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a) The legal yardstick in determining whether usage has become customary international law is expressed in the maxim opinio juris sive necessitatis or opinio juris for short. What does the maxim mean? (3%)

b) Under international law, differentiate "hard law" from "soft law". (3%)

A.

Opinio juris sive necessitatis ("an opinion of law or necessity") or simply opinio juris' ("an opinion of law") is the belief that an action was carried out because it was a legal obligation.

B.

Hard Law: arises from treaties, regulations, community method. Soft Law: not obligatory, no sanction, no uniformity, not justiciable.

This is the first time I encountered this question. But, I'll just try, applying my humble knowledge in PIL.


Hard law refers to international laws, rules, customs, treaties which demand faithful compliance from the states and are binding upon them, the violations of which would subject the erring states to internationally-recognized sanctions.

Soft law, by implication, are those set of international customary rules, laws and customs which do not carry any binding effect whatsoever or impose no obligation at all to states for its compliance.

Q. The legal yardstick in determining whether usage has become customary international law is expressed in the maxim opinio juris sive necessitates or opinio juris for short. What does the maxim mean? (3%)

A. The maxim “opinio juris sive necessitates” or simply “opinio juris” means that States observe a practice or a norm out of a sense of legal obligation or a belief in its juridical necessity. Opinio juris is the subjective element of international customs, the objective element being the long and consistent practice of States.

Q. Under international law, differentiate “hard law” from “soft law”. (3%)

A. “Hard law” refers to binding international legal norms or those which have coercive character. “Soft law,” on the other hand, refers to norms that are non-binding in character but still have legal relevance. Examples of “hard law” are the provisions of the U.N. Charter, the Vienna Convention on Diplomatic Relations, the Geneva Conventions of 1949 and other treaties in force. Examples of “soft law” are resolutions of the U.N. General Assembly and draft articles of the International Law Commission. Soft law usually serves as precursor of hard law. The Universal Declaration of Human Rights is one such example. It was a “soft law” when it was adopted by resolution of the U.N. General Assembly in 1948, but it led to the development of “hard law” with the adoption of two binding covenants on human rights, i.e., the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

A.) Hard law is that form of international law which is reduced in writing. In other words, there is a hard document to evidence such international law like treaties.

Soft law, on the other hand, is that part of international law which is not in written form. An example would be international customary law.