1

Madamba, Theorosa N.
Law 312 – Public International Law

Digests

(Topic 1)

Kuroda v. Jalandori
83 Phil. 1710
Doctrine: In accordance with the generally accepted principle of
international law of the present day, xxx, all those person military or
civilian who have been guilty of planning preparing or waging a war
of aggression and of the commission of crimes and offenses
consequential and incidental thereto in violation of the laws and
customs of war, of humanity and civilization are held accountable
therefore.

Facts: Petitioner Shigenori Kuroda, the Commanding

General of the Japanese Imperial Forces in the Philippines
during the Japanese occupation, was charged before the
Philippine Military Commission of war crimes. He questioned
the constitutionality of E.O. No. 68 that created the National
War Crimes Office and prescribed rules on the trial of accused
war criminals. He contended the Philippines is not a signatory
to the Hague Convention on Rules and Regulations covering
Land Warfare and therefore he is charged of crimes not based
on law, national and international. 

Issue: Was E.O. No. 68 valid and constitutional?

Ruling: YES, E.O. No. 68 valid and constitutional.

Article 2 of our Constitution provides in its section 3, that
–
 2

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 principle of
international law of the present day, including the Hague
Convention the Geneva Convention and significant precedents
of international jurisprudence established by the United Nation,
all those person military or civilian who have been guilty of
planning preparing or waging a war of aggression and of the
commission of crimes and offenses consequential and
incidental thereto in violation of the laws and customs of war, of
humanity and civilization are held accountable therefore.
Consequently in the promulgation and enforcement of EO No.
68, the President of the Philippines has acted in conformity with
the generally accepted and policies of international law which
are part of our Constitution.
Petitioner argues that respondent Military Commission
has no jurisdiction to try petitioner for acts committed in
violation of the Hague Convention and the Geneva Convention
because the Philippines is not a signatory to the first and signed
the second only in 1947. It cannot be denied that the rules and
regulations of the Hague and Geneva conventions form part of
and are wholly based on the generally accepted principles of
international law.  In facts these rules and principles were
accepted by the two belligerent nations the United State and
Japan who were signatories to the two Convention. Such rules
and principles therefore form part of the law of our nation even
if the Philippines was not a signatory to the conventions
embodying them for our Constitution has been deliberately
general and extensive in its scope and is not confined to the
recognition of rule and principle of international law as
 3

contained in treaties to which our government may have been

or shall be a signatory.

Lo Ching v. Archbishop of Manila

81 Phil. 601
Doctrine: Family honor and rights, the lives of persons, and private
property, as well as religious convictions, must be respected.

Facts: On August 30, 1940, the Archbishop of Manila through

the Bank of the Philippine Islands leased a farm to Lo and So
Yun Ching Chong Co. Located at dela Calle Hidalgo, Manila,
under a monthly income of PhP.500.00 by the end of three
years counting from the first of September 1940, extendable to
two years. The tenant took the property by setting it in a hotel.
In February, 1942, the Japanese echoed the tenants of the
property and delivered the latter to German Otto Schulze who
work until January 1945 at the advent of liberation army. In
early February 1945, tenant reoccupied the property and paid
the monthly rental fee. Before the end of August of the same
year, the landlord required the tenants to vacate the property,
however, they refused.
The appellants contend that they are entitled to occupy
the property for three full years, the occupation must be
effective, and continuous material, which should not be
deprived of the use and enjoyment of the property, and the
appellants are entitled to deduct that period of three years, all
the time that no longer have the lease available to the
Japanese army.

Issue: Whether or not Hague Convention of 1907 allows

occupation and seizure of private lands?
 4

Ruling: No. The Hague Convention of 1907 does not allow an

occupying army to seize the private property in the territory
invaded. In contrast, states that: “Family honor and rights, the
lives of persons, and private property, as well as religious
convictions, must be respected. Private property cannot be
confiscated.” The farm is not even used as army barracks, and
there is no evidence that it was seized by military necessity,
what can be deduced that the Japanese soldiers disposed of
the property, not in the legitimate exercise the authority of an
occupying army, but spurred on by uncontrollable desire to take
over other people.
 5

Borovsky v. Commissioner of Immigration

G.R. No. L-4362
Doctrine: It must be admitted that temporary detention is a
necessary step in the process of exclusion or expulsion of
undesirable aliens and that pending arrangement for his deportation,
the Government has the right to hold the undesirable alien under
confinement for a reasonable length of time. However, under
established precedents, too long detention may justify the issuance
of a writ of habeas corpus.

Facts: Petitioner claims to be a stateless citizen, born in

Shanghai, China, of Russian parentage who came to the
Philippines in 1936 and had resided therein ever since. He
was arrested through the order of the respondent for
investigation as to his past activities. “Following his
arrest, a warrant for deportation was issued by the
Deportation Board, which is said to have been found him
an undesirable alien, a vagrant and habitual drunkard which the
petitioner protested because according to him, he was not
given a hearing, nor informed of the charges against him.
He was brought to Shanghai but was not allowed to enter
because he was not a Chinese national and was not
provided with entry visa, so he was brought back in Manila and
confined in New Bilibid Prison. He was granted a provisional
release for a period of 6 months but before the expiration of that
period, respondent caused his rearrests and was confined in
the said prison ever since.

Issue: Whether or not Petitioner’s prolonged detention is valid.

Ruling: No. There is no question as to the validity of the

deportation decree. It must be admitted that temporary
 6

detention is a necessary step in the process of exclusion or

expulsion of undesirable aliens and that pending arrangement
for his deportation, the Government has the right to hold the
undesirable alien under confinement for a reasonable length of
time. However, under established precedents, too long
detention may justify the issuance of a writ of habeas corpus.

The meaning of “reasonable time” depends upon the

circumstances, specially the difficulties of obtaining a passport,
the availability of transportation, the diplomatic arrangement of
the government concerned and the efforts displayed to send
the deportee away. Considering that this Government desires
to expel the alien, and does not relish keeping him at the
people’s expense, the court presume it is making efforts in
making efforts to carry out the decree of exclusion by the
highest officer of the land. On top of this presumption
assurance were made during the oral argument that the
Government is really trying to expedite the expulsion of
Borovsky. On the other hand, the record fails to show how long
he has been under confinement since the last time he was
apprehended. Neither Does he indicate neglected opportunities
to send him abroad. And unless it is shown that the deportee is
being indefinitely imprisoned under the pretense under the
pretense of waiting a chance for deportation or unless the
Government admits that it cannot deport him or unless the
detainee is being held for too long a period our courts will not
interfere.

In the United States there were at least two instances in

which courts fixe a time limits within which the imprisoned
aliens should be deport otherwise their release would be
ordered by writ of habeas corpus. Nevertheless, supposing
 7

such precedents apply in this jurisdiction, still we have no

sufficient date fairly to fix a definite deadline.
 8

Laguna Lake Development Authority v. Court of Appeals

231 SCRA 292
Doctrine: While it is a fundamental rule that an administrative
agency has only such powers as are expressly granted to it by law, it
is likewise a settled rule that an administrative   agency has also such
powers as are necessarily implied in the exercise of its ex press
powers.

Facts: The LLDA Legal and Technical personnel found that the
City Government of Caloocan was maintaining an open
dumpsite at the Camarin area without first securing
an Environmental Compliance Certificate (ECC) from the
Environmental Management Bureau
(EMB) of the Department of Environment and  Natural
Resources,  as  required  under Presidential  Decree  No.
1586, and clearance from LLDA as required under Republic Act
No.  4850 and issued a CEASE and DESIST ORDER (CDO)
for the City Government of Caloocan to stop the use of the
dumpsite. 

Issues:
1.Does the LLDA and  its  amendatory  laws,  have  the
authority  to  entertain  the complaint  against  the
dumping  of garbage  in  the  open  dumpsite  in
Barangay  Camarin  authorized  by  the  City
Government  of  Caloocan?  
2. Does the LLDA have the power and authority to issue a
"cease and desist" order? 
 9

Rulings:
1. YES, LLDA has authority. It must be  recognized  in
this  regard  that  the LLDA,  as  a  specialized
administrative  agency,  is  specifically  mandated  under
Republic  Act  No.  4850  and  its amendatory law s  to
carry out and  make effective the declared  national policy
of  promoting and  accelerating the development  and
balanced  growth  of  the  Laguna  Lake  area  and  the
surrounding  provinces  of  Rizal  and  Laguna and the
cities of San Pablo,  Manila, Pasay, Quezon  and
Caloocan with  due regard  and  adequate provisions  for
environmental  management and  control, preservation  of
the quality  of human  life  and ecological  systems, and
the prevention of undue ecological disturbances,
deterioration and pollution. Under such a broad grant and
power and authority, the LLDA, by virtue of its special
charter, obviously has the responsibility to protect the
inhabitants of the Laguna Lake region from the
deleterious effects of pollutants emanating from
the discharge of wastes from the surrounding areas.  

2. YES, pursuant to EO 927 Section 4. While it is a

fundamental rule that an administrative agency has only
such powers as are expressly granted to it by law, it is
likewise a settled rule that an administrative agency has
also such powers as are necessarily implied in the
exercise of its ex press powers. In the exercise, therefore,
of its express powers under its charter as a regulatory
and quasi-judicial body with respect to pollution cases in
the Laguna Lake region, the authority of the LLDA
to issue a “cease and desist order" is, perforce, implied.
 10

NOTE: HOWEVER, writs of mandamus and injunction are

beyond the power of the LLDA to issue.    
 11

Secretary of Justice V. Judge Lantion

G.R No. 139465, January 18, 2000
Doctrine: The rule of pacta sunt servanda, one of the oldest and
most fundamental maxims of international law, requires the parties to
a treaty to keep their agreement therein in good faith.

Facts: On June 18, 1999, the Department of Justice received

from the Department of Foreign Affairs of the United States
requesting for the extradition of Mark Jimenez for various
crimes in violation of US laws. In compliance with the related
municipal law, specifically Presidential Decree No. 1069
“Prescribing the Procedure for Extradition of Persons Who
Have committed Crimes in a Foreign Country” and the
established “Extradition Treaty Between the Government of the
Philippines and the Government of the United States of
America”, the department proceeded with proceeded with the
designation of a panel of attorneys to conduct a technical
evaluation and assessment as provided for in the presidential
decree and the treaty.
The respondent requested for a copy of the official extradition
request as well as the documents and papers submitted
therein. The petitioner denied the request as it alleges that such
information is confidential in nature and that it is premature to
provide such document as the process is not a preliminary
investigation but a mere evaluation. Therefore, the
constitutional rights of the accused are not yet available.

Issues:
1.Whether or not private respondent, Mark B. Jimenez, be
granted access to the official extradition request and
documents with an opportunity to file a comment on or
 12

opposition thereto
2.Whether or not private respondent’s entitlement to notice and
hearing during the evaluation stage of the proceedings
constitute a breach of the legal duties of the Philippine
Government under the RP-US Extradition Treaty

Ruling: The Supreme Court ruled that the private respondent be

furnished a copy of the extradition request and its supporting
papers and to give him a reasonable period of time within which
to file his comment with supporting evidence. In this case, there
exists a clear conflict between the obligation of the Philippine
Government to comply with the provisions of the treaty and its
equally significant role of protection of its citizens of its right of
due process.
The processes outlined in the treaty and in the presidential
decree already pose an impending threat to a prospective
extraditee’s liberty as early as the evaluation stage. It is not an
imagined threat to his liberty, but a very imminent one. On the
other hand, granting due process to the extradition case causes
delay in the process.
The rule of pacta sunt servanda, one of the oldest and most
fundamental maxims of international law, requires the parties to
a treaty to keep their agreement therein in good faith. The
doctrine of incorporation is applied whenever municipal
tribunals are confronted with situations in which there appears
to be a conflict between a rule of international law and the
provisions of the constitution or statute of a local state. Efforts
should be done to harmonize them. In a situation, however,
where the conflict is irreconcilable and a choice has to be made
between a rule of international law and municipal law,
jurisprudence dictates that municipal law should be upheld by
 13

the municipal courts. The doctrine of incorporation decrees that

rules of international law are given equal standing, but are not
superior to, national legislative enactments.
In this case, there is no conflict between international law and
municipal law. The United States and the Philippines share a
mutual concern about the suppression and punishment of crime
in their respective jurisdictions. At the same time, both States
accord common due process protection to their respective
citizens. In fact, neither the Treaty nor the Extradition Law
precludes the rights of due process from a prospective
extradite.
 14

Ichong v. Hernandez
101 Phil.115
Doctrine: A generally accepted principle of international law, should
be observed by us in good faith. If a treaty would be in conflict with a
statute, then the statute must be upheld because it represented an
exercise of the police power which, being inherent could not be
bargained away or surrendered through the medium of a treaty.

Facts: Driven by aspirations for economic independence and

national security, the Congress enacted Act No. 1180 entitled
“An Act to Regulate the Retail Business.” The main provisions of
the Act, among others, are:(1) Prohibition against persons, not
citizens of the Philippines, and against associations, among
others, from engaging directly or indirectly in the retail trade;
and (2) Prohibition against the establishment or opening by
aliens actually engaged in the retail business of additional
stores or branches of retail business. Lao H. Ichong, in his own
behalf and on behalf of other alien residents, corporations and
partnerships adversely affected by the said Act, brought an
action to obtain a judicial declaration, and to enjoin the
Secretary of Finance, Jaime Hernandez, and all other persons
acting under him, particularly city and municipal treasurers,
from enforcing its provisions.

Petitioner attacked the constitutionality of the Act,

contending that: It denies to alien residents the equal protection
of the laws and deprives of their liberty and property without due
process of law.

The subject of the Act is not expressed or

comprehended in the title thereof.

The Act violates international and treaty obligations

of the Republic of thePhilippines.
 15

Issue: Whether or not a law may invalidate or supersede

treaties or generally accepted principles.

Ruling: Yes, a law may supersede a treaty or a generally

accepted principle. In this case, the Supreme Court saw no
conflict between the raised generally accepted principle and
with RA 1180. The equal protection of the law clause “does not
demand absolute equality amongst residents; it merely requires
that all persons shall be treated alike, under like circumstances
and conditions both as to privileges conferred and liabilities
enforced”; and, that the equal protection clause “is not infringed
by legislation which applies only to those persons falling within
a specified class, if it applies alike to all persons within such
class, and reasonable grounds exist for making a distinction
between those who fall within such class and those who do
not.”
 16

Nicaragua Case (1986)

ICJ Rep 14
Doctrine: When no grounds exist to exclude the application of a
state, the application of such a state to the International Court of
Justice is admissible.

Facts: Nicaragua (P) brought a suit against the United States

(D) on the ground that the United States (D) was responsible
for illegal military and paramilitary activities in and against
Nicaragua. The jurisdiction of the International Court of Justice
to entertain the case as well as the admissibility of Nicaragua’s
(P) application to the I.C.J. was challenged by the United States
(D).

Issues:

1. Is the jurisdiction to entertain a dispute between two states, if

they both accept the Court’s jurisdiction, within the
jurisdiction of the International Court of Justice?
2. Where no grounds exist to exclude the application of a state,
is the application of such a state to the International Court of
Justice admissible?

Ruling:

1. Yes. The jurisdiction of the Court to entertain a dispute

between two states if each of the States accepted the
Court’s jurisdiction is within the jurisdiction of the
International Court of Justice. Even though Nicaragua (P)
declaration of 1929 was not deposited with the Permanent
Court, because of the potential effect it had that it would last
for many years, it was valid.
Thus, it maintained its effect when Nicaragua became a
party to the Statute of the I.C.J because the declaration was
made unconditionally and was valid for an unlimited period.
The intention of the current drafters of the current Statute
was to maintain the greatest possible continuity between it
and the Permanent Court. Thus, when Nicaragua (P)
accepted the Statute, this would have been deemed that the
 17

plaintiff had given its consent to the transfer of its declaration

to the I.C.J.

2. Yes. When no grounds exist to exclude the application of a

state, the application of such a state to the International
Court of Justice is admissible. The five grounds upon which
the United States (D) challenged the admissibility of
Nicaragua’s (P) application were that the plaintiff failed
because there is no “indispensable parties” rule when it
could not bring forth necessary parties, Nicaragua’s (P)
request of the Court to consider the possibility of a threat to
peace which is the exclusive province of the Security
Council, failed due to the fact that I.C.J. can exercise
jurisdiction  which is concurrent with that of the Security
Council, that the I.C.J. is unable to deal with situations
involving ongoing armed conflict and that there is nothing
compelling the I.C.J. to decline to consider one aspect of a
dispute just because the dispute has other aspects due to
the fact that the case is incompatible with the Contadora
process to which Nicaragua (P) is a party.
 18

Shelf Case (1969)

ICJ Rep 3
Doctrine: It said  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 a treaty (by a means other than
in the formal manner: i.e. ratification) when the State was ‘at all times
fully able and entitled to…’ accept the treaty commitments in a formal
manner.

Facts: Netherlands and Denmark had drawn partial boundary

lines based on the equidistance principle (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
(B-E and D-E) where as Germany was of the view that,
together, these two boundaries would produce an inequitable
result for her. Germany stated that due to its concave coastline,
such a line would result in her loosing out on her 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 espoused by the
parties were binding on the parties either through treaty law or
customary international law.
 19

Issue: Whether or not Germany under a legal obligation to

accept the equidistance-special circumstances principle,
contained in Article 6 of the Geneva Convention on the
Continental Shelf of 1958, either as a customary international law
rule or on the basis of the Geneva Convention?

Ruling: The use of the equidistance method had not crystallised

into customary law and the method was not obligatory for the
delimitation of the areas in the North Sea related to the present
proceedings.

Article 6 of the Geneva Convention  stated that unless the

parties had already agreed on a method for delimitation or unless
special circumstances exist, the equidistance method would
apply. Germany had signed, but not ratified, the Geneva
Convention, while Netherlands and Denmark were parties to the
Convention. The latter two States argued that while Germany is
not a party to the Convention (not having ratified it), she was still
bound by Article 6 of the Convention because:“…(1)  by conduct,
by public statements and proclamations, and in other ways, the
Republic has unilaterally assumed the obligations of the
Convention; or has manifested its acceptance of the conventional
 20

regime; or has recognized it as being generally applicable to the

delimitation of continental shelf areas…; (2) the Federal Republic
had held itself out as so assuming, accepting or recognizing, in
such a manner as to cause other States, and in particular
Denmark and the Netherlands, to rely on the attitude thus taken
up” (the latter is called the  principle of estoppel).

The Court rejected the first argument. It said 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 a treaty (by a means other than in
the formal manner: i.e. ratification) when the State was ‘at all
times fully able and entitled to…’ accept the treaty commitments
in a formal manner. The Court held that Germany had not
unilaterally assumed obligations under the Convention. The court
also took notice of the fact that even if Germany ratified the treaty,
she had the option of entering into a reservation on Article 6,
following which that particular article would no longer be
applicable to Germany (in other words, even if one were to
assume that Germany had intended to become a party to the
Convention, it does not presuppose that it would have also
undertaken those obligations contained in Article 6).

The Court held that the existence of a situation of

estoppel would have allowed Article 6 to become binding on
Germany – but held that Germany’s action did not support an
argument for estoppel. The Court also held that the mere fact that
Germany may not have specifically objected to the equidistance
principle as contained in Article 6, is not sufficient to state that the
principle is now binding upon it. In conclusion, the Court held that
Germany had not acted in any manner so as to incur obligations
contained in Article 6 of the Geneva Convention. The
equidistance–special circumstances rule was not binding on
Germany by way of treaty law.
 21

Anglo-Norwegian Fisheries Case (1951)

ICJ 116
Doctrine: The idea that an existing customary law rule would not
apply to a State if (1) it objected  to the application of the rule to itself
(2) at the initial stages and (3) in a consistent manner.

Facts: The United Kingdom requested the court to decide

if Norway had used a legally acceptable method in drawing the
baseline from which it measured its territorial sea. The
United Kingdom argued that customary international law did not
allow the length of a baseline drawn across a bay to be longer
than ten miles. Norway argued that its delimitation method was
consistent with general principles of international law.

Issue: Whether or not is it valid, under international law, of the

methods used to delimit Norway’s territorial sea/ fisheries zone. 

Ruling: The formation in the customary law The Court referred

to (1) positive State practice and (2) lack of contrary State
practice  as a confirmation of an existing rule of customary
international law (see p. 17 and 18). There was no mention
of opinio juris in this early judgment. In the following passage,
the Court considered expressed dissent by States regarding a
particular practice to be detrimental to the existence of an
alleged general rule. Yet, the Court did not examine
further whether these States adopted a contrary practice
because, for example, (1) they were claiming an exception to
the rule (see the Nicaragua jurisprudence) or (2) because
they believed that the said rule did not possess the character of
customary law.

“In these circumstances the Court deems it necessary to point

out that although the ten-mile rule has been adopted by certain
States both in their national law and in their treaties and
 22

conventions, and although certain arbitral decisions have

applied it as between these States, other States have adopted
a different limit. Consequently, the ten-mile rule has not
acquired the authority of a general rule of international law.”

The Court in its judgment held that even if a customary law rule
existed on the aforementioned ten-mile rule,

“…the ten-mile rule would appear to be inapplicable as against

Norway inasmuch as she has always opposed any attempt to
apply it to the Norwegian coast.”

In this case, the Court appears to support the idea that an

existing customary law rule would not apply to a State if (1) it
objected to the application of the rule to itself (2) at the initial
stages and (3) in a consistent manner. The Anglo Norwegian
Fisheries Case, thus, supports the Asylum Case (Peru vs
Colombia) in articulating what we now call the persistent
objector rule.
 23

Hilao V. Estate of Marcos

(25 F.3d 1467)
Doctrine: The United States has moved toward recognizing similar
“command responsibility” for torture that occurs in peacetime,
perhaps because the goal of international law regarding the
treatment of noncombatants in wartime “to protect civilian populations
and prisoners ․ from brutality”

Facts: This case arises from human-rights abuses-specifically,

torture, summary execution, and “disappearance”-committed by
the Philippine military and paramilitary forces under the
command of Ferdinand E. Marcos during his nearly 14-year rule
of the Philippines.

Issue: Whether or not President Ferdinand Marcos can be held

liable in extra judicial killings committed outside the country in
his performance as the Military Commander during the War?

Ruling: Yes. The principle of “command responsibility” that

holds a superior responsible for the actions of subordinates
appears to be well accepted in U.S. and international law in
connection with acts committed in wartime, as the Supreme
Court's opinion in In Re Yamashita indicates: The gist of the
charge is an unlawful breach of duty by petitioner as an army
commander to control the operations of the members of his
command by ‘permitting them to commit’ the extensive and
widespread atrocities specified․ The law of war presupposes
that its violation is to be avoided through the control of the
operations of war by commanders who are to some extent
responsible for their subordinates․ Provisions of international
law plainly imposed on petitioner, who at the time specified was
military governor of the Philippines, as well as commander of
 24

the Japanese forces, an affirmative duty to take such measures

as were within his power and appropriate in the circumstances
to protect prisoners of war and the civilian population. This duty
of a commanding officer has heretofore been recognized, and
its breach penalized by our own military tribunals. The United
States has moved toward recognizing similar “command
responsibility” for torture that occurs in peacetime, perhaps
because the goal of international law regarding the treatment of
noncombatants in wartime “to protect civilian populations and
prisoners ․ from brutality”, Yamashita, 327 U.S. at 15, 66 S.Ct.
at 347-48-is similar to the goal of international human-rights
law. This move is evidenced in the legislative history of the
TVPA: A higher official need not have personally performed or
ordered the abuses in order to be held liable. Under
international law, responsibility for torture, summary execution,
or disappearances extends beyond the person or persons who
actually committed those acts-anyone with higher authority who
authorized, tolerated or knowingly ignored those acts is liable
for them.
 25

Pharmaceutical and Health Care Association of the Philippines

v. Health Secretary Francisco T. Duque
G.R. No. 173034
Doctrine: The transformation method requires that an international
law be transformed into a domestic law through a constitutional
mechanism such as local legislation. The incorporation method
applies when, by mere constitutional declaration, international law is
deemed to have the force of domestic law.

Facts: Named as respondents are the Health Secretary,

Undersecretaries, and Assistant Secretaries of the Department
of Health (DOH). For purposes of herein petition, the DOH is
deemed impleaded as a co-respondent since respondents
issued the questioned RIRR in their capacity as officials of said
executive agency.1Executive Order No. 51 (Milk Code) was
issued by President Corazon Aquino on October 28, 1986 by
virtue of the legislative powers granted to the president under
the Freedom Constitution. One of the preambular clauses of the
Milk Code states that the law seeks to give effect to Article 112
of the International Code of Marketing of Breastmilk Substitutes
(ICMBS), a code adopted by the World Health Assembly (WHA)
in 1981. From 1982 to 2006, the WHA adopted several
Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be
ensured that nutrition and health claims are not permitted for
breastmilk substitutes. In 1990, the Philippines ratified the
International Convention on the Rights of the Child. Article 24 of
said instrument provides that State Parties should take
appropriate measures to diminish infant and child mortality, and
ensure that all segments of society, specially parents and
children, are informed of the advantages of breastfeeding. On
May 15, 2006, the DOH issued herein assailed RIRR which
was to take effect on July 7, 2006.
 26

Issue: Whether or not Administrative Order or the Revised

Implementing Rules and Regulations (RIRR) issued by the
Department of Health (DOH) is not constitutional;

Ruling: Yes. Under Article 23, recommendations of the WHA

do not come into force for members, in the same way that
conventions or agreements under Article 19 and regulations
under Article 21 come into force. Article 23 of the WHO
Constitution reads:
Article 23. The Health Assembly shall have authority to make
recommendations to Members with respect to any matter within
the competence of the Organization
for an international rule to be considered as customary law, it
must be established that such rule is being followed by states
because they consider it obligatory to comply with such rules

Under the 1987 Constitution, international law can become part

of the sphere of domestic law either

By transformation or incorporation. The transformation method

requires that an international law be transformed into a
domestic law through a constitutional mechanism such as local
legislation. The incorporation method applies when, by mere
constitutional declaration, international law is deemed to have
the force of domestic law.

 Consequently, legislation is necessary to transform the

provisions of the WHA Resolutions into domestic law. The
provisions of the WHA Resolutions cannot be considered as
 27

part of the law of the land that can be implemented by

executive agencies without the need of a law enacted by the
legislature