LLM Course: International Law Developments

Professor: Ambassador Lilia R. Bautista

Reporter: Atty. Myraflor Guarde Saculles (Group 5)

A.

International
Custom,
as evidence of general practice
accepted by law.
Customary International Law, defined.
A practice which has grown up between states and has
come to be accepted as binding by the mere fact of
persistent usage over a long time. [Fenwick]
A general and consistent practice of States followed by
them from a sense of legal obligation (opinio juris).
Opinio Juris is the belief that a certain form of behavior is
obligatory, without it, the practice is not a law. [Bernas]
Article 38(1) of the ICJ Statute laid down the following criteria
that would transform usage to custom, to wit:
1. The state general practice; and
2. the acceptance (of a number of states) of the practice as law.
Nachura & Gatdula in its 2022 ed book, likewise enumerated the two
main elements of custom which must concur. These are (1) State
practice and (2) Opinio juris. As sub-elements of State practice – (1a)
the practice in question must be demonstrated to have been general,
uniform, and over a long enough period of time to enable it to crystallize
(duration). (Please see: Nicaragua Case [1986] ICJ Rep 14— where the
ICJ discussed custom and its elements extensively; North Continental
Shelf Case 1969 ICJ Rep 3— where the sub-elements of the State
practice were discussed extensively).
General Practice, as the first element of Custom as a source of International
Law, means that the practice is accepted by a great majority of States and
this practice has become a legal obligation of States. It is the continuous,
consistent and general norm of action between States. If a State practice is
motivated solely by habit or convenience, or any reason other than a legal
obligation, the act cannot ripen into customary international law.
In the century old case of Paquete Habana [175 U.S. 677, 1900], the U.S.
Supreme Court ruled on the nature of the general practice requirement, to wit:
“By an ancient usage among civilized nations, beginning centuries ago, and
gradually ripening into a rule of international law, coastal fishing vessels,
pursuing their vocation of catching and bringing in fresh fish, have been
recognized as exempt, with their cargoes and crews, from capture as prizes of
war.”
While second element of “acceptance of the practice of law” by the
states also called “opinio juris” or “opinion juris sive necessitates” (an
opinion of law or necessity). In the cases of North Sea Continental Shelf
(Federal Republic of Germany v. Denmark; Federal Republic of
Germany v. Netherlands; ICJ Reports 1969), the International Court of
Justice explained the nature of opinio juris, as acts that must not only
be settled practice “but they must also be such, or be carried out in
such a way, as to be evidence of a belief that the practice is rendered
obligatory by the existence of a rule of law requiring its observance.
 North Sea Continental Shelf (Federal Republic of Germany v. Denmark;
Federal Republic of Germany v. Netherlands; ICJ Reports 1969)
Facts of the Case:
Netherlands and Denmark had drawn partial boundary lines based on the
equidistance principle (lines A-B and C-D). An agreement on further
prolongation of the boundary proved difficult because Denmark and
Netherlands wanted this prolongation to take place based on the
equidistance principle (lines B-E and D-E) where as Germany was of the
view that, together, these two boundaries would produce an inequitable
result for it. Germany stated that due to its concave coastline, such a line
would result in her losing out on its share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court had to
decide the principles and rules of international law applicable to this
delimitation. In doing so, the Court had to decide if the principles adopted
by the parties were binding on the parties either through treaty law or
customary international law
ISSUE:
Whether or not Equidistance Principle contained in Article 6 of the 1958
Geneva Continental Shelf Convention is applicable to the Federal Republic
of Germany or could be considered as a customary international law rule.
RULING:
No. The Equidistance Principle cannot be considered as a international
customary international law. According to the standing jurisprudence of
the North Sea Continental Shelf cases, set out the dual requirement for the
formation of customary international law: (1) State practice and (2) opinion
juris sive necessitates. The court held that inorder to establish state
practice, it must be generally practice by the majority of the states,
substantial uniformity of a given practice and the practice must be long
enough. It is also held that a state is acting in accordance with opinio juris
sive necessitates which constitutes it is acting due to a legal obligation.
This principle is never presumed and must always be proven.
RULING:
In this case of delimitation of the continental shelf areas in the North Sea
between, Denmark, Netherlands and Germany, Netherlands and Denmark
relied on the principle of equidistance. While, Germany sought to get a
decision in favor of the notion that the delimitation of the relevant
continental shelf was governed by the principle that each coastal state is
entitled to a just and equitable share (hereinafter called just and equitable
principle/method). Contrary to Denmark and Netherlands, Germany
argued that the principle of equidistance was neither a mandatory rule in
delimitation of the continental shelf nor a rule of customary international
law that was binding on Germany. The Court was not asked to delimit
because the parties had already agreed to delimit the continental shelf as
between their countries, by agreement, after the determination of the Court
on the applicable principles. Furthermore, it was not proven and held that
the principle of equidistance passed the set-out dual requirement. Thus,
said principle could not be considered as customary international law.
RULING:

The Court held that only a very definite, very consistent course of conduct
on the part of a State would allow the court to presume that the State had
somehow become bound by the treaty when the state at all times fully
able and entitled to accept treaty commitments in a formal manner(e.g. by
means of ratification). Although Germany had become part of the
Convention and it had ratified the treaty, it has the option of entering into a
reservation on Article 6, following which that particular article would no
longer be applicable to them. Thus, it was not lightly to be presumed that a
State which had not carried out those formalities had nevertheless
somehow become bound in another way.
ADOPTION OF CUSTOMARY LAW
Doctrine of Incorporation vs. Doctrine of Transformation
Doctrine of Incorporation Doctrine of Transformation
Sec. 2, Article II, Philippine Constitution, Based upon the perception of two
expressly states that “The Philippines distinct system of law operating
renounces war as an instrument of national separately, and maintains that before
policy, adopts the generally accepted
principles of international law as part of the
any rule or principle of international law
law of the land, and adheres to the policy of can have any effect within the
peace, equality, justice, freedom, cooperation, domestic jurisdiction, it must be
and amity with all nations. (underscoring expressly and specifically “transformed”
supplied) See: Kuroda v. Jalandoni, 83 Phil 171, into municipal law by the use of the
held that although the Philippines is not a diplomatic constitutional machinery.
signatory to the Hague and Geneva
Conventions, international jurisprudence is Requires the enactment by the
automatically incorporated in the Philippine legislative body of such international
law].
law principles as are sought to be part
By virtue of the incorporation clause of the of the municipal law.
Constitution, generally accepted principles of
international law form part of the laws of the
land even if they do not derive from treaty
obligations. (Mijares v. Ranada, G.R. No. 139325,
April 12, 2005.
 KURODA VS. JALANDONI, 83 PHIL 171
FACTS:

Kuroda, a Lieutenant-General of the Japanese Imperial Army charged

before a Military Commission with having unlawfully disregarded and
failed “to discharge his duties as such commander to control the
operations of members of his command permitting them to commit
brutal atrocities and other high crimes against noncombatant civilians
and prisoners of the Imperial Japanese Forces, in violation of the laws
and customs of war”. Kuroda argues that EO No. 68 is illegal on the
ground that it violates the provision of our constitutional law, further,
the Philippines is not a signatory nor an adherent to the Hague
Convention on Rules and Regulations covering Land Warfare and,
therefore, petitioner is charged of `crimes’ not based on law.
ISSUE:
Whether or not the Philippines can adopt the rules and regulations laid
down on The Hague and Geneva Conventions notwithstanding that it is
not a signatory thereto.
RULING:

Court holds that this order is valid and constitutional. Article 2 of our
Constitution provides in its section 3, that “The Philippines renounces
war as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of the
nation.” In accordance with the generally accepted principles of
international law of the present day, including the Hague Convention
the Geneva Convention and significant precedents of international
jurisprudence established by the United Nations.

In the promulgation and enforcement of Executive Order No. 68, the

President of the Philippines has acted in conformity with the generally
accepted principles and policies of international law which are part of
our Constitution.
TWO DIFFERENT THEORIES:

1. THEORY OF DUALISM - it enunciated that to become part of

municipal law, international law must be transformed first into
legal system of a state either by legislation, court decision or by
executive fiat.

2. THEORY OF MONOISM - there is no need to transform

international law into municipal one. Legislation, court decision
or executive actions are no longer necessary since international
customary law automatically becomes part of national law.
 PHARMACEUTICAL AND HEALTHCARE ASSOCIATION OF THE
PHILIPPINES VS FRANCISCO DUQUE III, GR NO. 173034; 10-09-2007
FACTS:

PETITIONER:

Pharmaceutical and Healthcare Association of the Philippines sought to nullify the

the Milk Code (RIRR). Petitioner alleged that the RIRR is invalid because it contains
provisions that are not constitutional.

RESPONDENT:

The Respondents countered that the RIRR implements not only the Milk Code, but
also various international agreements and instruments regarding infant and
young child nutrition, specifically Article 11 of the International Code of Marketing of
Breastmilk Substitutes (ICMBS) adopted by the World Health Assembly (WHA). For
them, these international agreements are deemed part of the law of the land
under the Doctrine of Incorporation as provided by the Constitution, and therefore
must be implemented through the RIRR.
ISSUE:
Whether or not the international agreements as
mentioned by the Respondents are part of the law of the
land and may be implemented through the RIRR.
RULING:

No. The Supreme Court held that international law could become
part of the law of the land either by transformation or
incorporation. In the transformation method, an international law
can be transformed into a domestic law through a constitutional
mechanism such as legislation. An enabling law is required in
order for international law to become effective. In the
incorporation method, international law is deemed to have the
force of domestic law. Thus, under the Constitution, treaties or
international agreements shall become valid and effective upon
concurrence of two-thirds of all members of the Senate.
B. Another Source of International Law:
GENERAL PRINCIPLES OF LAW – these are rules derived
mainly from natural law, observed and recognized by
civilized nations, e.g. Estoppel, res judicata, prescription,
jurisdiction, pacta sunt servanda, due process, principle
of equity and ex aego et bono (fair and Equity)}

– propositions of law that are so fundamental that

they are found in almost all legal systems. These are
separate source of law from both treaty and custom.
Purpose:
General Principles of law were introduced as a source of law in order to combat the
problem of non-liquet (or the absence of any source of law or obligation to point to
in order to resolve the conflict. As such, even absent a particular treaty or custom,
the Court may not renege on its duty to decide a case since it is allowed to rule on
matter on the basis of general principles of law.

Scope:
Although it is unclear what the formal scope of general principles of law is, the
decisions of the ICJ seem to lean towards general principles of law encompassing
both private and public law concepts. {See: Advisory Opinion on the Effect of
Awards of Compensation Made by the United Nations Administrative Tribunal [1954]
ICJ Rep 47} where the ICJ acknowledged the principle of res judicata; Temple of
Preah Vihear Case [1962] ICJ Rep 6}, where the ICJ used the principle of estoppel in
finding Thailand to have recognized Cambodia’s sovereignty over disputed
territory; Corfu Channel Case[1949] ICJ Rep 4}, where circumstantial evidence, in
the absence of direct evidence was used to ascertain whether or not Albania was
liable for the sinking of British ships; and many others.
Note:
The principle of ex aequo et bono (what is good and just) may
be added to these general principles provided that the parties to
the dispute agree thereto, as provided under Article 38(1), Statute
of the International Court of Justice). This must not, however, be
confused with the principle of equity since equity is part of the
judicial function and can be applied at any time, whereas the
principle of ex aequo et bono which considers only socio-
economic and political considerations which may only be
applied when asked by the parties.
Thank You!