EMERGENCE OF THE PRINCIPLE PACTA SUNT SERVANDA IN INTERNATIONAL

LAW

EMERGENCE OF THE PRINCIPLE PACTA SUNT SERVANDA IN INTERNATIONAL

LAW

Project submitted to

Mr. Mohd Atif Khan

(Faculty: Public International law)

Project submitted by

Anushree Jugade

Semester: IV Roll no:24

Section: A

HIDAYATULLAH NATIONAL LAW UNIVERSITY

Raipur (C.G)

ACKNOWLEDGEMENTS
 EMERGENCE OF THE PRINCIPLE PACTA SUNT SERVANDA IN INTERNATIONAL
LAW

I feel highly elated to work on the topicThe Emergence of the Principle Pacta Sunt Servanda in
International Law. The practical realization of this project has obligated the assistance and help
of many people. I express my deepest regard and gratitude to my teacher, Mr. Mohd Atif Khan
for his inspiration and invaluable guidance has been of immense help in understanding and
carrying out the nuances of the project report.

My gratitude also goes out to the staff and administration of Hidayatullah National Law
University for the infrastructure in the form of our library and it lab that was a source of great
help for completion of this project.

Name : Anushree Jugade

Signature:

Semester: IV

TABLE OF CONTENTS

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INTRODUCTION........................................................................................................... 4
RESEARCH OBJECTIVES.............................................................................................. 5
REVIEW OF THE LITERATURE...................................................................................... 6
RESEARCH METHODOLGY........................................................................................... 7
SOURCES OF DATA...................................................................................................... 7
RESEARCH QUESTIONS............................................................................................... 7
HYPOTHESIS............................................................................................................... 7
SCOPE AND LIMITATION OF THE STUDY......................................................................8
ORIGIN OF PACTA SUNT SERVANDA............................................................................8
THE RELATIONSHIP BETWEEN GOOD FAITH AND PACTA SUNT SERVANDA..................13
THE CODIFICATION OF PACTA SUNT SERVANDA BY THE INTERNATIONAL LAW
COMMISSION.......................................................................................................... 16
CONCLUSION............................................................................................................ 20
BIBLIOGRAPHY.......................................................................................................... 21

Chapter 1
INTRODUCTION

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As noted by Crawford, the validity of Pacta Sunt Servanda has never been challenged in any
international court or tribunal.1It is evident that the principle's central role in public international
law enjoys universal, or near-universal, acceptance. The social expectation that agreements will
be kept has enjoyed greater significance in international law because the failure to observe treaty
commitments is often a source of armed conflict, even if one can argue that other values, such as
state preservation, have come to eclipse it. The wide acceptance of treaties as legally binding
may thus amount to an acknowledgment by the international community that "the only hope for
peace and security is for those pacts, once made, to be performed."2
As for the relevant legal doctrine, as noted by the International Court of Justice (ICJ) Pacta Sunt
Servanda under Article 26 of the VCLT combines two elements: (1) The binding nature of treaty
obligations themselves; and (2) the duty to perform these obligations in good faith." While "good
faith" is generally taken to entail honesty and fair-dealing between the parties concerned, such as
truthfully representing their motives and abstaining from taking unfair advantage of an
unintended interpretation of any agreement they come to. Although the provision does not
expressly refer to good faith, these underlying principles are reflected by Article 18 of the VCLT,
which provides that prior to a treaty's ratification, a signatory must "refrain from acts which
would defeat the object and purpose." Despite the binding nature of treaty obligations, there are
circumstances in which a party can legally terminate or suspend the operation of a treaty. Where
there is a material breach by one party, where a supervening act renders performance impossible
(force majeure), or where there is a fundamental change of circumstances which was not
foreseen at the time of the treaty's, a party may terminate or suspend a treaty. 3Further analysis
would reveal different concepts.

RESEARCH OBJECTIVES

1 JAMES CRAWFORD, BROWNLIE'S PRINCIPLES OF INTERNATIONAL LAW 450 (2013)

2 Daniel Davison-Vecchione, Beyond The Forms Of Faith: Pacta Sunt Servanda And Loyalty, German Law Journal,
(2015)

3 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in
Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), U.N. Doc. A/RES/25/2625, 1 (Oct.
24, 1970).

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To study the Principle of Pacta Sunt Servanda

To study the origin and emergence of the principle
To study the relationship between good faith and the principle
To study the codification of the Principle

REVIEW OF THE LITERATURE

The following books and articles have been used in the project report.
Malcolm N. Shaw, International Law, 5th edition, Cambridge University Press, reprinted
2007: The present book includes the sources of international law which further has the
general principles of law as a source which includes the principle of Pacta Sunt Servanda,
or the idea that international agreements should be kept.
Reinhard Zimmermann, The Law Of Obligations: The Roman Foundation Of Civilian
Traditions, 1st edition, Oxford University Press 1996.: It provides for the history and the
origin of the principle of Pacta Sunt Servanda, the roman foundation to the principle and
comparison with the present authoritativeness of International Law.
Christina Binder, The Pacta Sunt Servanda Rule in the Vienna Convention on the Law of
Treaties: a Pillar and Its Safeguards, 2008. : the book provides for the codification of the
principle to increase its authoritative value. Also the exceptions to Article 26 and the
relationship between good faith and the principle.
Hans Wehberg, Pacta Sunt Servanda, The American Journal Of International Law,
Volume 53, (1959). This article talks about how international law developed in Ancient
times in China and Egypt and the ancient Rome and then followed by renaissance and
other periods and the development of the Principle in International Law.
W. Paul Gormley, The Codification Of Pacta Sunt Servanda The International Law
Commission: The Preservation Of Classical Norms Of Moral Force And Good Faith,
Saint Louis University Law Journal,Volume 14, (1970): It follows that pacta sunt
servanda must be accorded the primary position in the hierarchy of treaty law principles,
in much the same fashion as in traditional law, even as to areas not covered by the present
Draft Convention. Further the shortcomings of the codification of the principle.

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Daniel Davison-Vecchione, Beyond the Forms of Faith: Pacta Sunt Servanda and
Loyalty, German Law Journal, (2015): It includes various case laws which show the
development of Pacta Sunt Servanda in International law and the legal enforceability of
the principle.

RESEARCH METHODOLGY

This project report is based on descriptive research methodology. The research problem has been
provided by our faculty keeping in view the needs of the topic. Secondary and electronic
resources have been largely used to gather information and data about the topic. Books and other
references have been primarily helpful in giving this project a firm structure. Websites,
dictionaries and articles have also been referred.

SOURCES OF DATA
The information has been received from various secondary sources.
Books
Articles
Journals
Websites

RESEARCH QUESTIONS

What is the validity of the Principle Pacta Sunt Servanda Applicable in International law?
How the principle originated and its development?
How is the principle Pacta Sunt Servanda affected by the its codification in the
International law commission?

HYPOTHESIS

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The Principle of Pacta Sunt Servanda is binding on the subject matter of International law.

SCOPE AND LIMITATION OF THE STUDY

The project report includes the concept and the origin of the principle Pacta Sunt Servanda. It
further includes relationship between concept of good faith and the principle and inclusion of the
principle in the draft convention of the Vienna conference on the law of treaties.

Chapter 2

ORIGIN OF PACTA SUNT SERVANDA

In ancient times, this principle was developed in the East by the Chaldeans, the Egyptians and
the Chinese in a noteworthy way. According to the view of these peoples, the national gods of
each party took part in the formation of the contract. The gods were, so to speak, the guarantors
of the contract and they threatened to intervene against the party guilty of a breach of contract.
So it came to be that the making of a contract was bound up in solemn religious formulas 4 and

4 BARON MICHEL DE TAUBE, "L'INVIOLABILIT6 DES TRAIT6S" 32 Hague Academy Recueil des Cours 299 ,(1930).

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that a cult of contracts actually developed. 5 For the Islamic peoples, the principle, Pacta sunt
servanda, has also a religious basis: "Muslims must abide by their stipulations." 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."

The Renaissance and the Reformation followed. The idea of the "Reason of State" was a basic
one in the theories of Machiavelli (1469-1527). It is true that he adhered unreservedly to the
"general value of religion, morality and law." 6 Nevertheless his political thought was influenced
by the idea of necessity. He asserted that the Prince could put himself above law and justice,
should this be necessary for the state. To be sure, Machiavelli said that the Prince ought, if he
could, to follow the paths of goodness; but he was justified in doing wrong in cases of necessity.
In order to protect the interests of the state, explained Machiavelli, the Prince must be ready to
act "against loyalty, against charity, against humanity and against religion." It is certain, however,
that Machiavelli's views were helpful to those who admitted exceptions to the sanctity of
contracts. Thomas Aquinas (1225-1274), who on principle demanded that contracts be performed
even with regard to enemies, had also said that, if the circumstances existing in reference to
persons or objects at the time of making the contract had changed, non-performance of the
contract were excusable.7 It is in this way that the doctrine of claitsula rebuts sic stantibus
developed. According to the majority of writers, this doctrine is regarded as justified today,
however, only when the circumstances existing at the time of entering into contract have changed
to such an extent that either contracting party has the right to demand the revision of the
contract-a right which must be exercised in good faith. On the other hand, a unilateral right of
termination or alteration does not exist. This is why Grotius found it advisable to argue, against
Bodin's view, that "the King himself cannot reverse a position previously established in the civil

5 ROBERT REDSLOB, HISTOIRE DES GRANDS PRINCIPES DU DROIT des Gens 107 (Paris, 1923).

6 FRIEDRIEH MEINECKE, DIE IDEE DER STAATSRASON (Munich- Berlin, 1924

7 Daniel Davison-Vecchione, Beyond the Forms of Faith: Pacta Sunt Servanda and Loyalty, 16 German Law
Journal, 1164-1190 (2015).

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law or annul a contract or release himself from his oath," if he has made it as head of state. 8
These remarks show that Bodin's doctrine has scarcely been disadvantageous to international law
and in particular to the sanctity of contracts. Unlike Hegel's theory in the 19th century, that of
Bodin did not misguide the science of international law. Already Franciscus Vitoria (1483-1546),
9
and Francisco Suarez (1548-1617),16 among other predecessors of Grotius, had laid much
stress on the sanctity of contracts.

In the age of Napoleon also the science of international law remained true to this principle. A
valid and binding contract creates, for nations and individuals alike, the complete right to
demand from the other party the performance of the contract, so long as the contracting party, on
his side, has performed satisfactorily his obligations.

LAW AS THE WILL OF THE NATION

In the succeeding years the German philosopher, Georg Friedrich Wilhelm Hegel (1770-1831),
exercised a strong influence on the thinking of the 19th century on international law. For him the
law was a product of the will. The will of the nation was the carrier of the law. Contracts could
be valid only so long as they contributed to the welfare of the state. Writers on international law
could not for long fail to perceive that international law was being undermined, if one based
contracts on the will of the state. They therefore tried to find a basis which would leave unaltered
the principle of sanctity of contracts, in spite of a continued adherence to the will of the state as a
foundation of international law. It is, however, clear that the state, if its will is decisive in the last
analysis, can release itself from a self-imposed obligation. If there is no higher will which
compels the state to keep its word, then there is no sufficient basis given to the contract which
obligates the state to observe it. For this reason, the theory of Jellinek is generally rejected today,
and rightly so. Later on, the theory was abandoned that the validity of contracts, and of
international law in general, rested on the national will of one or all of the contracting parties.
Another basis was sought for the principle Pacta sunt servanda. It is clear, however, that this
cannot explain the validity of customary law. Above all, the validity of contracts cannot rest upon
8 HUGO GROTIUS, DE JURE BELLI AC PACIS, Liber II, cap. 14, No. 1.

9 VITORIA, DE POTESTATE CIVILI, 21; Ernst Reibstein, Vblkerrecht, Vol. I, p. 287.

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a mere postulate. Anzilotti's attempt shows, however, the great value attached by this prominent
author and his followers to the principle of Pacta sunt servanda as an integral part of international
law.

VALIDITY OF THE PRINCIPLE AT PRESENT

If a contract, validly concluded, were not binding, then international law would be deprived of a
decisive foundation and a society of states would no longer be possible. International law, and
with it also the sanctity of contracts, results by a natural necessity from the inevitability of social
intercourse. The binding force of contracts is an obligation which exists, not only vis-a-vis the
contracting parties, but also vis-a-vis the international community as a whole. In the system of
international law, which stands over states, the sanctity of contracts is not to be rationalized
away.10
It is important to ascertain, however, upon what legal sources the maxim Pacta Sunt Servanda
rests, according to the international law now in force. For those who believe that the "general
principles of law" form a third source of international law, which is not limited to the
jurisdictional system of the International Court of Justice in The Hague, the principle of the
sanctity of contracts is such a general legal principle.
Without the powerful instrument of the contract, no international law is possible. This principle
is, however, also a part of customary law. Certainly, the phrase Pacta Sunt Servanda, in the first
instance, had a religious origin, with time, however, it was integrated into international law, and
it can now be described as a part of customary law.
No one will deny that many breaches of contract have taken place in the course of history. The
fact that, in spite of this, the principle of the sanctity of international contracts preserved its
validity is indeed remarkable. Its breach has always been regarded as a wrong which entitles the
wronged party to demand compensation. It must be admitted, in this connection, that the
reparation can only be viewed as an incomplete compensation for the wrong. For the moral
wrong in a breach of contract is so immense that the material amends cannot possibly give the
wronged party a true reparation. Numerous declarations have been made by statesmen, in the

10 Daniel Davison-Vecchione, Beyond the Forms of Faith: Pacta Sunt Servanda and Loyalty, 16 German Law
Journal,1176, 1164-1190 (2015).

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course of centuries, to emphasize the obligation to observe the sanctity of contracts. We shall
content ourselves here with mentioning two examples:

Lord Russell, British Foreign Minister, in a dispatch dated December 23, 1860, to the British
Ambassador in China, Earl James Bruce Elgin, said that the universal notions of justice and
humanity teach even the worst barbarians among human beings, that, if an agreement has been
made, the law demands its observance.
Further, one can read in a communiqu of the Atlantic Council of December 16, 1958, in
response to the Russian withdrawal from the provisions of the Inter-Allied Agreement on Berlin,
that no State has the right, by itself, to free itself unilaterally from its contractual obligations. The
Council declares that such a procedure destroys the mutual trust between nations which
represents one of the foundations of peace. Moreover, the treaties which emphasize especially
the sanctity of contracts are extraordinarily numerous. Here, also, a few examples will suffice.
The preamble of the Covenant of the League of Nations characterizes as an important
fundamental principle, in order to promote international co-operation and to achieve international
peace and security, the rule of "scrupulous respect for all treaty obligations in the dealings of
organized peoples with one another." In the preamble of the Charter of the United Nations one
finds likewise, respect for the obligations arising from treaties and other sources of international
law." Not less important is the reference in Article 5 of the Charter of the Organization of
American States that international order is based, among other things, on the faithful fulfillment
of the obligations arising from treaties and from other sources of international law. Thus, it is
easily understandable that no arbitral tribunal has ever rejected the rule Pacta sunt servanda, or
even thrown doubt on it. On the other hand, cases are numerous 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 in 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 it11.

11 Translated from La Fontaine, Pasicrisie Internationale 165 (Bern, 1902)

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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.12

In the Newfoundland controversy between the United States 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.
In its first Advisory Opinion on July 31, 1922, on the designation of the workers' delegate to
the International Labor Conference, the Permanent Court of International Justice
emphasized that a contractual obligation was not merely "a mere moral obligation" but was an
"obligation by which, in law, the parties to the treaty are bound to one another."
.
Chapter 3

THE RELATIONSHIP BETWEEN GOOD FAITH AND PACTA SUNT SERVANDA

Good faith is consecrated in the law of treaties within article 26 of the VCLT, which is entitled
Pacta Sunt Servanda. It states that 'every treaty in force is binding upon the parties to it and must
be performed by them in good faith.'13
The relationship between Pacta Sunt Servanda and good faith is rarely clearly explained,
however, the principles are often placed on the same plan of generality. The rule Pacta Sunt
Servanda, which has constituted 'since times immemorial the axiom, postulate and categorical
imperative of the science of international law', is generally understood as meaning that valid
treaties are binding on the parties to them; in other words, it is a command to execute an

12 Moore, History and Digest of the International Arbitrations to which the United States Has Been a Party 1807,
1849-1850 (Washington, 1898).

13 Article 26

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obligation, but does not actually determine the contents of that obligation. 14 It is a positivist rule
with a specific application in the conventional domain, requiring that validly created norms are
obeyed, as long as no norm-abolishing fact has occurred. Where other norms intervene, however,
such as impossibility of performance rendering an engagement useless, or a fundamental change
of circumstances, the principle of Pacta Sunt Servanda yields and the treaty-created norms in
question become subject to a different regime.

Good faith, on the other hand, has a broader, but more removed role. It serves to delimit the
contents of the obligation, to correct defects of will or formality where fairness demands it, and
to enlarge the domain of obligatory acts in international law.15 Good faith is the over-arching and
reconciling principle of law that founds and legitimizes other rules including Pacta Sunt
Servanda. It is possible to imagine the intervention of good faith to reconcile a collision of norms
such as Pacta Sunt Servanda and rebus sic stantibus, or to apply article 18 of the VCLT and
decide whether or not a party's behaviour was intended to defeat the object and purpose of a
treaty. The obligatory nature of an international engagement can thus be seen to gain its binding
force from Pacta Sunt Servanda, which can be conceptualised as a specific enunciation of the
application of good faith in the domain of international legal acts, with a fundamental importance
of its own, but with its basis in the over-arching principle of good faith. Good faith has been
determined to be the ultimate legal basis of not only the conventional but also the unilateral act,
the question of whether its more specific application in the form of Pacta Sunt Servanda is
similarly applicable to both has produced dissent. Some states and commentators have expressed
the belief that the principle relates strictly to obligations created by Pacta and that it is thus
inapplicable to unilateral acts.16 The importance of the principle Pacta Sunt Servanda has been
recognized in doctrine in no uncertain terms: having been described by Anzilotti as 'the basic
norm from which the weighty chandelier of the law of nations is supposed to be safely

14 Daniel Davison-Vecchione, Beyond the Forms of Faith: Pacta Sunt Servanda and Loyalty, 16 German Law
Journal, 1186, 1164-1190 (2015).

15 M DE TAUBE, 'L'INVIOLABILITD 295 (1930)

16 J KUNZ, 'THE MEANING AND RANGE OF THE NORM PACTA SUNT SERVANDA' (1945)

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suspended'. It is the basic principle of the law of treaties, ensuring that every treaty is binding on
the parties to it, and must be performed in good faith.

To ensure reliability and predictability

Such a principle is equally necessary to ensure reliability and predictability in all forms of
conduct of states, and thus it is suggested that the meaning of the term pactum should be
extended in today's international law to apply not only to bilateral and multilateral agreements
freely arrived at, but also to unilateral acts of a legal nature. If this norm, according to which
engagements must be respected, is key to international legal relations, then to consider
conventional agreements obligatory because they are founded on the will of two or more states,
while refusing to ascribe the same value to unilateral acts because the will is not met by another
will, is a rigid and formalistic approach that does away with the very aim of regulation.

In both Nicaragua v. Hondurass and Cameroon v. Nigeria (Preliminary Objections), 17 the

ICJ confirmed that good faith "is not in itself a source of obligation where none would otherwise
exist." In other words, the duty only arises within a state's existing obligations. Despite this
approach regarding good faith, there have been occasions in which international courts have
adopted a noticeably expansive interpretation of the concept. 18 In proceedings brought by New
Zealand and Australia against France (the Nuclear Tests cases) for atmospheric nuclear tests
conducted by France in the South Pacific, the ICJ found statements made by France that it would
no longer conduct nuclear tests of this kind after the 1974 tests to be legally binding, as France's
undertaking was subject to the principle of good faith.'19 A communiqu issued by the Office of
the President of the French Republic, a speech in the UN General Assembly, and a letter from the
French President to the Prime Minister of New Zealand contained the statements used in making

17 North Sea Continental Shelf (Ger. v. Den. & Neth.), 1969 I.C.J. 3, 30 (Feb. 20); Land and Maritime
BoundaryBetween Cameroon and Nigeria, Preliminary Objections (Cameroon v. Nigeria), 1998 I.C.J. 275, 57.

18 Daniel Davison-Vecchione, Beyond the Forms of Faith: Pacta Sunt Servanda and Loyalty, 16 German Law
Journal, 1174, 1164-1190 (2015).

19 The relevant extracts from these statements are included and discussed in N.Z. v. Fr., 1974 1.C.J. 35-44.

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its judgment. They concluded that 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.20
The Nuclear Tests cases demonstrate how an international court may extend good faith "to
governmental statements which were considered retractable and not (capable of) giving rise to
binding commitments," despite the aforementioned understanding that good faith is not an
independent source of obligations. It is true that good faith applies to international obligations in
general, rather than treaties alone. Nevertheless, as observed by Rubin, even if one were to
assume that a unilateral declaration was able to give rise to a legal obligation, in the absence of
another state being misled by the statement or believing it to create a direct obligation, "no
significant question of good faith would seem to arise."21

Chapter 4

THE CODIFICATION OF PACTA SUNT SERVANDA BY THE INTERNATIONAL LAW

COMMISSION

At the First Vienna Conference on the Law of Treaties, held from March 26th to May 4th 1968, the
main battle-ground, surprisingly, was the traditionally accepted norm of Pacta Sunt Servanda. A
similar dispute of equal intensity arose at the Second Vienna Conference, which was in session
from April 9 to May 22, 1969. This controversy (along with the issue of disputes settlement)
came close to preventing the adoption of the final Draft Convention on the Law of Treaties 22. It
seems strange that ideals drawn from classical inter- national law, such as good faith, the sacred
obligation of the treaty, and the very fundamental notion of Roman Law expressed by Cicero:
States must keep their word. But the attempt by the International Law Commission over a period
of sixteen years to codify this classical norm in the simplest possible language so seriously split
the two UN conferences that there was a strong possibility the final Plenary Session in May 1969
20 Austl. v. Fr., 1974 1.C.J. 46

21 Alfred P. Rubin, The International Legal Effects of Unilateral Declarations, 71 AM. J. INT'L L. 1, 10-
11 (1977).

22 W. Paul Gormley, The Codification Of Pacta Sunt Servanda The International Law Commission: The
Preservation Of Classical Norms Of Moral Force And Good Faith, Saint Louis University Law Journal,Volume 14,
(1970)

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might not be able to muster the two-thirds vote required to adopt the Draft Convention. 23 In
conceding the inherent weaknesses in the final codification, it must be recognized that the Draft
Convention, opened for signature on May 23, 1969, is the result not only of an extremely bitter
fight but also of skillful and, indeed, last-minute compromise. Hopefully, the United States will
set an example for the rest of the world by ratifying the Draft Convention, even though the moral
force exerted by Pacta Sunt Servanda has been weakened. The exceptions to Pacta Sunt Servanda
contained in Part Five of the Convention have minimized the "absolute binding force" of treaties.
Regrettably, no alternative was available to the delegates at the 1969 Vienna Conference because
their primary desire as had been true of the members of the International Law Commission and
the Sixth Committee of the UN General Assembly) was to produce a codification on the law of
treaties acceptable to all of the diverse legal systems comprising the world community. In light of
the changes taking place within international law, Pacta Sunt Servanda must be viewed against a
much broader background than merely the series of treaty texts prepared by the International
Law Commission and the Vienna conferences.24
Pacta Sunt Servanda, which emerged as Article 26 of the draft convention, remains essentially
the same as originally formulated in the ILC's Draft Article 23: "Every treaty in force is binding
upon the parties to it and must be performed by them in good faith." Thus, Article 26 (along with
Article 27 prohibiting the defense of internal law, considered subsequently) has been preserved,
though admittedly with some new qualifications, as the fundamental principle of international
law on which all other treaty norms depend! Moreover, it still serves as the very foundation of
the expanding World Rule of Law so desperately sought by both regional and global
organizations."
Regardless of the theory chosen essential agreement has been reached on the basic norm: the
fundamental nature of Pacta Sunt Servanda to the entire corpus of international law. At least as a
basis for the work of the International Law Commission-which body was assigned the task of
codifying existing international law by the UN General Assembly and, of even greater
significance, of developing international law Pacta Sunt Servanda can be deemed a foundation

23 Supra 22.

24 Codification the Principle of the Pact Sunt Servanda

<http://www.scirp.org/journal/PaperDownload.aspx?paperID=8285>last accessed on 14-02-2016.

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upon which the enforcement of treaties can also be based. Yet it must be asked whether or not the
ILC, in its Draft Article 23 codified or developed the rule of Pacta Sunt Servanda. The simple
text of Article 23-presently Article 26 of the Draft Convention-merely reads:
"Every treaty in force is binding upon the parties to it and must be performed by them in good
faith. This supports the conclusion that codification took place, not development. Therefore, the
traditional norm must be reexamined as a basis for understanding the codified rule. While Article
26 (and 27) will replace custom, no treaty text is so all-inclusive that it can completely divorce
itself from its historical roots and the general principles of international law. Moreover, the
present Draft Convention is not intended to cover the entire realm of international agreements;
hence, as will be shown below, customary law will influence the interpretation of Article 26.
Conversely, Article 27, by removing the defense of domestic law, has not only clarified
traditional international law but also further developed it.25
The developing "world rule of law," then, must be built upon general principles of law
recognized by civilized nations as part of a Universal Legal Order. One amendment which did
eventually succeed in being adopted is Article 23 is which was reexamined at the second
conference and accepted without change, thereby becoming Article 27. Although Article 27,
which states that "no party may invoke the provisions of its internal law as justification for its
failure to perform a treaty," actually strengthens Pacta Sunt Servanda, it is essential that the
moral principle from classical law be enunciated as simply and directly as possible without
qualification. 26
Admittedly, any discussion of the numerous exceptions from classical law, plus those added at
the Vienna conferences, especially "valid treaty" in Article 42, tends to weaken the absolute
integrity of the pactum. The Common Law methodology arising from the case method would
consider Pacta Sunt Servanda a principle of law, and the other topics as exceptions to the general
rule. Consequently, it is submitted, exceptions do not invalidate the authority of the basic rule

25 Codification of the Principle of Pacta Sunt Servanda

<http://www.scirp.org/journal/PaperDownload.aspx?paperID=8285>last accessed on 14-02-2016.

26 Daniel Davison-Vecchione, Beyond the Forms of Faith: Pacta Sunt Servanda and Loyalty, 16 German Law
Journal, 1164-1190 (2015).

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until such time as they become so numerous as to destroy the said norm. Exceptions to Pacta
Sunt Servanda are as follows:
1) If force or duress is used against the negotiators or the state itself, now covered by Articles 51
and 52;
2) If an illegal treaty is sought to be enforced (Part V);
3) If error is found to be present, now included in Article 48;
4) In those instances where fraud has been evident (Article 49);
5) if a peremptory norm of general international law is violated, as dealt with by Articles 53, 64,\
71;
6) If a violation of the UN Charter, as to those areas involving the use of force, as prohibited by
Article 52 is found to exist;
7) If a treaty violating a higher commitment to a specialized agency, such as ILO is jus cogens
and, secondly, if treaties violate the Statute of the Council of Europe or the Establishing Treaty of
the European Economic Community (under EEC Treaty Article 5) an exception would exist;
8) If, as some modern authorities contend, unjust treaties exist;
9) If a void treaty, void ab initio, would in fact be held not to exist at all;
10) If a formerly valid treaty, proper when entered into, was deemed no longer in force;
11) If a treaty still technically in force but no longer valid were sought to be enforced;
12) If rebus sic stantibus could be applied (Article 62); or
13) If jus cogens (Articles 53 or 64) outranked the negotiated pactum.27
However, all that is being attempted in this section is to show that Pacta Sunt Servanda must be
evaluated in the light of clearly recognized exceptions and competing legal principles and that
secondly, even in classical law the norm was not always absolute, as was the Common Law
notion of writ of Covenant, in which the presence of the seal controlled. As one trained in the
Common Law will quickly concede, there are always exceptions to legal rules, provided the
proper fact situation arises.
The further exceptions to Pacta Sunt Servanda are set forth in a series of articles: Article 46,
"Provisions of internal law regarding competence to conclude treaties"; Article 47, "Specific
restrictions on authority to express the consent of a State"; Article 48, "Error"; Article 49,

27 Article 42

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"Fraud"; Article 50, "Corruption of a representative of a State"; Article 51, "Coercion of a

representative of a State"; Article 52, "Coercion of a State by the threat or use of force"; and
Article 53, "Treaties conflicting with a peremptory norm." Of this series of articles (each of
which is worthy of a separate study, and which will be the subject of much future litigation)
remarks here will be limited to Articles 51 and 52coercion.

CONCLUSION

In the project report the rule of Pacta Sunt Servanda as a general principle of law that is found in
all nations has been discussed in detail. It follows, therefore, that the principle is valid exactly in
the same manner, whether it is in respect of contracts between states. The hypothesis of the study

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LAW

is correct because the principle Pacta Sunt Servanda is binding on the countries those have
entered into a treaty with one another. Whether one regards, the contracts of a state -with a
foreign company for the purpose of granting a concession as being quasi-international law
agreements, or whether one ascribes to them another character, the principle of the sanctity of
contracts must always be applied. As has been pointed above, the principle of sanctity of
contracts is an essential condition of the life of any social community. In ancient times, this
principle was developed in the East by the Chaldeans, the Egyptians and the Chinese in a
noteworthy way. According to the view of these peoples, the national gods of each party took
part in the formation of the contract. The life of the international community is based not only on
relations between states, but also, to an ever-increasing degree, on relations between states and
foreign corporations or foreign individuals. No economic relations between states can exist
without the principle Pacta Sunt Servanda. This has never been disputed in practice. The best
proof that the principle also applies in such a case is the following fact: it has long been
suggested that disputes between states and foreign companies (or foreign individuals) should be
submitted to international adjudication. Such a course would be meaningless if the principle
Pacta Sunt Servanda were not applicable also to that kind of relations. How would it be possible
to suggest the creation of such an International Court of Justice if contracts between a state and a
foreign company were not binding? The project report further provides for a relationship
between good faith and Pacta Sunt Servanda and it is concluded that good faith is the essence of
the principle and the basis of International Agreements. The codification of the principle has
further strengthened the authority of the principle. The conclusion is thus inescapable that in each
case, such contracts are subject to the general principle of law: Pacta sunt servanda.

BIBLIOGRAPHY

BOOKS
MALCOLM N. SHAW, INTERNATIONAL LAW, 5 TH EDITION, Cambridge University Press,
(2007)
REINHARD ZIMMERMANN, THE LAW OF OBLIGATIONS: THE ROMAN FOUNDATION OF
CIVILIAN TRADITIONS, 1ST EDITION, Oxford University Press (1996).

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CHRISTINA BINDER, THE PACTA SUNT SERVANDA RULE IN THE VIENNA CONVENTION ON
THE LAW OF TREATIES: A PILLAR AND ITS SAFEGUARDS, (2008)

ARTICLES
Hans Wehberg, Pacta Sunt Servanda, The American Journal Of International Law,
Volume 53, (1959).
W. Paul Gormley, The Codification Of Pacta Sunt Servanda The International Law
Commission: The Preservation Of Classical Norms Of Moral Force And Good Faith,
Saint Louis University Law Journal,Volume 14, (1970)
Daniel Davison-Vecchione, Beyond the Forms of Faith: Pacta Sunt Servanda and
Loyalty, German Law Journal, (2015)

WEBSITES
www.judicialmonitor.org
www.papers.ssrn.com
www.suoodanwar.com
www.heinonline.org
www.encyclopedia.com
www.trans-lex.org
www.definitions.uslegal.com
www.legal.un.org
www.britannica.com
www.opil.ouplaw.com

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