Comprehensive 2024 Public International Law Bar
Exam: Key Questions,
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.
William, a private American citizen, a university graduate and frequent visitor to the Philippines, was
inside the U.S.
embassy when he got into a heated argument with a private Filipino citizen. Then, in front of many
shocked witnesses, he
Exam: Key Questions,
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.
William, a private American citizen, a university graduate and frequent visitor to the Philippines, was
inside the U.S.
embassy when he got into a heated argument with a private Filipino citizen. Then, in front of many
shocked witnesses, he
