Pacta Sunt Servanda (A Research and Study material by our Intern)
An attempt to study the concept of Pacta Sunt Servanda to understand its scope and limitations in the sphere of International Law.
Pacta Sunt Servanda is a very important principal in the sphere of International Law in which every treaty in force is binding upon the signatory parties and they must be executed in good faith.
What is a treaty?
Treaty is a formal written agreement by which two or more states create a relation between themselves. Treaties are an important source of international law. Whenever an international court has to decide on any dispute, the first thing it tries to find is whether there is any international treaty governing the matter under dispute. The decision of the court is based on the provisions of the treaty. Treaties occupy the same position in international law as the legislation occupies in municipal law.
The question is what makes a treaty valid? or What is the binding force of a treaty?
Many Jurists hold different views on this, which has led to the emergence of two important theories as the basis of international law i.e Naturalist Theory and Positivist Theory.
1) The exponent of Naturalist Theory, believes that the binding force of any treaty is the law of nature. Earlier it was connected with religion.
2) In Positivist Theory, Jurist believes that it is the ‘consent of parties’ which give binding force to the treaties.
THEORY OF PACTA SUNT SERVANDA
It is based on the Positivist Theory. The binding effect of treaties is expressed in the form of the principle ‘Pacta Sunt Servanda’. It is a Latin phrase which means, "agreements must be kept".
It is a universally agreed principle. that it is the duty of the States to carry obligations “in good faith” that have arisen from treaties. No government can refuse to accept this principle. In simple terms, why would States establish any relationship between them without ‘trust or faith’ in each other. This is very vital in establishing and maintaining relations between states. It becomes the basis of international law. In the view of Italian Jurist, Anzilotti a chief exponent of Positivist School, “the binding force of international treaty is on account of the fundamental principle known as Pacta Sunt Servanda”.
Explicit reference to pacta sunt servanda in an international legal instrument was first made while drafting the Vienna Convention on the Law of Treaties of 1969 (VCLT).
Article 26 states, every treaty in force is binding upon the parties to it and must be performed by them in good faith.
“Good Faith” means Party to a treaty is required to, interpret and perform the provisions of the treaty in good faith. This is strongly supported by Article 27 of VCLT, “A state shall cannot invoke the provisions of its Internal law, as justification for its failure to perform a treaty”
In Lockerbie case - ICJ Reports 1992 pp. 3, 32, judge Shahabuddin emphasised that inability under domestic law to act is no defence to non-compliance with an international obligation
Interpretation of Peace Treaties case, ICJ Reports, 1950, p 65, it is stated that failure to perform a treaty obligation involves international responsibility.
LIMITATIONS
The maxim ‘Pacta Sunt Servanda’ cannot be applied in every treaty. For example it will not apply to unequal treaties, it embraces only lawfully concluded treaties.
Following are its exceptions[1],
● When a revolution or a national liberation struggle gives rise to a new social structure. The new state authority is entitled to denounce the humiliating and unacceptable treaties of the deposed (removed from office) government.
● When one of the counter agents is no longer an international law subject, as a result of merging of several states into a single state or the division of one state into two or three.
● When the obligation or associated with the territory over which the corresponding state has lost territorial supremacy.
CONCLUSION
The Principle of ‘pacta sunt servanda’ is regarded as the basis of validity and existence of a treaty. It serves as an effective instrument of international cooperation. The contracting parties are required to carry out their obligation arising from a treaty in good faith. In the current phase of international law, treaties and conventions are the most important source of international law. If this principle is not observed, they will lose their existence completely.
CASE - PAKISTAN OCCUPIED KASHMIR[2]
Pakistan has clearly violated this principle of Pacta Sunt Servanda over the decades. Pakistan’s first violation of International Law dates back when Tribesmen of Pakistan (secretly sent by Pakistan Army) marched into Kashmir in October 1947 even though the then Ruler of Kashmir, Maharaja Hari Singh, did not come to any conclusion of joining either India or Pakistan. Due to this act of Pakistan, Hari Singh had to flee and seek help from India and apparently, ratified the treaty of accession that ceded Kashmir to India on 26th October 1947. This was supposed to be treated as a legal instrument of Accession and a monumental step but Pakistan did not conform to it and a war broke out between the two nations. Pt. Jawaharlal Nehru, the then Prime Minister of newly Independent India, had to take this subject matter to the United Nations Security Council as Pakistani forces were not backing out. As on 21st April 1948 United Nations Security Council (UNSC) specifically directed Government of Pakistan to secure the withdrawal from the State of Jammu and Kashmir of tribesmen and Pakistan nationals not normally residents therein who have entered the State for the purpose of fighting, and to prevent any intrusion into the State of such elements and any furnishing of material aid to those fighting in the State. [As mentioned in UNSC resolution no. 47, Para A (1) a]
Pakistan did not pay any heed to this resolution. Ultimately, United Nations had to call for a cease-fire, which apparently led to Pakistan Occupied Kashmir (POK).
BIBLIOGRAPHY
International Law & Human Rights - S.K. Kapoor (Centra Law Agency) - ISBN: 978-93-84852-75-7