Author – Hemavathy. P, Student at Chennai Dr Ambedkar Government Law College, Pudhupakkam.
PACTA SUNT SERVANDA
INTRODUCTION:
Pacts sunt servanda is one of the most important principles in international law which says that international treaties should be upheld by all the signatories. This rule is based upon the principle of good faith. The basis of good faith indicates that a party to the treaty cannot invoke provisions of its domestic law as a justification for a failure to perform. The only limit to pacta sunt servanda is the peremptory norms of general international law known as “jus cogens” which means compelling law.
ORIGIN:
Latin
MEANING:
Agreements must be kept[1] / Promises must be kept
EXPLANATION:
It is present in both Civil law and international law. In international law, it means that every treaty is binding upon the parties and they must be executed in good faith. Good faith is a sincere intention to carry out obligations without malice. The parties under this treaty must fulfil their promises and obligations to the best of their abilities. Article 26 of the VCLT states, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
APPLICATION:
It is arguably the oldest principle of international law. Without such a rule, no international agreement would be binding or enforceable. Law embodies an important principle of the General Principles of Law. The General Principles of Law are the source of international law. The principles of Pacta Sunt Servanda are also embodied in the Permanent Court of Justice and the International Court of Justice.
As for the United Nations, it is believed that all member states are “civilized” and are expected to follow the principles of the Pacta Sunt Servanda when dealing with obligations, agreements and promises. This bears in mind that the parties to these international treaties and agreements have already agreed to each other since international law is a consent-based system.
Pacta sunt servanda is directly referred to in many international agreements governing treaties, including the Vienna Convention on the Law of Treaties (1969)[2], which concerns treaties between states, and the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations (1986).
CASELAW:
The court in the Nuclear Test Court (Australia v.France [3]) based on the doctrine of Pacta Sunt Servanda (i.e., must keep promises) held that trust is inherent in international cooperation, especially at a time when cooperation in many fields is becoming more and more essential.
Just as the Pacta Sunt Servanda, rule in treaty law is based on good faith, so is the binding nature of an international obligation assumed by a unilateral declaration. Consequently, the States concerned may be aware of the unilateral statements and believe them and have the right to demand that the obligation thus created be respected.
CONCLUSION: I conclude this article by saying, good faith element of this principle suggests that states should take the necessary steps to comply with the object and purpose of the treaty. States may not invoke restrictions imposed by domestic law as good reason for not complying with their treaty obligations provided the instrument was duly ratified by competent authorities and in accordance with constitutional and statutory requirements.
[1] Black’s Law Dictionary (8th ed. 2004)
[2] Vienna Convention on the Law of Treaties (1969)
[3] [1974] ICJ Rep 253.