PROPOSE ANSWERS ( BAR QUESTION)

1. May a treaty violate international law?


A treaty may violate international law.

Generally, a treaty is governed by international law. This international law, it being sourced from international customary law and generally accepted principle of law, has been widely applied between sovereign estates and other entities granted with international personality. However, when a treaty contained an illegal and unlawful subject, in such a way that it is inconsistent with the customary law and the generally accepted principle of law, the same may constitute violation of the international law.

To give example, the Treaty of Tordesillas of 1494 in which it sought to divide between Spain and Portugal parts of the Atlantic, Pacific and Indian Oceans which are open seas under the law of nations, a treaty which allow traffic in white slavery or narcotics is contrary to international conventions and public morality, or the operation of the activities of pirates, who are hostes humanis generis, would be null and void.



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 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 treaty abrogation without the concurrence of the Senate is not valid.

The country-party to the treaty is agreeable to the abrogation provided it complies with the Philippine Constitution; hence, under Section 21, Article VII of the Constitution expressly provides that, “No treaty or international agreement shall be valid and effective unless concurred in by atleast two-third votes of all members of the Senate”. The constitutional grant given to the President the sole power to ratify a treaty shall be limited only to such act and not to any act of abrogation when the other country-party so agrees and provides that it should comply with the Constitution.

Therefore, concurrence of the Senate is indispensable so that abrogation thereto shall be valid.