Public International Law

Midterm Exam

Melanie T. Manatad
Student No.: 18-0601

Answers

1. Under the International Law, the term hard law refers to legally binding obligations that are
precise and it can be legally enforced before a court. It includes treaties or international
agreements, as well as customary laws. These instruments result in legally enforceable
commitments for countries and other international subjects. On the other hand, the term soft law
is used to denote agreements, principles and declarations that are not legally binding. Soft law
instruments are predominantly found in the international sphere. UN General Assembly resolutions is
one of the example of soft law.

2. A. Yes, the verbal agreement via telephone is binding. According to Aust Modern Treaty Law and
Practice, verbal agreement by telephone is binding between the parties on the basis of customary
international law.

B. No, the verbal agreement does not constitute a treaty. Under Vienna Convention on the Law
of Treaties, Article 3 requires that for an international agreement to be a treaty, it must be in
written form.

3. A. In this case, the petition filed of KMM must be denied. Under the law, The information sought
to be disclose by the parties is a diplomatic negotiation between States and is considered
privileged. it cannot be subjected to public scrutiny. The interest protected being the national
security and integrity of the State on how can it be trusted in terms of diplomatic secrets.

B. KKM is entitled to have access to information pertaining to government contracts entered into
by the Government in the exercise of its proprietary commercial capacity. Under the Constitution,
right to information does not include contracts of public interest and are not privileged. However,
the negotiations or communications in arriving at the final contract, the information sought
remains privileged and the interest must be protected.

4. In this case, the Supreme Court should not sustain the validity of the abrogation of the treaty. The
President cannot abrogated the treaty alone even if the other State, party to a treaty, agrees to
the abrogation. Under our Constitution, the president as head of state ratifies the treaty; the
legislative branch ratifies a treaty by 2/3 vote pursuant to Article VII, Sec. 21. Therefore, the
President cannot motu propio abrogate the treaty.

5. Opinio juris sive necessitates or simply opinion juris means that as an element in the formation of
customary norm in international law, it is required that States in their conduct amounting to
general practice, must act out of a sense of legal duty and not only by the motivation of courtesy,
convenience or tradition. According to the International Court of Justice in the North Sea
Continental Shelf Cases and quoted by the Philippine Supreme Court, “Not only must the acts
amount to a settled practice, but they must also be such, or be carried out in such a way, as to be
 evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it.” ]

6. In this case, it depends which court is deciding, if International Court, treaty obligation in general
will uphold. and if Domestic Court, local laws will uphold. When constitutional violation is
manifest and concerns a rule of internal law of fundamental importance, state may deviate from
treaty obligation. And, when the two instruments relate to the same subject, try to give effect to
both; if inconsistent, the later in date will control, provided that the treaty stipulation is self-
executing. But the rule applies in domestic sphere. A treaty, even if contrary to a later statute, is
binding in international law.

7. HIU

8. A. The treatment of “comfort woman” by the Japanese military violated Article XXVII of the
Geneva Convention (IV), which provides that: “Women shall be especially protected against any
attack on their honor, in particular against rape, enforced prostitution, or any form of indecent
assault.”

B. No, the defense is not valid. Even if it could be argued that the Philippines, by signing said Peace
Agreement had the right as a state to bring further claims, it had no authority to waive the
individual right to reparations vested directly in its nationals who were victims of sexual slavery.
The Philippines can only validly waive its right to recovery of reparations for injuries to the state.
Moreover, there is no defense for the violation of jus cogens norms.

C. The case will not prosper in view of the doctrine of sovereign immunity from suit. However, a
person who feels aggrieved by the acts of a foreign sovereign can ask his own government to
espouse his cause through diplomatic channels. Under the jurisprudence, The “comfort women”
can request the Philippine government, through the Department of Foreign Affairs, to espouse its
claims against the Japanese government. The sovereign authority of a State to settle the claims
of its national against foreign countries has repeatedly been recognized. This may be made
without the consent of the nationals or even without consultation without them.

9. Ftdf

10. Under the International law, state sovereignty is the basic concept of modern international law;
it is unthinkable without international law itself, as such. The new trends in considering the
problem of state sovereignty create the necessary prerequisites for understanding the nature and
character of modern international law, as well as the content of its basic principles.

11. State sovereignty is not absolute. According to the Supreme Court, the court held that it is subject
to limitations imposed by membership in the family of nations and limitations imposed by treaty
stipulations