BAR QUESTIONS

II.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.

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)

III.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?

The case must be resolved in affirmative. The President alone without the concurrence of the Senate can abrogate a treaty since being the head of state, she is regarded as the sole organ and authority in external relations. Hence, the President is vested with the authority to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign relations. The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. By requiring the concurrence of the legislature in the treaties entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the nation’s pursuit of political maturity and growth.