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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.