A Study of the Principle of Pacta Sunt Servanda under International Law

This article involves a study of the Principle of Pacta Sunt Servanda under International Law. Pacta Sunt Servanda is an essential concept under the Public International Law that deals with relations between two or more nations. This article focuses on the meaning and concept of the principle of Pacta Sunt Servanda, its relevance today and the exceptions to this rule.

Introduction

The principle of Pacta Sunt Servanda regulates the relationship between two or more countries that enter into an agreement. Before we understand the meaning and concept of Pacta Sunt Servanda, let us understand what is an agreement, a contract and what do you mean by consensus ad idem.

According to the Indian Contract Act, 1872, two reciprocal promises made by two persons to each other to do or not to do any act is an agreement. Hence, when A says it will purchase a car from B and B promises to pay Rs. 5 lakhs for that, it is an agreement.

Now, when an agreement is enforceable by law, it becomes a contract. In a nutshell, when the agreement is to do or not to do, an act which legally allowed or legally not allowed, as the case may be, it is a contract. So, an agreement between a police officer and a common man that the police will not perform its duty mandated by law is an agreement but not a contract. Lastly, when two persons agree to something under the same understanding and without any miscommunication, it is called consensus ad idem.

I. Meaning of the Principle

The meaning of this Latin phrase is ‘agreements must survive or agreements are binding’. In the above illustrations replace two persons A and B with two countries X and Y. In the case of Pacta Sunt Servanda, two countries make reciprocal promises to each other and enter into an agreement to do or not to do an act, for the betterment of their respective nation and its people.

This agreement in common parlance is called a treaty. According to the principle of Pacta Sunt Servanda, when a treaty has been framed and terms have been agreed by both the parties, it shall be binding upon both of them.

One country which deviates from its treaty obligations will be violating the principle of Pacta Sunt Servanda and hence, liable under international law. It needs to be noted that the concept of ‘treaties’ under International law is a new concept and has replaced the earlier customary law, but the principle existed from forever. The origin and need of this principle can be traced down to customary international law.

II. Origin of the Principle

As mentioned above, consent is an essential ingredient of a contract, and that applies to international law as well. Nevertheless, what if a State (a nation is called State in International law) decides to withdraw its consent after the treaty has been signed? When a State decides that a treaty is no longer beneficial for it, can it deviate from its obligations and claim that there is no consent?

This situation clearly shows that the principle of Pacta Sunt Servanda is not based on the concept of consent. It simply states that when a State party to a treaty deviates from its obligations or fails to fulfil the same, it is in breach of such treaty and hence, the international law. However, when we talk about the origin of this principle, international law does not mean the modern and developed form of legal framework but the law as it existed in ancient times.

According to H.L.A. Hart, a British Philosopher, international law is the form of a social structure comprising of its set of conditions and morals that guide the States. To be precise, consider a common Indian society that has its own rules and regulations guiding them and in the absence of any concrete legal framework, that rule serves the purpose.

For instance, until the laws for the protection of the environment came into place, society protected the environment as nature worshippers. Similarly, according to Hart, the world is like society and international laws are a set of primary rules and guidelines to be followed in the absence of centralised legislation.

Pacta Sunt Servanda, according to Hart, is one such rule that regulates the relation between States and ensures that they do not harm each other in the garb of power or authority.

There are two types of treaties, viz. “law-making treaties” and “treaty contracts”. Generally speaking, law-making treaties are framed and ratified by a large number of States universally to form a binding law of international nature. For instance, TRIPS or all environment protection treaties are law-making treaties because they have a general application on all the States that sign and ratify the treaty.

On the contrary, a contract treaty is entered between two or more (but small number) States to comply with certain rules that affect their relationship with each other. For example, India has friendship treaties with Bhutan or a treaty with Nepal, a landlocked state to provide them access to Indian waters (seas and oceans).

Now, the distinction has been explained to explain the nature of these treaties and the obligation they impose. It is crystal clear that the perfunctory nature of a treaty and whether a State will follow a treaty or not is based completely on the principle of good faith.

As was observed in the 1974 case called Nuclear Tests Case[1] by the ICJ, “trust and confidence” between two States is essential for international cooperation. The court stated that the principle of Pacta Sunt Servanda originates from the concept of good faith, that the States will always follow international norms in good faith without any ill or malicious intentions.

Relevance of Pacta Sunt Servanda

In the present day, one of the most important sources of all international laws is treaties. When a treaty is entered upon between two or more States, it constitutes diplomatic relations and gives rise to several changes in the domestic laws as well.

For instance, when India signed and ratified the TRIPS agreement (Trade-related Aspects of Intellectual Property Rights) which required many changes by the year 2005, the Copyright Act, Trademark Act and other IPR laws were amended in 2005 to make them in consonance with the provisions of the TRIPS agreement.

This obligatory or binding nature of a treaty is derived from the principle of Pacta Sunt Servanda. Hence, the most relevant part of the principle is that it makes treaties obligatory and mandatory to follow and not just an agreement on a paper.

Limitations and Exceptions of Pacta Sunt Servanda

Let us imagine the recent Indio-china conflict to understand this part of the article. According to the treaties and agreements between India and China, India is obliged to trade with China for certain products and the Indian government cannot restrict people from purchasing or selling Chinese products.

However, as observed recently, when another country threatens with a war or war-like situation, does the principle of Pacta Sunt Servanda still applies? If the principle is applicable in such a scenario as well, is there any instance when the treaty obligations take a side step and sovereignty comes into place?

These questions have been raised and deliberated upon, several times in the history of International law. It is said that it is the inherent nature of a treaty to freeze a law from the moment it is adopted or ratified. For example, in the example of TRIPS above, when India signed and ratified the TRIPS, the IPR laws in India came to a freezing point until they resonated with what was stated in the treaty.

This nature is completely different from the customary international laws which keep on living without freezing the law. Hence, in changed circumstances, it may be possible for states to detract from their treaty obligations or event and an International organization can even declare a treaty as inapplicable.

In the Fisheries jurisdiction case[2], the ICJ judge Nervo observed that several treaties are formulated under political and diplomatic pressures and such pressures cannot be proved by documentary evidence. Any treaty violated in such circumstances, may not allow any cause of action for the plaintiff.

An accurate example of such a circumstance would be the Covenant of the League of Nations. According to Article 19 of the covenant, the league was empowered to declare any treaty as invalid and inapplicable if it affected or threatened the peace of the world. In such cases, the principle of Pacta Sunt Servanda is inapplicable.

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References

1. Malcolm N. Shaw, International Law, 6^th 2008.
2. Binder, The Limits of Pacta Sunt Servanda in International Law, 2013.

[1] Australia v. France (Nuclear Tests Case), ICJ Reports, 1974, p. 253.

[2] United Kingdom & Germany v. Iceland (Fisheries jurisdiction case), ICJ Reports 1973, p. 3.

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1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
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