CUSTOMARY INTERNATIONAL LAW

Customary International law consists of rules derived from the consistent conduct of
States, acting out of the belief that the law required them to act that way.

Elements of customary norms:

1. Duration or long practice;

2. Consistency of the State practice or the widespread repetition by the States of
similar international acts over time;
3. Generality of the State Practice or that the acts are taken by a significant number
of States and not rejected by a significant number of States; and
4. Opinio Juris Sive Necessitatis or the requirement that the acts must occur out of
a sense of obligation.

Objectivist approach - considers customary norms of International Law as having

universal application and therefore binding on all States.

Participatory Approach - considers that the rules of law binding upon States emanates
from their own free will as expressed in conventions or by usages generally accepted as
expressing principles of law and established in order to regulate relations between
these coexisting independent communities or with a view to the achievement of
common aims. Restrictions upon the independence of States cannot therefore be
presumed (The Case of the S.S. Lotus, France v. Turkey, September 7, 1927, P.I.C.J.,
Ser. A, No. 10).

Persistent Objector Doctrine

Under this doctrine, if a State persistently objects to a developing norm of International

Law, it will not be bound by that norm when it ripens into a customary norm. This is a
valid defense against the enforceability of a customary norm to the persistent objector.

General Principles of Law

General Principles of International Law are those which are recognized by civilized
nations to be so fundamental that they are a basic tenet in virtually every major legal
system. They are derived from domestic law.

Please read the case of Temple of Preah Vihear (Cambodia v. Thailan), 1962 I.C.J.
Reports 6, June 15, 1962.
See link: 045-19610526-JUD-01-00-EN.pdf (icj-cij.org) or 4859.pdf (icj-cij.org)

What is the concept of ex aequo et bono?

It is the Latin for “according to what is equitable and good.” It is the power given to a
court or an arbitral panel to resolve a dispute based only on equity and conscience,
even disregarding the law.

May the International Court of Justice decide a dispute submitted to it ex aequo et

bono?

Yes, Article 38 (2) of the Statute of International Court of Justice provides that
application of the sources enumerated in Article 38 (1) shall not prejudice the power of
the Court to decide a case ex aequo et bono, if the parties agree thereto.

When parties agree to have their cases ex aequo et bono, the International Court of
Justice may then use equity as an overriding principle, that is, disregarding all other
available sources of International Law, even the principal ones.

THE ROLE OF JUDGES AND PUBLICIST

No amount of strong language in a judicial decision or scholarly writing stressing that a

given rule is the norm will make it a rule of International Law if it is not recognized by
States as a binding norm.

The work of scholars is more influential in the international legal system than in the
municipal legal systems. International groups of publicists serve the development of
International Law both by codifying existing rules of law and by proposing new rules.
Their works are subsidiary means for the determination of rules of International Law.

DUALISM v. MONISM

Municipal law is a product of local legislation whereas the sources of international law
are treaties and custom grown among states. They differ as regards the relations they
regulate. Municipal law regulates relations between individual persons under the state
whereas international law regulates relations between states.

Municipal law is a law of the sovereign over individuals whereas international law is a
law between sovereign states.
For dualist, when international law and municipal law conflict, municipal law must
prevail. Opposite to the dualist is the Monistic Theory, under this theory international law
and domestic law belong to one system of law. However, it constitutes two theories.

1. One theory holds that municipal law subsumes and superior to international law;
and
2. Second theory, supported by Kelsen holds that international law is superior to
domestic law. The superiority of international law is seen as flowing from a deep
suspicion of local sovereigns and from the conviction that international law can
imbue the domestic order with a sense of moral purpose.

Article 27 of the Vienna Convention on the Law of Treaties says, “A party may not
invoke the provisions of its internal law as justification for its failure to perform a treaty.”

This follows the dualist tradition and blocks domestic law from entry into the
international arena. Thus, a state which has violated a provision of international law
cannot justify itself by recourse to its domestic law.

However, the two systems cannot be completely separated. Thus, Article 38 recognizes
the common teachings of domestic law as part of international law. Barcelona Traction
Case said:

If the Court were to decide the case in disregard of the relevant

institutions of municipal law, it would without justification, invite
serious legal difficulties. It would lose touch with reality…

Under the 1987 Constitution, what are the ways by which international law
can become part of the sphere of domestic law?

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 declaragtion,

international law is deemed to have the force of domestic law (Pharmaceutical
and Health Care Association of the Philippines v. Duque III, G.R. No. 173034,
October 09, 2007).

Read the case of:

Drilon v. Lim, G.R. No. 112497, August 04, 1994.