Bar Questions

1.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.
No, a treaty may generally not violate international law. One of the essential requisites of a valid treaty is that it must contain a lawful subject matter. A violation of the international law makes such subject unlawful. Therefore, any agreement that violates international law makes a treaty null and void. Any treaty that violates jus cogens is rendered void and not binding.
In addition, a treaty has the following functions :a) enable parties to settle actual and potential conflicts; b) modify the rules of international customary law by means of optional principles and standards ; c) transformation of once unorganized international society into an organized one; d) provide a humus for the growth of international law. The abovementioned functions serve to augment and strengthen the existence of international laws and not to provide an avenue to ridicule or even violate it. Thus, the treaty is deemed illegal only when it contravenes or departs from an absolute or imperative rule or prohibition of international law.
Lastly, in order for a provision to become international law, it should obtain wide acceptability in principle and of an international character that is not leaning towards any culture, gender, race or any other factor. A treaty in violation thereof destroys the general acceptability that such principle holds.

2.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 that 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?
The abrogation of a treaty solely by the President without the concurrent of the Senate is a valid act or is not unconstitutional. The concurrence of the Senate is not ratification. However, non-concurrence by the Senate makes a treaty not enforceable. The President or the Philippines’ head of state has the sole right or duty to make or enter into treaties. The Constitution does not provide for the authority to abrogate. As the power to ratify is lodged in the President, then it can be inferred that the power to abrogate is rightfully lodged in the same authority.