PUBLIC INTERNATIONAL LAW BAR
EXAM QUESTIONS CORRECTLY
SOLVED WITH VERIFIED ANSWERS
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%) - ANSWER-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%) - ANSWER-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%) - ANSWER-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%) - ANSWER-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
killed the person he was arguing with. The police came, and brought him to the nearest
police station. Upon reaching the
station, the police investigator, in halting English, informed William of his Miranda rights,
and assigned him an independent
local counsel. William refused the services of the lawyer, and insisted that he be
assisted by a Filipino lawyer currently based
in the U.S. The request was denied, and the counsel assigned by the police stayed for
the duration of the investigation.
EXAM QUESTIONS CORRECTLY
SOLVED WITH VERIFIED ANSWERS
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%) - ANSWER-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%) - ANSWER-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%) - ANSWER-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%) - ANSWER-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
killed the person he was arguing with. The police came, and brought him to the nearest
police station. Upon reaching the
station, the police investigator, in halting English, informed William of his Miranda rights,
and assigned him an independent
local counsel. William refused the services of the lawyer, and insisted that he be
assisted by a Filipino lawyer currently based
in the U.S. The request was denied, and the counsel assigned by the police stayed for
the duration of the investigation.
