Despite the absence of a superior authority in war. Such exemption has been known by the U.S.
International Law, reference can be had to the from the time of the War of Independence and has
sources. These sources are classified into primary and been recognized explicitly by the French and British
secondary. governments. However, in the North Sea Case, this
was held unnecessary in the formation of a customary
Primary Sources include International
law.
Convention, International custom, and the general
principles of law. Undisputedly, customary international law is
deemed incorporated into our domestic system,
Treaties or conventions, however, do not
otherwise, if the law does not qualify as a customary
automatically become a primary source of
law, then it must be transformed into a domestic law
international law, unless it is accepted and practiced
through legislation. In the Pharmaceutical and Health
by a sizable number of states and is reflected from the
Care association vs DOH case, the World Health
consensus of the family of nations.
Assembly Resolutions (WHA) adopting the
Customary international law, is quite daunting International Conference on Medical and Biosciences
because certain considerations must be taken into are merely recommendatory and legally non-binding.
account. Respondents have not presented any evidence to
In the North Sea Continental Shelf Cases, the prove that the WHA Resolutions, although signed by
ICJ went on to discuss how customary law is most of the member states, were in fact enforced or
established. These cases confirmed that both State practiced by at least a majority of the member states
practice (the objective element) and opinio juris (the and obligatory in nature. The provisions of the WHA
subjective element) are essential pre-requisites for the Resolutions cannot be considered as part of the law
formation of a customary law rule. of the land that can be implemented by executive
agencies without the need of a law enacted by the
For a customary rule to emerge, the Court legislature.
held that the following must be present: a)
consistency, b) generality, and c) opinion Juris Sive Adherence to the customary rules however is
Necessitatis not absolute, in so far as persistent objectors are
concerned. Persistent objectors pertain to states who
The basic rule on consistency, that is, objects to the practice of the custom from inception
continuity and repetition, was laid down in the Asylum and maintain such objection consistently overtime.
case. Colombia failed to prove the existence of a This objection however is not applicable to the jus
constant and uniform practice of unilateral cogens rule.
qualification as a right of the State of refuge and an
obligation upon the territorial state. Thus, Colombia The third primary source takes the form of
was not competent to qualify the nature of the generally accepted principles of international law,
offense by a unilateral and definitive decision binding which refers to norms of general or customary
on Peru. international law which are binding on all states
(PHAP vs Duque III). In addition, the Universal
Lastly, the concept of Opinio Juris sive Declaration of Human Rights (UDHR) has been
necessitates was further explained in the Nicaragua interpreted by this Court as part of the generally
case. The Court held that for a new customary rule to accepted principles of international law, thus, binding
be formed, the settled practice must also be on the State. (Poe-Llamanzares vs COMELEC)
accompanied by opinion juris sive necessitates. The
latter is anchored on the belief that this practice is The Secondary sources include judicial
rendered obligatory by the existence of a rule of law decisions and the teachings of the most highly
requiring it. qualified publicists of the various nations.
Duration of the practice was also named one
of the factors considered in the objective element. Conclusion:
This was affirmed in the Paquete Havana on the
exemption of fishing vessels from capture as prize of
International law can become part of the
sphere of domestic law either by transformation or
incorporation. Customary laws form part of the law of
the land, because of the binding force attached to
them. Thus, it is important to identify whether the
international law is not merely recommendatory,
otherwise, legislation must be had.
Another important takeaway from the
foregoing jurisprudence is the fact that duration does
not necessarily make an international law, customary,
the other factors must concur.