SUGGESTED ANSWERS TO THE 2008 BAR EXAM QUESTIONS ON PUBLIC INTERNATIONAL LAW

 Q.   The legal yardstick in determining whether usage has become customary international law

is expressed in the maxim opinio juris sive necessitates or opinio juris for short. What does the maxim mean? (3%)

A. The maxim “opinio juris sive necessitates” or simply “opinio juris” means that States observe a practice or a norm out of a sense of legal obligation or a belief in its juridical necessity. Opinio juris is the subjective element of international customs, the objective element being the long and consistent practice of States.

Q. Under international law, differentiate “hard law” from “soft law”. (3%)

A. “Hard law” refers to binding international legal norms or those which have coercive character. “Soft law,” on the other hand, refers to norms that are non-binding in character but still have legal relevance. Examples of “hard law” are the provisions of the U.N. Charter, the Vienna Convention on Diplomatic Relations, the Geneva Conventions of 1949 and other treaties in force. Examples of “soft law” are resolutions of the U.N. General Assembly and draft articles of the International Law Commission. Soft law usually serves as a precursor of hard law. The Universal Declaration of Human Rights is one such example. It was a “soft law” when it was adopted by resolution of the U.N. General Assembly in 1948, but it has led to the development of “hard law” with the adoption of two binding covenants on human rights, i.e., the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Q. May a treaty violate international law? If your answer is in the affirmative, explain when such may happen. If your answer is in the negative, explain why. (5%)

A.    Yes, a treaty may violate international law when at the time of its conclusion, it conflicts with a peremptory norm of general international law (jus cogens) or if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations. (Vienna Convention on the Law of Treaties, Arts. 52 & 53)

 Q. The President alone without the concurrence of the Senate abrogated a treaty. Assume that

the other country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution. If a case involving the validity of the treaty abrogation is brought to the Supreme Court, how should it be resolved? (6%) 

A.  The Supreme Court should sustain the validity of the treaty abrogation. While the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body's participation in the abrogation of a treaty. In light of the absence of any constitutional provision governing the termination of a treaty, and the fact that different termination procedures may be appropriate for different treaties, the case must surely be controlled by political standards, even more so because it involves the conduct of foreign relations.