Bar Questions 2008

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.

A : A treaty may generally not violate international law if not in accordance with the principle of jus cogens. It happens when the subject matter of the treaty of the contracting parties can not be legally complied with because it is forbidden by universally recognized principle of 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.

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?

A : The Supreme Court should declare the treaty abrogation invalid.

While the Constitution is silent on whether a treaty abrogation shall require the concurrence of the Senate to make it valid and effective, the treaty-ratifying power of Senate carries with it the power to concur a treaty abrogated by the President by way of necessary implication.

Under the doctrine of incorporation, a treaty duly ratified by the Senate and recognized as such by the contracting State shall form an integral part of the law of the land. The President alone cannot effect the repeal of a law of the land formed by a joint action of the executive and legislative branches, whether the law be a statute or a treaty. To abrogate a treaty, the President’s action must be approved by the Senate.