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Introduction:

Pacta Sunt Servanda is a Latin term which means agreements must be kept or they must be executed in good faith. This principle incorporates the basic tenets of good faith, trust and cooperation on which the whole International law is based, as a customary legal principle. Pacta Sunt Servanda imposes a divine obligation and duty on the states to abide by their treaty. Good faith is a sine qua non-condition in this principle. Before proceeding further, it would be better to know how this divine principle came into existence in the sphere of International Law.

History of the Principle of Pacta Sunt Servanda

This principle has the force of divine power that’s why it has been considered as a divine principle based on the sanctity of contracts. It is believed that during ancient times, this principle was formulated in the Bast by the Chaldeans, Egyptians and the Chinese in a positive manner, This principle is also embodied in the Muslims holy book Quran which states “One must always abide by their stipulations” According to some jurists views, the national gods of each party took part in the formation of the contact. The gods were acting as the guarantors of the contact and serious consequence will be incurred on the defaulting party, in case of breach of the contract. Thus, every contact entered by a party must be duly performed on the principle of Pacta Sunt Servanda.

Meaning of this Principle

As a part of International law, the principle of Pacta Sunt Servanda regulates the relationship between two or more countries which have entered into a treaty. This principle ensures peace and harmony in the International sphere, instead of letting the countries dispute over the treaties.

Provisions of the Indian Contract Act, 1872 in this Principle

 This principle can be better understood in terms of the Indian Contract Act, 1872 which involves offer and acceptance.  As we all know that consent is the main element of a contract, according to section 13 of the Indian Contract Act, 1872 consent means when two or more persons are said to consent when they agree upon the same thing in the same sense Similarly, international law is based on the concept of consent too, however, it has an exception to this rule. Suppose, a country has made a treaty with Country B, now the principle of Pacta Sunt Servanda has bounded the country A, it cannot withdraw its consent once the clauses of the treaty are accepted.

 According to section 2 (g) of the Indian Contract Act, 1872, an agreement not enforceable by law is said to be void thereby applying the same provision in the international law, a treaty is said to be void if it is prohibited by the fundamental laws of that state. A state, therefore, can’t take the plea of Pacta Sunt Servanda. Agreement to do something illegal or illegal by lawful means is a punishable offence under Section 120-B of the Indian Penal Code, 1860.

What are Treaties?

According to the Cambridge Dictionary, treaty means a written agreement between two or more countries, formally approved and signed by their leaders.  For example, two countries, A and B have entered into a treaty for the upliftment of their people in the society, Now, these two aforesaid countries are bounded by the divine principle of Pacta Sunt Servanda, if one of the country to the treaty deviates, they will be liable under International Law, This will ensure that no state in the garb of power and status can violate the portions of the treaty.

It must be noted that International laws on treaties have mostly been regulated by the Vienna Convention on the law of Treaties, which sets the rules and procedure for the treaties, Since treaties can be of different types, there are two main treaties 1- law-making treaties, which are ratified by a number of states for the making or implementing a law of international nature such as environmental treaties or TRIPS, whereas a contract treaty is of private nature,  which affects the relationship of two or more countries diplomatically.

For example, India has made various diplomatic treaties with its neighbouring countries, for providing weapons and infrastructure. Though International law does not describe which treaty is void or not, but treaties made out in pursuance of a threat to wage war or fraud, is void ab initio, Also, a treaty which is made in contravention of general principles of law are void too.

Relevancy of Pacta Sunt Servanda

The principle of Pacta Sunt Servanda is based on public international law; it has also found its existence in the International Court of Justice. According to the United Nations Charter, every member state has to observe the principle of Pacta Sunt Servanda while dealing with obligations, treaties, and promises. This will prevent conflicts and disputes between the states.

The crux of the matter is an obligation on the states to execute the treaties in good faith. This principle was for the first time declared in the Vienna Convention under Article 26.  This aforementioned article states “Every treaty in force is binding upon the parties to it and must be performed by them in good faith” This means once the clauses and conditions in the treaty are ratified by states, they become binding upon each other.  It must be noted that consent is necessary to enforce the treaty.  The principles of good faith and free consent are the foundation stones in International law.

Importance of Vienna Convention

The Vienna Convention on the law of treaties has been safeguarding the International treaties ratified by the states. It contains rules and procedures regarding the validity of Treaties. Article 18 of the Vienna Convention states that state shall refrain from committing any act, which would frustrate the purpose and object of the treaty. This article will only come into operation when the state has ratified or signed the treaty.

Sometimes states with an intent to bypass the treaty take a plea that their existing domestic laws have been preventing them to implement the clauses of the treaty.

Article 27 of the Vienna Convention clearly refrain the state from taking the defence that their domestic laws prevent them to act out a treaty.  Nevertheless, Article 46 is an exception to this rule; it states that if a treaty violates the fundamental internal law of a state who has given consent, the treaty would be deemed to be declared void from the beginning. This jealously safeguards the fundamental rights of the citizens. Thus, if a treaty which hasn’t violated the fundamental law but only the municipal laws or domestic laws, then the state has to modify its existing laws in accordance with clauses contained in the treaty. The legislature has to take certain steps to ensure that laws are in conformity with the treaty. This has been observed in the case of India when it has to freeze its IPR laws in order to bring in accordance with TRIPS treaty.

Article 52 of the Vienna Convention safeguards the state from the harshness of Article 46 if the state is able to prove that said clauses in the treaty has been procured by show of threat or force violating the principles of international law enshrined in the United Nations charter.

Has this Principle List its Relevancy?

1. Case Study of India and Pakistan, Series of Treaties Violation by Pakistan

Under the principle of Pacta Sunt Servanda, it is the foremost legal as well as fundamental duty between states to a treaty to abide by the customary principle of Pacta Sunt Servanda but Pakistan (Centre of Terrorism) has been infringing the divine maxim for the decades and there is no end to this violation.  Since the day of Independence, Pakistan has violated every treaty ratified with India, the first violation of Pacta Sunt Servanda took place when the Pakistani tribes had entered the Indian Boundaries in violation of Treaty of accession made by Raja Hair Singh to the Indian Government. The Indian Government took that matter to United Nations Security Council (UNSC) where in pursuance of a resolution, the Security Council directed Pakistan to withdraw their troops from the Kashmir but again Pakistan violated the International order, thereby resulting into Pakistan Occupied Kashmir (POK) this could be inferred from the fact that Pakistan has no respect for the International law and principle of Pacta Sunt Servanda.

There was an occasion when Pakistan had violated its Pacta Sunt Servanda.  The Shimla agreement which was signed in 1972 by the India- Pakistan aftermath of Bangladesh war. The treaty was ratified in order to maintain peace at the line of control but Pakistan had shown its nature again by sending the army again. It must be noted that from time to time, Pakistan has violated the principles of international order.

There is a strong Prima Facie evidence against the Terror funded Pakistan that it has been operating in contravention of principles of Pacta Sunt Servanda. Mumbai Terror Attack, 2008, Parliament Attack, Uri and Pulwana Attacks are the examples of Pakistan aggression and cross border Terrorism.

It is submitted that strict and punitive measures should be taken against Pakistan for violating the treaties ratified with India consecutively. Cross border terrorism cannot be tolerated to any extent.

2. Case Study: Nuclear Test Case, France Versus Australia[1]

The facts of the case are very lucid as it indicates the gross violation of the principle of Pacta Sunt Servanda. In this case, nuclear tests and weapons were conducted by the Republic of France, which caused a lot of damage and loss to the environment in the South Pacific.  It was vehemently opposed by New Zealand and Australia; they blamed France for causing environmental degradation.

However, France did not pay any heed to the objections raised by Australia and its neighbouring states. From the period of 1960 to the early 1970s, France continued to carry out it’s nuclear testing as well as atmospheric testing at Mururoa Atoll in the South Pacific. It was contended that through its testing, France had been causing the transmission of radioactive particles in the atmosphere.

Being frustrated by the lackadaisical attitude of France, Australia sought to restrain the French State from further damaging the environment. They took the dispute to the International Court of Justice whereby France argued in its counterclaim that the Court had no jurisdiction to restrain them. Surprisingly, the French Government issued a public statement that they no longer needed to conduct its tests.

Both Australia and New Zealand had probable suspicions about the declaration made by the French Government. They had a high level of uncertainty whether France would actually abide by its declaration.

Rejecting the Second appeal, the International Court of Justice while relying on the principle of Pacta Sunt Servanda held that unilateral public declaration made by France was sufficient enough to meet the demands of Australia, as atmospheric testing was stopped.

The Court went on further to observe that ‘Trust and Confidence are inherent in international cooperation, in particular in an age when this cooperation in many fields is becoming increasingly essential”.

It is humbly submitted that the Court had erred in its approach by recognising a mere declaration made by the French Government; it had grossly misinterpreted the general principles of international law and denied the right of fair hearing to Australia. The principle of Pacta Sunt Servanda can’t be constructed widely as to cover kind of declaration as a treaty. It is submitted that it is not a good law.

Aftermath, The French Government had stopped conducting atmospheric testing but still continued to conduct underground testing till 1996 causing irreparable cause to the geology of Australia.

Conclusion

Summing up all the aforesaid points and case studies, we can understand how the principle of Pacta Sunt Servanda is vital for the healthy development of diplomatic relations between the states.  Therefore, by maintaining the equilibrium in the international law for the centuries, this principle is of utmost importance for everyone in the Civil as well as International law.

In the end, we have also come to know the limitations of this principle. It could be arguably stated that this principle is indispensable for the growth of diplomatic ties all over the world.


References:

  • www.newdelhitimes.com/pacta-sunt-servanda123/
  • www.legalbitess.in/pacta-sunt-servanda-under-international-law

[1] Nuclear tests (Australia V. France), ICJ, 9th May, 1973


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