The principle pacta sunt servanda: doctrine and practice

• Author: Daniela Nicoleta Popescu
• Position: Lecturer, Ph.D., Law Faculty, “Gheorghe Cristea” Romanian University of Science and Arts, Bucharest
• Pages: 128-137

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Introduction

Treaties have constituted since the most ancient times, the object of a preoccupation sustained within the action of codifying of the international law. As the norms and rules of international law constitute the basis on which is built the entire system of relations within the international community, being the foundation itself of the international law. A feature of the principal international treaties is equivalent with an evoking of the cardinal points of the history traveled by mankind, or with a synthetic expression of the problems of contemporaneous world, the destiny of mankind being emphasized, in good or in evil by the texts of treaties that were concluded during time, or that are also concluded at present.

The treaty is the privileged instrument of international relations, to which states resort in all domains and the major means by which states manifest the will to create juridical relations. Instrument of relations between states, the treaty records the understandings agreed upon through a freely expressed agreement of will, thus sanctioning the guarantee of its applicability by the signing states in good faith.

According to the opinion of professor I.M.Anghel, the treaty conclusion represents the ensemble of activities that should be developed, procedures that must be fulfilled and rules that must be observed in order that the treaty to form, to become obligatory for parties, to enter into force, otherwise spoken to exist in conformity with the international law.

The principle pacta sunt servanda: doctrine and practice

Treaties are documents designated to produce determined juridical effects that consist in creation of rights and obligations for the subjects of international law it concluded, for the confirmation or consolidation of a juridical situation or attribution of a juridical statute. Thus, the treaty sanctions through the parties’ agreement of will norms of international law meant to be applied in the relevant domain of juridical regulation formulating rights which the parties convene to exercise in the juridical relations between them and international obligations which they assume in order to be fulfilled in good faith. These norms regarding to the conclusion and fulfilling of treaties have appeared since the most ancient times and have evolved within the commonPage 129 international law generating the necessity of a process of codification designated to systematize, to emphasize and develop the juridical principles and norms applicable in this domain.

The Commission of International Right of 1961, has finalized its works through a project of convention that has been submitted to negotiations of states and has been adopted on 23 May 1969 with the denomination of the Vienna Convention on treaties.[1]. According to this convention, the states that became parties to a treaty are obliged to put into application and to fulfil in good faith the obligations assumed and juridical norms endorsed, thus constituting the most important principle of international law, yet formulated since antiquity through the expression “pacta sunt servanda” (treaties should be respected).

The Convention of 1969 provides for in the III-rd part, denominated “the Respect, application and interpretation of treaties”, at art. 26 entitled “pacta sunt servanda” that any treaty being into force binds the parties and should be executed by these in good faith.

According to this principle, the concept of good faith has represented an essential element of this that has been widely debated in the doctrine [2].

The treaty concluded in conformity with the international law becomes after its entering into force, an international juridical instrument with obligatory value for the contracting parties. But in the doctrine there is discussed the ground of this obligation, the foundation of obligations that devolve from a treaty, of juridical norms included by this in order to be put into application by the contracting parties. But the answer to this problem has been different in the doctrine of international law.

The adepts of natural law recognize the existence of an international positive right, with voluntary character, being created through treaties and common laws on basis of states’ will, but this is subordinated to the natural law in the sense that the obligation of these norms, of treaties concluded is founded on respecting of the word given as principle of natural right [3]. According to H. Grotius, that has largely founded this theory, other authors, for example, S. Pufendorf, consider that the voluntary and positive law is entirely subordinated to the natural one [4]. With a diminished influence in the XIX and XX centuries, when dominant has become the positivist doctrine, the theory of natural right is re-actualized in the postwar period, becoming influent in the present juridical thinking, with respect, mostly, to the obligatory nature of international treaties and juridical norms devoted by these. The French L. de Fur, L. Delbez, P.Reuter, the English J.L. Brierly, the Austrian Al. Verdross, the Swiss P. Guggenheim, the Italians G. Savioli, R. Monaco or R. Ago and still others have formed a new school of the natural law.

These have resumed the classical distinction of Grotius between the natural law and positive international law, devoted in treaties and commons, sustaining that the former constitutes the foundation of the latter. The international law is formed from the states’ agreement, but its validity, the obligatory force of its norms devolves from factors exterior to the states’ will: the basic, hypothetical norm, the moral or juridical conscience of peoples etc.

For P. Reuter, for example, “the moral foundation of law confers to this value, life and obligatory force” [5]. J.L. Breirly criticizes the voluntarist positivism (expression of the anarchy generated by the state sovereignty) and underlines: “… the obligatory force of any law consist in that that the human being, taken individually or associated within the state, is constrained as reasonable being to believe that the order and not the chaos constitutes the principle of governing the world in which should live” [6]. In order to remove the critics made to jus-naturalism that introduces the subjectivism (“human reason”) and the confusion between morale and law, the new adepts define the natural law as an application of justice in international relations and a manifestation of some essential principles as would be: respecting of obligations assumed (pacta sunt servanda) and repair of prejudices caused unjustly.

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As against the reality of the existence of a positive international law, whose norms are created and respected by states only on basis of consent and free agreement of will, some authors consider that the moral values and principles become relevant only through their incorporation into the positive law, for example: principles of good-faith, of humanitarian right, the natural right to legitimate defense and other. Among these, P. Guggenheim considers that the obligation of positive right norms devolves from an fundamental, hypothetical norm, corresponding to the “ moral conscience of peoples” [7].

But since the XVII-th century begins also to be elaborated the positivist doctrine according to which the positive international law is formed through treaties and common laws as a positive international system of juridical norms, whose obligation character devolves from just the sovereign will of states and not from criteria or extra-state factors. It is about the taking over of a part of the doctrine of H.Grotius and its transforming into a self standing, developed and widely argued theory until nowadays. The idea of will agreement between states as foundation of treaties’ (and commons) obligation character and of norms devoted by these as a positive international law becomes an essential element of the positivist juridical thinking, in the XVII and XVIII centuries.

The Swiss jurist Em. De Vattel (1714-1768) is that who...