some
measure, always been there. The historic nexus between human
rights and the law of nations may be found in conceptions of
natural law. Historically, human rights, conceived as standards
to which the sovereign itself must conform, have frequently been
grounded upon conceptions of natural law, which, in turn, played
an important role in shaping and influencing the early history
of international law. It should nonetheless be underscored that
the specific protection to human rights afforded by international
law -in other words, the extent to which obligations based upon
human rights were embodied and projected in international law
- was modest and indirect. Thus in traditional law, a state
was bound to observe certain minimum standards of human rights
in its treatment of aliens within its domain, standards which,
paradoxically, it was not obliged to maintain in dealing with its

* Associate Justice of the Supreme Court, President, Philippine Society of

International Law.
1963] HUMAN RIGHTS AND INTERNATIONAL LAW

own nationals. A partial explanation of this condition may be

found in the traditional doctrine that sovereign states constituted
the only approprate subjects of international law. The law of
nations was thought of as a law among nations. In an unorgan-
ized or loosely organized community of equally sovereign political
units, the treatment that the state meted out to its nationals was
regarded as the exclusive concern of that state; such treatment
was technically considered as a matter within the domestic juris-
diction of each state.

Since the last century, it has increasingly been recognized that

the treatment by a state of its own nationals, or the observance
and protection of their human rights, are a legitimate concern of
the international community. This lesson was driven home to
the community, with particular clarity and poignancy, by the
last World War. The gist of this lesson is that the extent to
which human rights are honored, in deed as in word, in the
internal political and social structures of a country, has an impact
upon the policies pursued by it in the external international order.
More specifically, the degree to which the domestic institutions
of a nation embody voluntarism, pluralism, and deference to
human rights, affects the capacity of the nation to engage in wars
of aggression and aggrandizement, and the probability of such
undertakings on its part. Indeed, as far back as the last century,
the distinguished international jurists, Frederick de Martens,
evinced an insight into the relation between the internal value
systems and the external behavior of territorial politics.

"I have tried to show the existence of a connection

between the internal system and external relations of
each country in successive historical periods from an-
tiquity to our times and I have reached the conclusion
that, when civil and political rights in a State are based
on respect for human personality and its inalienable
prerogatives, the foreign policy of the government
seeks, as a natural result, to protect the legitimate in-
terests of the nation in its external affairs in uphold-
ing order and right abroad and in encouraging every
attempt to spread the benefits of civilization throughout
the world. Such a foreign policy should generally pro-
duce firmly established peaceful relations and respect
for the acquired rights of others. On the other hand,
relations with states where human personality enjoys
no rights, but is oppressed, surrendered to arbitrary
caprice, and subject to brutal force, cannot be estab-
lished on a firm basis or develop."'
THE
1 TRAITE DE DROIT INTERNATIONAL as quoted in JENKS,
COMMON LAW OF MANKIND.
PHILIPPINE INTERNATIONAL LAW JOURNAL [VOL. 2, No. 4

Thus it is that, in 1945, the peoples of the United Nations,

in their determination "to save succeeding generations from the
scourge of war", declared as their primary end the reaffirmation
of "faith in fundamental human rights, in the dignity and worth
of the human person, in the equal rights of men and women and
of nations large and small". (Preamble, UN Charter). Thus,
also, the statement of purposes of the UN -which was designed
as a collective security organization - includes the "[achieving]
of international cooperation *** in promoting and encouraging
respect for human rights and for fundamental freedoms for all
2
without distinction as to race, sex, language or religion."
Parallel with this new international emphasis on human
rights is the erosion of the traditional doctrine about individual
human persons being merely the objects of international law.
The doctrinal position thus emerging is that individuals too may
be subjects of the law of nations and that, as such, individuals
may be endowed directly with rights and burdened with obliga-
tions under international law. This is, of course, but formal
recognition of the sociological and psychological fact that the
individual is the ultimate unit of society, national or international,
and that both national political communities and international
organizations, national law and international law, are but insti-
tutions established and maintairned for the benefit of human per-
sons and the satisfaction of human needs.
With the recognition of the relation of human rights and
world order, and the gradual acceptance of the individual as a
subject of international law, the problem of human rights has
not been, however, resolved. Two major and tightly related as-
pects of the problem- that of formulating the specific content
of binding human rights commitments, and that of devising means
for the implementation and enforcement of such commitments
when formulated - remain as formidable as ever.

Consider the first of these aspects - that of realizing what

has been described as "the treaty approach to human rights".
The Universal Declaration of Human Rights, at the time it was
adopted, was explicitly and repeatedly described as a "common
standard of achievement' -- as a "declaration of basic principles",
but "not a treaty", "not an international agreement", "not a
statement of legal obligations". The Universal Declaration is
commonly acknowledged as possessed of great moral authority,
but it has not been possible, since 1948, to achieve agreement on
a Universal Covenant or Convention of Human Rights To a

2 Article I [31, UN CHARTER.

574
1963] HUMAN RIGHTS AND INTERNATIONAL LAW

great extent, of course, this difficulty is traceable to the existence

of our world of, not one, but multiple and mutually antagonistic
systems of international public order. Each system postulates its
own conceptions about the nature of man and of law, and about
the position of man in society. Understandably, each system
defines differently those claims against itself which it is prepared
to honor as rights of man.
The drafting history of the Universal Declaration indicates
the tremendous difficulty in obtaining a verbal formulation accep-
table to the representatives of different systems of public order.
The deep and deadly conflict between these systems has certainly
helped to insure failure of the efforts to secure approval of draft
human rights convenants. The difficulties have been such that
some observers have begun to question whether the securing of
legal commitments on a global scale remains a valid objective.
They point out that the only existing general human rights
Covenant is the European Convention on Human Rights, a con-
vention that is for a region displaying a certain minimum cul-
tural and ideological unity and consensus. Moreover, though
agreed verbal formulas may be achieved, there would of course
remain the further problem of assuring a reasonable uniformity
in the practical interpretation of the same language by the various
parties to a covenant. In the rhetoric of diplomacy, particularly
of parliamentary diplomacy, one may be astonished at the fre-
quency and ease with which the same words are made to refer
simultaneously to things that are utterly and fundamentally dif-
ferent.
Some of you may feel that I have overstated the difficulties
involved in this matter. A recent commentator - Mr. Moskowitz
-may be right when he said:

"Indeed, unless we assume that, despite the relativity

of certain human rights and freedoms and the local color-
ation of others, they can, within reasonable limits, be
defined in commonly understood terminology, there is no
basis for the principle of international concern for human
rights inscribed in the Charter. Nations cannot act in
concert in the pursuit of objectives which mean different
things to different people. In such case there would be
little substance to the Universal Declaration of Human
Rights even as a standard of achievement. * * *"

My purpose has been to invite re-examination of the realism

of the avowed objective of achieving universally valid legal com-
mitments about human rights generally. Perhaps, in view of the
apparent failure in the efforts along those lines, the path of
progress may lie in the direction of more modest and specialized

575
PHILIPPINE INTERNATIONAL LAW JOURNAL [VOL. 2, No. 4

conventions. For instance, efforts may be exerted towards secur-

ing regional covenants of human rights for areas of the globe
exhibiting a fundamental unity of viewpoints about public order.
An obvious matter for investigation would be whether Southeast
Asia possesses sufficient unity to make a Southeast Asian Con-
vention on Human Rights a viable thing. Specialization may also
be directed along fundamental lines. By this I mean that, where
efforts to arrive at comprehensive covenants covering all human
rights held significant have failed, covenants relating to single
rights, or clusters of related rights, might conceivably be more
feasible. A separate convention on, for instance, the right to be
free from arbitrary detention, or on freedom of religion, or on
the right to education, etc., may perhaps be sought with more
hope for success. Should a sufficiently large network of partic-
ular conventions be established, the world might yet awake one
day to find itself with the equivalent of a Universal Covenant
on Human Rights.

576
THE PHILIPPINES, ASIA
AND HUMAN RIGHTS

RAUL S. MANGLAPUS*

You have asked me to come to speak to you on human rights.

I thank you for this invitation.
I take it that you have not asked me to come to define human
rights for you.
There is no delbate today on what human rights are.
But the world of the East, as well as the world of the West,
continues, it seems, to be in doubt not about what these rights
are but about who these rights are for.
I was in Washington last November when an advocate of
human rights for all his countrymen was killed, mourned and
buried almost exactly a hundred years after there had similarly
been martyred one of his predecessors, who had decided that
written declaration of human rights were not enough, that to
insure that they applied to black as well as white, it was worth
plunging a nation into civil war.
In our country there would seem to be agreement that human
rights are for all Filipinos, Christian or Muslim, Liberal or Na-
cionalista, man or woman, rich or poor, ana that whoever violates
these rights must answer to his conscience, to his God, to his
people and to the law.
But these days we are being led by some of our national
policies, it seems, to think in the following presumptuous and
fatal terms: that human rights may be for all Filipinos, but they
are not necessarily for all Asians. It is the same fabrication
that some Westerners would say about Asia, that Asians are not
fit for democracy or that some Asian despots would say of their
own people, that their people are never ready for democracy.
When a N esterner says this we might dismiss him as con-
tinuing to live in the deluding and intoxicating days of Western

Senator of the Philippines.

PHILIPPINE INTERNATIONAL LAW JOURNAL [VOL. 2, No. 4

colonialism. When an Asian despot says this we might shrug him

away for attempting to justify his absolutism by slandering his
own people. But when Filipinos begin to think this, that they can
live in full enjoyment of liberty in a sea of oppression, when they
begin to suspect that democracy might be better "suited" to our
conditions if we modified it, then our human rights are indeed
in peril and it is time to pause, to think and to act.
Human rights can be fully enjoyed only in a democracy. And
democracy is not democracy if it is adorned with such deceptive
embellishments as "guided" or "functional."
Ah, but say some Westerners, Ah, but say some Asian leaders,
Asia is not fit for democracy, there is nothing in Asian tradition
that is even remotely connected with government of law. It has
always been government of men.

For instance, is this not the tradition of China? Were not

the Chinese people for dozens of centuries, until the Manchus
fell in 1911, ruled at the apex of the most highly centralized
bureaucracy in world history? Did not this Son of Heaven, this
absolute monarch claim to derive his powers from heaven above
and not from the people below? Was not his authority, therefore,
theoretically unlimited?
Was this not the tradition in Japan? Did it not take a con-
quering white god named Douglas MacArthur to put an official
end to the belief that the Japanese Emperor was physically des-
cended from the Sun Goddess Amaterasu and that therefore his
powers were unbounded?
Was not this identification with divinity even more complete
in Hindu society Was not the ruler in India and in the Hinduized
Southeast Asian societies, not just representative of divinity or
descended from divinity? Was he not manifest divinity itself?
Indeed, the answer to all these questions is -yes. Asian
political tradition has its strongly authoritarian currents.
But what about Western tradition? May we not make out
a similar case against it?

Democracy, they say, began in Athens; Athens gave us the

very word "democracy." But they do not often mention the fact
that three-fifths of the population of Athens consisted not of
citizens but of slaves.

Rome, they say, was a republic; Rome gave us the very word
"republic." But they do not often tell us that Rome also gave us
the word "dictator," and the word "emperor;" that we have in
1963] HUMAN RIGHTS, ASIA, THE PHILIPPINES

the Roman Emperor Nero what is perhaps the very embodiment

of the despot, and that it was the Roman Emperor Justinian who
formulated what is surely the most pithy and the most enduring
of the maxims of tyranny: Quod placuit principi legis habet
vigorcnm - "The pleasure of the prince hath the force of law."
Was not feudal monarchy the only government known to most
people of Europe throughout the Middle Ages?
Was not the Magna Carta, which today we revere as a de-
mocratic document, in fact a reactionary charter which asserted
the rights not of the common people of England but of its rich
feudal barons who thereby merely enhanced their own power
at the expense of the King?
Did not Machiavelli of Italy teach that the purpose of govern-
ment is not service to the people but simply the acquisition and
the increase of power?
Did not Louis XIV of France glorify absolutism and did not
Louis XV perfect it, and did he not say: "Apres moi, le deluge"
leaving the deluge to his successor?
The answers to all these questions is also-yes- and in-
deed at this point we appear to be well on the way to proving
that Western tradition was anti-democratic.
And we would so prove it with ease if we forget the Coun-
cils of the Christian Church that stood for conscience and for
truth, if we forget the parliaments of England, France and the
Germanic States, if we forget the citizens of the New West who
fought for representation before taxation and the right to seek
redress of grievances; if we forget St. Robert Bellarmine, St.
Thomas Aquinas, John Locke, who, between the three of them,
laid down the philosophical basis for representative democracy.
But in this same way, we could also forget Confucius. We
could forget that he taught that the Chinese Emperor lost his
heavenly mandate if he ceased to be an example of obedience to
heaven, if he neglected the prescribed rites, and above all, if he
became a tyrant.
We could forget that this same Confucian teaching, centuries
ahead of the American Declaration of Independence, permitted re-
volution of the lowliest peasant as the legal instrument for
redress.
We could forget that ancient Chinese bureaucracy had its
civil service, to which appointments were made only after rigid
examinations. True, these examinations were available only to
the ruling caste of Mandarins. But was it not only recently that

579
PHILIPPINE INTERNATIONAL LAW JOURNAL [VOL. 2, No. 4

the British and Western European foreign service and the top
positions of their civil service were opened to others than those
of noble and influential families?
We could forget that Japanese tradition also produced Zen
Buddhism, with its emphasis on the autonomy of the individual
and the dignity of private opinion.
We could forget that in the empires of Southeast Asia, the
King, being assured of sufficient revenues and concubines, left
to the local village communities the conduct of their own affairs,
that in this way was the adat, the tribal or customary law, deve-
loped in Java, just as the wergeld or trial by ordeal evolved among
the Germanic tribes and just as was constructed the immortal
structure of British Common Law.
And finally, we could forget that our own islands were never
really under an absolute imperial Malayan rule - not even under
the Srivijaya and Madjapahit empires which, coming too early
for modern ships and weaponry, could only have exercised a light
cutural influence over our own little kingdoms. Thus were our
balangays born, those autonomous settlements all over the archi-
pelago whose three-level society was no less democratic than the
City States of ancient Greece, whose patricians were the Mahar-
likas, freemen, the timaguas, and slaves the alipins; which de-
veloped, long before the European came to Asia, their own tax
system so that their word for tax - buiz - continues, in all our
dialects, even today
If Western colonialism had not intervened in Asia, we Asians
might have developed several indigenous forms of free societies -
not parliamentary, perhaps - nor presidential - but certainly
Asian and democratic.
But of course we must proceed from reality. And the reality
is that the democratic forms available to us are Western-grown -
the presidency, the representative parliament, the independent
judiciary, the delicate balance of powers that has proven itself
in the defense of human rights in Asia and Africa, in Latin
America as well as in Europe and North America.
It is proving itself in the Philippines. And I think we are
entitled to challenge anyone to prove that our experience with
these institutions has been any less successful than even that
of the United States.
Our democracy is not perfect. And we have not solved all
our problems. But which country has?
We are also reported abroad as "coarse" and "corrupt" - the
same charges that the Englishman Dickens and the Frenchman

580
1963] HUMAN RIGHTS, ASIA, THE PHILIPPINES

de Tocquevilla wrote of the Americans in the equivalent stage of

their development in the early nineteenth century.
When one of our outgoing Presidents, having lost his bid
for reelection, spent his last night in office, signing appointments
to the judiciary and the executive department, these "midnight
appointments" were sneered at here and abroad.
No one remenbered that John Adams, the second President
of the United States had done exactly the same thing and had
been called down in history books for it.
No one remembered that while the midnight appointments of
our President were later reversed by an independent and vigilant
Philippine Supreme Court, those of John Adams were never legally
repudiated.
I told my American audiences: "If our problems take identi-
cal shape at the corresponding moments in our histories, it is
because our approaches to the task of nationhood have been at
least strikingly similar.
"If we seem to cast about without roots as you once did, it
is because while revering the past we move to our future by
breaking the chains of tradition as your forefathers once struck
out to make a new life by breaking away from the prejudices and
the delaying habits of the ancestral lands.
"If we seem to be less concerned with amenities than our
neighbors may be, more "coarse" and "assertive of a spurious in-
dependence," as Dickens once described you, it is perhaps because,
like you, we prefer to do things by stressing the supremacy of
the individual and the indispensable value of his initiative."
I am not suggesting my friends, that we take our problems
lightly. And I do not stand here to make excuses for the mistakes
which our government at last is beginning to admit.
I am saying that we should not let these problems provide us
with the excuse for taking our precious national assests lightly-
our free press, our alert judiciary, our stable institutions, our
democratic values.
For there is danger that we might, in pursuing other goals,
dilute these values or even exchange them for false ones.
Today our government is seeking to project our image in
Asia as the creator of the new Malayan unity.
Pride in our race, pride in our beginnings -these are good
things. Rizal himself said, "Ang hindi marunong lumingon sa pi-
nanggalingan, ay hindi makakarating sa pinaparoonan."
PHILIPPINE INTERNATIONAL LAW JOURNAL [VOL. 2, No. 4

But to pursue a policy based exclusively on race can bring

disaster. It brought disaster to Germany. It brought disaster
to Japan, whose soldiers invaded our shcres and attempted to rally
our people behind them by comparing the color of their skin to
ours.
Our people refused to follow those soldiers whose skin was
almost as brown as theirs. Instead our people fought and killed
them. For they felt that there was something at the moment more
important than race, namely, the dignity of man
Jose Rizal, the greatest Malay, had a Chinese grandfather.
If he had lived, his children would have been half-European.
Ramon Magsaysay's grandfather was a bearded Spaniard and so
was Manuel Quezon's.
But Rizal, Quezon and Magsaysay had one thing in common.
They were Filipinos. And they believed in human rights.
And were they living today they would probably say to us,
"The next time someone comes to you and says to you - look my
skin is like yours, I am your brother - before you rush to embrace
him, say to him first -I like the color of your skin. But what
about the color of your principles? Do you believe in human
rights - and do you defend them? If you do not and because
you come as a friend, I will shake your hand. If you do, I will
embrace you as a brother "
For aside from the Communist colonialism and the last stub-
born, dying vestiges of Western colonialism, there is a new colo-
nialism in the world today.
Salvador de Madariaga has said, "A country may be the
colony of its own government."
There are new governors of indigenous skin, who deny to
their people as much as was denied to them by their former West-
ern masters.
They will not have their people forget how the Western
colonialists imprisoned anyone who would speak for freedom,
while their own jails today are packed with men whose only
crime was to edit newspapers of independent thought or to differ
with the policies of the government.
They are subscribed to the Universal Declaration of Human
Rights, in which we read:
"Article 19. Everyone has the right to freedom of
opinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive
and impart information and ideas through any media
and regardless of frontiers.
19631 HUMAN RIGHTS, ASIA, THE PHILIPPINES

Article 21. (1) Everyone has the right to take part

in the government of his country, directly or through
freely chosen representatives. (2) Everyone has the
right of equal access to public service in his country. (3)
The will of the people shall be the basis of the authority
of government; this will shall be expressed in periodic
and geneuine elections which shall be by universal and
equal suffrage and shall be held by secret vote or by
equivalent free voting procedures."
And when they are asked, "You are subscribed to this: why
do you not give those rights to your people?" they answer, "Not
yet; our people are not educated," echoing the old excuse of
Western colonialists for refusing freedom to their colonies and
reminding us of what Ferdinand Blumentritt says in his prologue
to Rizal's annotations to Morga's Sucesos in 1899. "Si, es verdad,
que los Filipinospor lo general 5on poco instruidos, pero el ejemplo
de Bulgaria prueba que la vida constitucional no depende del
numero de analfabetos y letrados," "Yes it is true that the Filipi-
nos in general are not well-educated, but the example of Bulgaria
proves that constitutional life does not depend on the number
of illiterate and educated people."
In other words, the best education for democracy is demo-
cracy itself, from top to bottom, the freedom to choose, to decide,
to make mistakes and to learn by them.
My friends, Article 28 of the Universal Declaration of
Human Rights says:
"Article 28. Everyone is entitled to a social and
international order in which the rights and freedom set
forth in this Declaration can be fully realized.
Here in terms accepted by all the United Nations, is strongly
suggested the role for the Philippines in Asia today.
It is this, to join with, or if you will, to lead other democratic
Asians in the construction of a socal and international Asian
order based on human rights.
This role is valid, as valid as our claim to having launched
in 1896 the first successful democratic revolution in Asia.
This role is urgent, as urgent as the need for economic pro-
gress, for there is a direct relationship between human rights
and regional prosperity. When Western Europe was half free
and half totalitarian, she almost totally perished in the chaos of
mistrust. When all but two of her countries became democratic,
respecting the right of the individual and giving force to the
popular will, mutual trust was generated, economic cooperation
was born, and thus was produced the fantastic prosperity of
Western Europe today.

583
 PHILIPPINE INTERNATIONAL LAW JOURNAL [VOL. 2, No. 4

I propose an Asian democratic movement. I propose that,

with goodwill to all, we unite with those of our fellow Asians
who believe in human rights.
I propose that if the governments are not ready, we the
citizens seek to forge this union with the other citizens of Asia.
I propose that we organize and seek to spread this belief in
Asia, not by force, but by the moral influence of our very unity
and our inflexible stand for the liberties of man.
To mediate when one stands for something positive is good.

But to mediate merely to strike a posture in foreign relations

is an empty gesture that betrays a bankruptcy in national values.
We have a positive image to project for the good of Asia
and we have hidden it from view.
What is this image? I wll repeat what I have said else-
where, from Washington to Kuala Lumpur.
We are not a smali nation. We are 30 million people, as
many as our former colonizers, the Spaniards, are today, as many
as the Japanese during their great awakening in the Meiji Era,
as many as the Americans in the beginning of their industrial
revolution.
We have the broadest middle class in Southeast Asia.
Our managerial class is also the broadest and thousands of
our professionals technicians are working in the Middle East,
Africa, Southeast Asia, Australia and Europe. Two thousand
five hundred of our doctors are in the United States and five
hundred in Canada.
We have a wealthy land- seven thousand islands and vast
waters in which God has stored riches for our exploitation.
We have the most stable political system in Southeast Asia.
The Philippines is the only country in the whole of Asia, outside
of Japan, where the ruling political party has ever been changed
without the use of force.
We are a Christian people who lcve and respect our minor-
ities.
And we are a people who, in our history, have shown a capa-
city to die for freedom.

This is an image that deserves to be polished for all to see,

a record that can command respect, an example that can inspire.