PHARMACEUTICAL and HEALTH CARE ASSOCIATION of the PHILIPPINES vs.

DOH

G.R. No. 173034, October 9, 2007

FACTS:

President Corazon Aquino sought to implement Article 112 of the

International Code of

Marketing of Breast Milk substitutes of the World Health Assembly by creating

Executive

Order No. 51 also known as the Milk code. The said code promotes and protects
breastfeeding over

breast milk substitutes. Now, DOH issued RIRR prohibiting promotion of breast milk
substitutes

which is not the total mandate of the Milk code being not one of a total ban on the
same.

ISSUE:

Whether or not the Milk Code is a hard law.

HOLDING:

The court answered in the affirmative. For international laws to take effect,
they must

undertake the process of incorporation or transformation allowing them to become

part of the law

of the land. In the case at bar, the Article 112 of Marketing of Breast Milk substitutes
was never

concurred by the senate under Sec. 21 Art. VII of the 1987 constitution thus making
it only as a soft

law and cannot be enforced in the Philippines. Subsequently, the Milk Code, being
one of an

executive enactment taking the force of a law, is a hard law.

THE PAQUETE HABANA AND LOLA

U.S. Supreme Court (1900)

FACTS:

The US Navy boarded two private fishing vessels flying the Spanish flag, and
captured them

as prizes during the Spanish American War. One of the vessels was named The
Paquete Habana and

the other, The Lola. The owners of the vessels filed to reclaim in US courts to regain
their property.

They argued that customary international law said that fishing vessels were exempt
from being

captured in war.

ISSUE:

Whether or not in times of war, International customary law exempts fisher

man from

becoming a prize of war.

HOLDING:

The court ruled in the affirmative. The fishing vessels are not prizes of war.
Since there was

no specific US law defining a prize of war, and subsequently found that customary
international law

exempted fishing vessels from being taken as prizes of war, it can be held that
indeed a decision
favoring the claim over the vessels will be uphold. There are a number of factors
that determine if

something is customary international law. In this case, the Court found that: (a)
There was State

practice by a number of different countries that commercial fishing vessels were

exempt; (b) There

was repetition of the practice over time; (c) There was opinio juris that commercial
fishing vessels

were exempt. Opinio juris is a subjective element that judges whether a certain
practice is one of a

traditionally legal and done with good faith by them. This determines whether one
practice becomes

customary international law or not. However, in this case, indeed, such was
established that fishing

vessels cannot be declared as prize of war.

ASYLUM CASE

International Court of Justice (1950)

FACTS:

Peru issued an arrest warrant against Victor Raul Haya de la Torre with
respect to the crime

of military rebellion which took place on October 3, 1949 after losing his faction in
civil war. Peru

subsequently refused to allow him to leave the country for him to be tried. ICJ
decided that

Columbia had no treaty right to declare that Torre was entitled to the status of a
political offender

eligible for political asylum. The ICJ then turned to customary international law.
Under Article 14 of

the Universal Declaration of Human Rights states that "Everyone has the right to
seek and to enjoy
in other countries asylum from persecution."

ISSUE:

Whether or not an international customary law may be followed even if it had

not been practiced.

HOLDING:

The court ruled otherwise. The mere fact that there is no evidence as to
custom allowing

Columbia to grant political asylum and binding Peru, it cannot be applied favourably
to Torre. The

rule is that, to invoke a customary international law, it must be proven that it has
been used fairly

often, and adopted by many states. Also, a state is bound to observe the treaty if it
ratified it which

in the case, did not. Thus, Torre will not earn a favourable asylum for such is not
practiced by Peru.