Emergence of the Principle Pacta Sunt Servanda in International Law

Article 26[1] of Vienna Convention on Law of Treaties (VCLT) i.e. Pactus sunt servanda. Pacta Sunt Servanda is Latin for “Agreements Must Be Kept.” This maxim is one of the ancient foundations of law itself.[2] The rule that treaties are binding at the parties and need to be completed in good faith- is the fundamental principle of the law of treaties. There is much authority in the jurisprudence of international tribunals for the proposition that in the present context the principle of good faith is a legal principle which forms an integral part of the rule pacta sunt servanda.[3]

The principle is, however, also a part of customary law. The ICJ has held that this rule consists of 2 components of equal importance.[4] First, each accord effective is binding upon the parties to it: a state that is party to many conventions cannot opt to accommodate one accord at the expense of another. Second, religion, straightness, good faith underneath pacta sunt servanda obliges parties to accord to use treaties in an exceedingly affordable approach and in such a way that their purpose is often realized.

Certainly, the phrase pacta sunt servanda, inside the first instance, had a religious origin, with time, however, it was included into international law, and it could now be defined as a part of customary law.

Emergence

According to the view of the humans of historic times (just like the Chaldeans[5] , the Egyptians and the Chinese), the national gods of every party took part inside the formation of the contract. The gods have been, so that you can speak, the guarantors of the contract and that they threatened to intervene against the faction guilty of a breach of contract. So it got here to be that the making of an agreement changed into certain up in solemn religious formulation and that a cult of contracts actually developed.

For the Islamic peoples, the principle, pacta sunt servanda, has also a religious basis. This is clearly expressed by the Koran in many places, for example, where it is said: “Be you true to the obligations which you have undertaken…. Your obligations which you have taken in the sight of Allah. . . . For Allah is your Witness. “[6]

The Romans also appreciate this precept and became an extremely crucial part of their judicial workings. It even had a notable position to play in Christianity. During the renaissance, this principle became connected with the theories of Machiavelli and soon became an essential a part of International law.

We shall discuss ourselves no farther with the overall foundations of international law, as the sort of discussion would go beyond the framework of the prevailing study. It is vital to ascertain, however, upon what legal sources the maxim pacta sunt servanda rests, in line with the international law now in force.

For those who consider truthful that the “general principles of law” shape a third source of international law, which isn’t restricted to the jurisdictional machinery of the International Court of Justice in The Hague, the precept of the sanctity of contracts is any such general legal principle. It is discovered in foro domestico[7] , as we’ve seen, in all countries. Without the powerful instrument of the agreement, no international law is possible.

In the London Protocol of January 17, 1871, it was stated that the representatives of North Germany, Austro-Hungary, Great Britain, Italy, Russia and Turkey, having met in a conference, recognized as a important principle of international law that no Power can repudiate the obligations of a contract nor alternate its provisions without having acquired first the consent of the opposite contracting parties by means of a peaceful understanding. Thus, it’s far easily understandable that no arbitral tribunal has ever rejected the rule of pacta sunt servanda, or maybe thrown doubt on it. On the other hand, instances are several in which international arbitration tribunals have expressly emphasized and recognized the rule.

In his decision of April 7, 1875, the U. S. Ambassador in Santiago, as sole arbitrator inside the dispute between Chile and Peru, held:

“It is a principle well established in international law that a treaty containing all elements of validity cannot be modified except by the same authority and according to the same procedure as those which have given birth to it.[8].”

In the case of Ch. Adr. van Bokkelen, between the United States and Haiti, the arbitrator, A. Porter Morse, in his decision of December 4, 1888, stated:

“Treaties of every kind, when made by the competent authority, are as obligatory upon nations as private contracts are binding upon individuals . . . and to be kept with the most scrupulous good faith.[9].”

In the Newfoundland controversy between the US and Great Britain, the Permanent Court of Arbitration in The Hague held, in its award of September 7, 1910:

“: Every State has to execute the obligations incurred by treaty bona fide, and is urged thereto by the ordinary sanctions of international law in regard to observance of treaty obligations.[10]”

Nuclear Tests Case

The maxim ‘pacta sunt servanda’ has been said to relate entirely to the law of treaties. The rationale behind the maxim is seemingly self-evident: a need by the global network for a system that can ensure global order and avert arbitrary behaviour and chaos.

The Nuclear Test case, which was a case among Australia and France remains an incredible source of anger and agitation among south pacific countries of Australia and New Zealand due to atrocious environmental vandalism through the republic of France.

From the 1960s, the undertaking trials of Nuclear weapons commenced at Mururoa Atoll in the South Pacific which also covered atmospheric testing. Australia and New Zealand argued that such practices ended in radioactive particles spreading in the course of the world. In order to prevent the testing, they took the matter to the International Court of Justice. The French counter-argued that the courtroom lacked jurisdiction. They additionally posted a public statement that they now not wished atmospheric testing.

Australia and New Zealand were not satisfied with the public testimony as not a thing stopped France from converting their minds and continuing atmospheric nuclear testing.

In the Nuclear Tests Case, the ICJ held that:

“One of the basic principles governing the creation and performance of legal obligations… is good faith. Trust and confidence are inherent in international cooperation, in particular in an age when this cooperation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.”[11]

In this case the Court gave those testimonies by a State (the declaring State) the same legal effects which can usually only be attributed to a binding synallagmatic treaty[12] closer to the receiving State. The Court found that if some prerequisites have been met, then a unilateral declaration can bind a State; those are: the context of the testimony, the aim of the asserting State, no necessary acceptance by using the accepting State or observance of formal requirements. For current purposes, the context and cause are of utmost importance.

Conclusion

In this article, we had discussed what the principle of Pacta Sunt Servanda is. We also talked about its historical background and saw that this principle has deep roots in historical records. Lastly, we noticed in The Nuclear tests case that how the testimony’s context (Unilateral Declaration) is important: it should be made publicly; a receiving State should be capable enough of taking cognizance of the declaration. The most important characteristic of the binding nature is the (subjective) intent of declaring State, as this distinguishes the testimony from other, nonbinding statements. However, the (objective) believe and confidence that is placed in the testimony by the accepting State is paramount to the formation of an obligation; here good faith acts as the norm regulating the legal impact of the act.

We have described above the emergence of the rule of pacta sunt servanda as a preferred principle of law, which can be found in all nations. It follows, therefore, that the principle is valid exactly in one and the same manner, whether it’s far in respect of contracts among states or in respect of contracts between states and privately owned companies. The entity of the interntional community is not only based upon the relation among states, however additionally, to an ever-increasing degree, on relation among states and overseas corporations or overseas individuals. No economic relations among the states and overseas corporation can exist without the principle pacta sunt servanda. The conclusion is therefore inescapable that in each case, such contracts are subject-matter to the general principle of law: Pacta sunt servanda.

Endnotes

[1]Article 26. “PACTA SUNT SERVANDA”, Vienna Convention on the law of treaties, Concluded at Vienna on 23 May 1969

[2] Black’s Law Dictionary 1282 (10th ed. 2014); Hans Wehberg, Pacta Sunt Servanda, 53 AM. J. INT’i L. 775, 780 (1959).

[3] Pg.798, THE LAW OF TREATIES, CASES AND MATERIAL ON INTERNATIONAL LAW, by DJ Harris (Sixth Edition)

[4] Gabčíkovo–Nagymaros Case

[5] Citizens of Chaldea, a country that existed between the late 10th or early 9th and mid-6th centuries BC, after which the country and its people were absorbed and assimilated into Babylonia

[6] Holy Quran, Religious text

[7] In a domestic court; in a tribunal of the home jurisdiction, as distinguished from a foreign court

[8] Translated from La Fontaine, Pasicrisie Internationale 165 (Bern, 1902).

[9] 2 Moore, History and Digest of the International Arbitrations to Which the United States Has Been a Party 1807, 1849-1850 (Washington, 1898).

[10] See the decision in James Brown Scott, Argument of the Honorable Elihu Root on behalf of the United States before the North Atlantic Coast Fisheries Arbitration Tribunal at The Hague 500 (Boston, 1912).

[11] Nuclear Tests Case (n 2) para 46

[12] A bilateral treaty creating reciprocal obligations

Contributed by: Rohan Kapoor (Maharashtra National Law University, Aurangabad)