Doctrine of Pacta Sunt Servanda: An Analysis under International Law

Md Rafiqul Islam Hossaini, Kaniz Fatema Nisu

Abstract


The doctrine of Pacta Sunt Servanda came from a Latin phrase which means “treaties shall be complied with.” When a contract is formed in domestic or international level or it is formed between individual states or among sovereign states; it is formed with the intention that the provisions of the contract will be complied with by the states. Over the centuries, states have recognized Pacta Sunt Servanda as a significant principle of international law. Like Pacta Sunt Servanda, very few principles have such deep moral and religious sanctity. The principle of Pacta Sunt Servanda had religious basis not only for the Muslims but also for the Romans and Christians. In respect of international agreements, Pacta Sunt Servanda is significantly linked with good faith requirement though it is not equated with good faith. Accordingly, this principle only imposes an obligation on the respective states to show respect to the provisions of the treaties or contracts. The only restriction in the principle of Pacta Sunt Servanda is the general principle of international law called jus cogens (Compelling law), where the principle of customary international law called clausula rebus sic stantibus also allows the treaty obligations to be unfulfilled due to a changing circumstance. In the history of international law, the debate of stability and change plays a significant role as a limit of Pacta Sunt Servanda. The doctrine of Pacta Sunt Servanda encounters several limitations, for instances: (1) force majeure (Article 23 of ILC), (2) significant change in circumstances (Article 62 of VCLT), (3) necessity or obsolescence (Article 25 of ILC), and (4) impossibility of performance for supervening event (Article 61 of VCLT). Sanctity of contract is an integral part of a social community because society is vastly relied on the law of contract rather than customary rules and regulations. Without following the principle of Pacta Sunt Servanda, no international contract or treaty of trade can be thought of. If the principle of Pacta Sunt Servanda is not in practice, general international law will be meaningless. Therefore, the general principle of international law like the doctrine of Pacta Sunt Servanda should be respected.

Aus. J. Law, Ethics & Gov. Vol 3(2), October 2018, P 55-59

Keywords


Pacta Sunt Servanda; International law; Force Majeure; Necessity

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