IHL Vs.

IHRL

"No cause is more worthy than the cause of human rights and they are what makes man [woman]
human.
- Jose Pepe Diokno
IHL IHRL
Definition - International Humanitarian
Law is a set of rules that, in
times of armed conflict.
Seek to:
1] protect people who are not
or are no longer taking part in
the hostilities
and
2] to restrict the means of
methods of warfare employed

Seeks to mitigate the effects

of war.

Oftentimes called the "Law of

Armed Conflict (LOAC)"

Part of International Law

Origin “"I was a mere tourist with no
part whatever in this great
conflict; but it was my rare
privilege, through an unusual
train of circumstances, to
witness the moving scenes
that I have resolved to
describe. In these pages I give
only my personal
impressions; so my readers
should not look here for
specific details, nor for
information on strategic
matters; these things have
their place in other writings”

- Henry Dunant
Applicability IHL is applicable in times of IHRL , in principle applies at
armed conflict, whether it is all times, both in peacetime
international or non- and in times of war
international in character.
However, certain rights
 There is no derogation are derogable on account
of rights in IHL of public emergency, like
war. But some rights are
non-derogable
Sources UDHR 4 Geneva Conventions
ICCPR of 1949
ICESCR
CEDAW 2 Additional Protocols
CRC of 1977 Hague Convention
CERD
CAT Other Conventions:
CRMW 1 Montreux Document
CRPD 2.Ottawa Convention
CAED 3.Cluster Munitions
Convention
Coverage All persons without Persons who do not or are
distinction as to nationality, no longer taking part in
race, color, religion, age, sex, hostilities (hors de combat) –
ethnicity, or other social Common Article 3
factors
GC1 - wounded and sick in
the field
GC2 - wounded, sick and
shipwrecked at sea
GC 3
- prisoners of war
GC4 - civilian population
IRL binds governments in IHL binds actors to the armed
their relationships with conflict, both state and non-
individuals state actors

Individuals do not have IHL imposes obligations in

specific duties under IHRL
but may have individual
criminal responsibility for
international crimes
individuals and provides that
persons may be held
criminally responsible for
grave breaches of the Geneva
Conventions
Enforcement United Nations Human 1. International
Rights Mechanisms Criminal Court
1. Charter-based 2. International
mechanism Committee of the
2. Treaty-based Red Cross
Mechanism 3. Domestic Courts
3. ICJ (RTC under RA
4. Regional Bodies 9851)
Domestic Courts
Implementation Accepted customary and Customary law
international laws - established custom
- principle of humanity
International treaties and - dictates of public
conventions - conscience

Domestic or municipal Laws Treaty law

- Hague type
Constitution of the Republic conventions: conduct
of the Philippines of combat
- Geneva type
conventions:
protection of certain
persons and objects
- mixed type
conventions

Similarities of IHL vs. IHRL

- Protection for the people
- States having the primary obligation for enforcement
- Use of local judicial remedies
- Punishment for torture, summary execution, genocide, crime against humanity

TRIPLE NEXUS: IHL, PEACE, AND POLITICS

 HUMAN RIGHTS AND THE UN
- It is about human beings -

What makes man/woman truly human? What makes us completely human?

o Human Rights presupposes the existence of a human being.

o Hunger, illness, distance, poverty, extremism, lack of information, arbitrary arrests are
the threats to humanity
o So human rights are our insulation or a shield from all the threats that there is to our
human existence.
o So human life and human rights are inseparable
 One and the same
 The very essence of human rights is human life
 Human rights are there to protect our integrity as a human being to make us fully
function individuals

When do human beings begins to exist?

  
[Imbong vs. Ochoa (GR NO 204819, April 8, 2014
 
 
 Majority of the Members of the Court believe that the question of when life begins is a
scientific and medical issue that should not be decided, at this stage, without proper
hearing and evidence. However, they agreed that individual Members could express their
own views on this matter.
 
 Article II, Section 12 of the Constitution states: “The State recognizes the sanctity of
family life and shall protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life of the unborn from
conception.”
 
 In its plain and ordinary meaning (a canon in statutory construction), the traditional
meaning of “conception” according to reputable dictionaries cited by the ponente is that
life begins at fertilization. Medical sources also support the view that conception begins
at fertilization.
 
 The framers of the Constitution also intended for (a) “conception” to refer to the moment
of “fertilization” and (b) the protection of the unborn child upon fertilization. In addition,
they did not intend to ban all contraceptives for being unconstitutional; only those that
kill or destroy the fertilized ovum would be prohibited. Contraceptives that actually
prevent the union of the male sperm and female ovum, and those that similarly take
action before fertilization should be deemed non-abortive, and thus constitutionally
permissible.]

 Life begins at conception = fertilization of the egg by the sperm

Human Rights Human Rights Law

    
 “Aggregate of privileges (?),  “A Rule of Conduct created for the
claims, benefits, entitlements, and protection and promotion of human
moral guarantees that pertain to rights. HR Laws do not create creates, but
man [or woman] because of his merely set out a state-recognition of these
[her] humanity” – Rene rights in order to effectively promote and
Sarmiento protect them”
 Human rights laws are just
  reaffirmation, reiteration that we
 “System of values or elements have rights and the state are
which are inherent to human recognizing it not granting it
dignity” – Jose Zalaquett  HR are inherents
   
 “The human person possesses  “A branch of public law that deals with
rights because of the very fact that the body of laws, rules, procedures, and
it is a person” – Jean Jacques institutions designed to respect, promote,
Maritain and protect human rights at the national,
  regional and international levels"
 “By virtue of being human being,
a person has rights and duties,
flowing directly and
 HR are created to protect us and
simultaneously from his [her] very no interference but respected
nature” – Pope John XXIII
 
 ”Legal and moral entitlements
that have evolved as a basis for
constructing how state power is
used and particularly to limit its
use aginst the rights of the
citizens” – Wahiu
 
 “No cause is more worthy than
the cause of human rights and
they are what makes man
[woman] human” – Jose Diokno
 
 
THEREFORE HUMAN RIGHTS  
…Universal legal guarantees
(malukpanon); (wide array of rights)
[they cover]...civil, political, economic,
social and cultural;
…protect human values (freedom, equality,
dignity)
…[these are] inherent to individuals and, to
some extent, groups;
- Some groups-Right to ancestral
domain, PWDs, LGBTQ hopefully
…reflected in international norms and
standards (lagda og sukdanang
 pangkalibutanhon);
…legally binding on States (legal nga
naghikot sa mga estado.
- So it can be enforced and imposed
for states to comply
HUMAN RIGHTS IS

Our best tool to be free from

ABUSE
Our best ticket to be
FREE
Our only way to live a life of
DIGNITY
 
 

EVERY SECTOR FACES A UNIQUE SET OF HR ISSUES

 
 The women and Children
Marginalization
o Treated as insignificant
o women are last to be hired and first to be fired
o In the corporate world, women are considered as a liability

Subordination
o Women’s voices and decision making are given lesser importance
Multiple Burden
o We did not open men to private sphere – trabaho sa balay is not shared that put burdens
to women
Stereotypes
o Women considered to be emotional
Violence
o RA 9262
 
 Indigenous Peoples
Internal Displacement
o Territories is their identity – long history of struggle, ancestry, lineage
Ancestral Domain
Exploitation
o Always caught in the crossfire but are the victims and not their doings
 
 LGBTI
Discrimination
Stigmatization
Persecution
Violence
Stereotypes
 
 Urban Poor
 In Martial Law:
70,000 were imprisoned
34,000 tortured
3,240 killed
 
Today: 38 persons killed per day, 3,200 for the last 3 months KILL LIST 
 
KINDS OF RIGHTS
 
1ST GENERATION RIGHTS 2ND GENERATION 3RD GENERATION RIGHTS
RIGHTS
Civil and Political Rights Economic, Social and Collective Rights
(Simon vs. Commission on Cultural Rights (Oposa vs. Factoran (224 SCRA
Human Rights (GR No (Soriao vs Pineda, 792, 1993))
100150, January 5, 1994)) CA-GR SP No 31546,
August 10, 1994)
Liberty Rights Equality Rights Fraternity Rights
- Pertains to freedom
-
Right to life, liberty, security, Right to work, form Right to peace, development,
against torture, equal union, education, environment, self-determination,
protection, against health, rest and food, water, humanitarian
discrimination, against recreation, social disaster relief, internet access, of
arbitrary arrest, fair trial, security, shelter women, of children, and of
privacy, opinion and indigenous peoples
expression
Negative Rights as they expect Positive Rights as they Solidarity Rights as they require
respect from the state demand protection fulfillment by the state
- Shouldn’t be interfered from the state - Set the overall
and violated - State must environment for all
provide rights to thrive
- Benefits all , general
population -
intergenerational
They are all priorities and important
Rights shouldn’t be seen as hierarchy but they are interrelated
 

Simon vs. Commission on Human Rights (GR No 100150, January 5, 1994))

- The law provides under Article XIII, Section 18 of the 1987 Constitution that CHR is empowered
to “investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights. 
- The term "civil rights,” has been defined as referring — to those (rights) that belong to every
citizen of the state or country, or, in wider sense, to all its inhabitants, and are not connected with
the organization or administration of the government. They include the rights of property,
marriage, equal protection of the laws, freedom of contract, etc. Or, as otherwise defined civil
rights are rights appertaining to a person by virtue of his citizenship in a state or community.
 Such term may also refer, in its general sense, to rights capable of being enforced or redressed in
a civil action.
- Rights involving the vendors pertaining to their livelihood, they do not belong to civil rights.

 
Soriao vs. Pineda (CA-GR SP No 31546, August 10, 1994)
 
 Article XIV, Section 1: The State shall protect and promote the right of all citizens to
quality education at all levels and shall take appropriate steps to make such education accessible
to all.
 
 Article II, Section 13: The State recognizes the vital role of the youth in nation-building and
shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It
shall inculcate in the youth patriotism and nationalism and encourage their involvement in
public and civic affairs.
 
 Article II, Section 17: "The State shall give priority to education, science and technology, arts,
culture and sports to foster patriotism and nationalism, accelerate social progress, and promote
total human liberation and development."

 The basis – right to education

 Wala gisugtan si soriao makaenroll mao to

Oposa v. Factoran, 224 SCRA 792, 1993

- The Court stated that even though the right to a balanced and healthful ecology is under the
Declaration of Principles and State Policies of the Constitution and not under the Bill of Rights, it
does not follow that it is less important than any of the rights enumerated in the latter: “[it]
concerns nothing less than self-preservation and self-perpetuation, the advancement of which
may even be said to predate all governments and constitutions”.  The right is linked to the
constitutional right to health, is “fundamental”, “constitutionalised”, “self-executing” and
“judicially enforceable”. It imposes the correlative duty to refrain from impairing the
environment. 
- The court stated that the petitioners were able to file a class suit both for others of their generation
and for succeeding generations as “the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the protection of that
right for the generations to come.”
- Misappropriation of PH rainforest
- Intergenerational responsibility

 
HISTORY OF HUMAN RIGHTS
 

 
TREATY DATE OF ENTRY NO. OF TREATY BODY
ADOPTION INTO STATE
FORCE PARTIES
UDHR Dec 10, 1948 - - Human Rights Council
CERD Dec 21, 1965 Jan 4, 85 Committee on the
1969 Elimination of Racial
Discrimination
ICCPR Dec 16, 1966 Mar 23, 72 Human Rights Committee
1976
ICESCR Dec 16, 1966 Jan 3, 154 Committee on Economic,
1976 Social and Cultural Rights
CEDAW Dec 19, 1979 Sep 3, 84 Committee on the
1981 Elimination of Discrimination
Against Women
CAT Dec 10, 1984 June 26, 147 Committee Against Torture
1987
CRC Nov 20, 1989 Sep 2, 194 Committee on the Rights of
1990 Children
CRMW Dec 18, 1990 Mar 14, 78 Committee on the Rights of
2003 Migrant Workers and Their
Families
CRPD Dec 13, 2006 May 3, 94 Committee on the Rights of
 2008 Persons with Disabilities
CAED Dec 20, 2006 Nov 10, 87 Committee on Enforced
2010 Disappearances
 
The core UN Human Rights Conventions
( 3 core - the international bill of human rights)
1. UDHR
 Because the league of nations failed on that approach – disarm the
nations, but conflict is inevitable and only set limits in arm
conflicts. With the damage of the world war, the UN came together
and set out to respect and protect and promote human rights to
achieve global peace
 Comprehensive, covering everything: civil, political, economic,
social, cultural rights
 Sets the minimum requirements for the protection and promotion
of. Our human rights. We should not go less than but expand what
are enumerated in the UDHR
 Declaration is non-binding, no force and effect to the law but
UDHR has given a value of the law because the UDHR has never
been assailed. It is the most translated by several languages. It
became a international customary law- so its strength is equivalent
to a convention – into a force of law
2. ICCPR
 First faction of rights separated from UDHR
 Rights that require an obligation on the part of the state, not to
refrain from doing anything that could fail the right- freedom of
assembly, discrimination, right to vote- not to do anything to
interfere from these rights- often the negative/ liberty rights –
 Focuses on civil and political rights
 These are Negative rights
3. ICESCR
 Focuses on Economic, social, and cultural rights
 These are positive rights
 They demand to the state of these provisions of rights
 Right to marriage, adequate standard of living- let the state provide
 When they are deliberating, the democratic bloc led by USA was
pushing from civil and political rights as more primordial than
ESC rights. On the other hand, the socialist bloc led by the USSR,
China and other socialist states were defending the ESCR. As they
cant come to terms, so the UN decided to have both, two versions
of conventions that will expand the application of UDHR- ICCPR
& ICESCR. The politics between the democratic and socialist bloc
Specific human rights convention

Sector specific – crc, cedaw, crmw, cerd, crpd

1. CRC
 Focuses on the rights of children
 The most Widely ratified among the convention and only the USA
that did not ratified the CRC since for them, their local legislation
to promote children rights are far more advance than the UN
instruments(somehow they don’t want to be tied or obligated with
the convention, USA actually did not ratified most of the
conventions)
 All the rights (ESCR, CPR) that we have are equally applied to the
children
 Four main pillars (rights to-)
 Survival
 Protection
 Development
 Participation

2. CEDAW
 Focuses on the elimination of all forms of discrimination against
women
 Focuses on Protection and promotion of women’s rights
 We can see the concept of affirmative action/positive
discrimination or temporary special measure
 To Provide measure that will accelerate the status of
women to be equal with men than leave the status qou on
its own
 Gender quota
3. CRMW
 Families that they brought with them as they work abroad
 Those who ratified was the sending state and those who receive the
workers to work in their state are the ones who did not ratified so
that they wouldn’t be obligated with the convention

4. CERD
 On the basis of Ethnic origin, nationality, color
 All-encompassing,
 Four bundles of rights of IP (rights to-
 Ancestral domain
 Self-governance and empowerment
 Social justice and human rights
 Cultural integrity

5. CRPD
 The people should not be called disabled
 Persons with different abilities – politically correct
 Autism,
 Principle of reasonable accommodation
 Accommodate employees that are PWDs
  Arrange schedule and assignments
 Different disabilities in PH – orthopedic, mental disabilities- autism,
mentally retarded – local legislations set specific protections and
privileges – discounts on food and medicine, expressway. It is their right
and not charitable framework
Action specific – cat, caed
6. CAT
 torture
7. CAED
 Desaparacidos -Arrest, detention, abduction, deprivation of liberty
 It is done by the agents of the states or group of persons under the
authority with the knowledge or consent of the government
 You don’t have the idea at all
 In PH - Ra 10353

 CAED Not ratified yet but only adopted in the ph. It requires 2/3
votes
 Latest we ratified is the Rome statute
 HUMAN RIGHTS AND THE UNITED NATIONS
Basic principles – non-negotiable principles

1. INALIENABLE 
 You cannot give up, transfer, wave these rights
 Rights are inherent, inborn, innate can’t be taken away
2. interdependent
- interconnected with other rights
One right is violated could affect other rights
By a violation of one, then you violate all other rights
3. Universal
o Whenever, wherever
o Same human rights standards we use and observe in the world
o To be respected and recognized by states
4. Non discriminatory
 True to all regardless of one’s religion, nationality, creed, age, sex, sexual orientation,
identity
 All are equal – no one should enjoy supremacy over others

Other principles:
- in terms of running organizations, the way you proceed-
- Empowerment
 When you empower- you
are developing a culture
 of human rights, training them to be independent and stand on their own
feet (teach and reform)

THREEFOLD OBLIGATIONS OF THE DUTY BEARERS

 
1. RESPECT
 
2. PROTECT
 
3. FULFILL
 

 
SOURCES OF HUMAN RIGHTS
 
1. 1987 Constitution

o 1st Gen Rights: Article III

 
 o 2nd Gen Rights: Article XII, XIII, XIV

o 3rd Gen Rights: Article II

 
2. International Bill of Human Rights 

o UDHR 

o ICCPR 

o ICESCR
 
o Philosophy
 
4. Religion
 

GLOSSARY OF TERMS
 
CONVENTION vs. DECLARATION
 
 Convention: Binding agreement between states; used synonymously with Treaty and
Covenant. Conventions are stronger than Declarations because they are legally binding
for governments that have signed them. Example: ICCPR, ICESCR, CEDAW
 
 Declaration: Document stating agreed upon standards but which is not legally binding.
The term "declaration" is used for various international instruments. However,
declarations are not always legally binding. The term is often deliberately chosen to
indicate that the parties do not intend to create binding obligations but merely want to
declare certain aspirations. EXAMPLE: 1992 Rio Declaration, UNDRIP. 
 
Accession
 
 "Accession" is the act whereby a state accepts the offer or the opportunity to become a
party to a treaty already negotiated and signed by other states. It has the same legal effect
as ratification. Accession usually occurs after the treaty has entered into force. The
Secretary-General of the United Nations, in his function as depositary, has also accepted
accessions to some conventions before their entry into force. The conditions under which
accession may occur and the procedure involved depend on the provisions of the treaty.
A treaty might provide for the accession of all other states or for a limited and defined
number of states. In the absence of such a provision, accession can only occur where the
negotiating states were agreed or subsequently agree on it in the case of the state in
question.
 
 [Arts.2 (1) (b) and 15, Vienna Convention on the Law of Treaties 1969]
 
Adoption
 
 "Adoption" is the formal act by which the form and content of a proposed treaty text are
established. As a general rule, the adoption of the text of a treaty takes place through the
expression of the consent of the states participating in the treaty-making process. Treaties
that are negotiated within an international organization will usually be adopted by a
resolution of a representative organ of the organization whose membership more or less
corresponds to the potential participation in the treaty in question. A treaty can also be
adopted by an international conference which has specifically been convened for setting
up the treaty, by a vote of two thirds of the states present and voting, unless, by the same
majority, they have decided to apply a different rule.
 
 [Art.9, Vienna Convention of the Law of Treaties 1969]
 
 
CUSTOMARY INTERNATIONAL LAW
 
 
 Customary International Law: Law that becomes binding on states although it is not
written, but rather adhered to out of custom; when enough states have begun to behave as
though something is law, it becomes law "by use"; this is one of the main sources of
international law. Example: UDHR
 
Entry into Force
 
 Typically, the provisions of the treaty determine the date on which the treaty enters into
force. Where the treaty does not specify a date, there is a presumption that the treaty is
intended to come into force as soon as all the negotiating states have consented to be
bound by the treaty. 
 
OPTIONAL PROTOCOL
 
 Protocol: A treaty which modifies another treaty (e.g., adding additional procedures or
substantive provisions). Example: 2nd Optional Protocol to ICCPR on Abolition of Death
Penalty
 
Ratification
 
 Ratification defines the international act whereby a state indicates its consent to be
bound to a treaty if the parties intended to show their consent by such an act. In the case
of bilateral treaties, ratification is usually accomplished by exchanging the requisite
instruments, while in the case of multilateral treaties the usual procedure is for the
depositary to collect the ratifications of all states, keeping all parties informed of the
situation. The institution of ratification grants states the necessary time-frame to seek the
required approval for the treaty on the domestic level and to enact the necessary
legislation to give domestic effect to that treaty.
 
 [Arts.2 (1) (b), 14 (1) and 16, Vienna Convention on the Law of Treaties 1969]
 
Reservation
 
  A reservation is a declaration made by a state by which it purports to exclude or alter the
legal effect of certain provisions of the treaty in their application to that state. A
reservation enables a state to accept a multilateral treaty as a whole by giving it the
possibility not to apply certain provisions with which it does not want to comply.
Reservations can be made when the treaty is signed, ratified, accepted, approved or
acceded to. Reservations must not be incompatible with the object and the purpose of the
treaty. Furthermore, a treaty might prohibit reservations or only allow for certain
reservations to be made.
 
 [Arts.2 (1) (d) and 19-23, Vienna Convention of the Law of Treaties 1969]
 
 
STATE PARTY
 
 A State party to a treaty is a State that has expressed its consent to be bound by that
treaty by an act of ratification, acceptance, approval or accession, etc., where that treaty
has entered into force for that particular State. This means that the State is bound by the
treaty under international law.
See article 2(1)(g) of the Vienna Convention 1969.
 
GENERAL COMMENT / RECOMMENDATIONS
 
 A treaty body's interpretation of the content of human rights provisions, on thematic
issues or its methods of work. General comments often seek to clarify the reporting duties
of State parties with respect to certain provisions and suggest approaches to
implementing treaty provisions. Also called "general recommendation.” EXAMPLE: GC
NO. 15 TO ICESCR, GR NO. 19 TO CEDAW  
 
TREATY BODY
 
 A committee of independent experts appointed to monitor the implementation by States
parties of the core international human rights treaties. They are called 'treaty bodies'
because each is created in accordance with the provisions of the treaty which it oversees.
In many important respects, they are independent of the United Nations system, although
they receive support from the United Nations Secretariat and report of the General
Assembly. Also referred to a the "committee" or "treaty-monitoring body".
 
8.
 HR REDRESS MECHANISMS
Modes of enforcing international standards
1. TRANSFORMATION
○ Instruments to which Philippines is a signatory/party should be ratified by Senate
via 2/3 vote to become part of the law of the land and/or translated into municipal
laws
○ Example: Rome Statute, Passage of RA 10353
2. INCORPORATION
○ Instruments to which the Philippines is NOT a signatory/party, shall still form
part of the domestic legal system, provided it is classified as generally accepted
principles of international law of a customary law
○ Example: good faith, res judicata; non refoulement, immunity of heads of state

Domestic Enforcement of Human Rights

1. Role of courts
a. Exercise of Judicial Power
i. “duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
Government.”
ii. Judicial power
1. The measure of allowable scope of judicial action
a. Authority to settle justiciable controversies or disputes
involving rights that are legally demandable and
enforceable before the courts of justice or redress of
wrongs for violations of such rights
b. Involves the power to control the execution of its decision
(Echegaray vs. The Secretary of Justice)
c. Power to determine w/n there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government
iii.
b.
 DEVELOPMENT OF IHL
THE GENEVA CONVENTIONS
THE ROME STATUTE
REPUBLIC ACT 9851
THEORIES OF PEACE
CONFLICT RESOLUTION