Pharmaceutical and Healthcare Association of the Philippines v.

Duque III

DOCTRINE

Under the Incorporation Clause, generally accepted principles of international law are those
customary rules accepted as binding and established in different jurisdictions. They are not
recommendatory but are part of the general and consistent practice of states from a sense of
obligation.

FACTS

Petitioner Pharmaceutical and Healthcare Association of the Philippines sought to nullify

Administrative Order No. 2006-0012 or the Revised Implementing Rules and Regulations of the
Executive Order No. 51 or the Milk Code (RIRR). The Petitioner alleged that the RIRR is invalid
because it contains provisions that are not constitutional and go beyond the law it is supposed to
implement. Specifically, the RIRR prohibits advertising, promotion, sponsorships, or marketing
breastmilk substitutes for infants and young children. Through the RIRR, the Respondents
Department of Health officials amended and expanded the Milk Code.

In its defense, 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.

HELD

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. Further, the Court held that under the
Incorporation Clause, generally accepted principles of international law are those customary rules
accepted as binding and established in different jurisdictions. They are not recommendatory but
are part of the general and consistent practice of states from a sense of obligation. If they are
recommendatory, these international laws are called soft law or non-binding norms, principals,
and practices that influence state behavior, as opposed to hard law which are binding rules of
international law.

In the present case, the ICMBS and subsequent resolutions are merely recommendatory and
legally non-binding because the WHA Regulations provides that recommendations of the
assembly do not come into force for members, unlike conventions, agreements, or regulations as
they may be deemed as such. In fact, the WHA recommendations are generally not binding but
merely carry moral and political weight on certain health issues, according to the World Health
Organization (WHO). The ICMBS itself provides that the code on the marketing of breastmilk
substitutes was adopted in the form of recommendation rather than a regulation. Thus, though
the Milk Code adopted most of the provisions under the ICMBS, the subsequent WHA
resolutions, which includes the non-promotion or advertisement of breastmilk substitutes, have
not been adopted as a domestic law, and cannot be considered as part of the law of the land.

Further, the WHA Resolutions cannot be considered as customary international law because the
Respondents have not presented evidence that the said resolutions were enforced or adopted by
at least a majority of the members-states. They also failed to prove that any compliance by
member-states was obligatory in nature. Hence, they cannot be considered as generally
accepted principles of international law which shall form part of the law of the land through the
Doctrine of Incorporation, and may not be used by the Respondents as basis for the RIRR