When two parties come together for a cause, when both promise to do their part, promises must be kept unless it becomes impossible to perform. There have been several Bollywood songs which depict the power of performing obligations, commitments – “Jo waada kiya woh nibhana padega”, “Waada karo nahi chhoroge tum mera saath”, “yeh waada kiya hamne”, and the list goes on and on. Because words said hold some value, and must be kept. Otherwise, there will be trust issues and the society would be in chaos. Pacta sunt servanda is one such Latin phrase which lays the foundation of a relatable concept in international laws, as discussed below.
Pacta Sunt Servanda Meaning
The phrase comes from Latin roots and lays the foundation of a very important legal principle. Literally speaking, “pacta” means “pact” or “agreement”, “sunt” means “they are”, and “servanda” means “to be maintained, saved, or served”. The phrase pacta sunt servanda means agreements must be kept. In other words, if two parties have entered an agreement or a contract, and have certain obligations to perform, it must be performed in good faith.
Humans are social animals, dependent upon each other for survival and community building. If words are not respected, agreements are not kept, then there will be more chaos. Even if the parties do not stay truthful towards each other, the law should enforce what is right. With this thought process, the legal principle of pacta sunt servanda applies to treaties, agreements and contracts, as the case may be.
Pacta Sunt Servanda Means in International Law
The Latin term for renowned legal principle Pacta Sunt Servanda is most commonly studied under International Laws. While there is no concrete name for introducing the concept, it is said that the principle was established in the theories of Machiavelli. Later, the phrase itself was coined and popularized by Hugo Grotius.
Unlike a country, in International law, there is no municipal law where there are law enforcement authorities you can complain to, and the wrongdoers will be tried in Court to be sent to jails. The international laws are usually introduced through treaties, be it bilateral or multilateral. Pacta Sunt Servanda in international law addresses the doubts around what happens when a party backs out from contractual obligations citing no binding authority. The principle was established through Articles 18, 26 and 27 of the Vienna Convention on the Law of Treaties, 1969.
Article 18: States are asked to refrain from doing acts which would hamper the outcome of a treaty.
Article 26: Every Treaty is binding upon the parties and must be performed in good faith.
Article 27: One cannot use the defense that domestic laws prevent them from acting towards contractual obligations.
Exceptions to Pacta Sunt Servanda
The legal principle of pacta sunt servanda in international law is usually inevitable and binding. However, there are certain circumstances which are treated as an exception against the obligatory nature of treaties and agreements. They are:
- Invalid Treaty entered into due top fraud, misrepresentation, coercion or in violation of jus cogens (customary norms of international laws)
- A New State which came into existence after revolt. In such case, the existing obligations through previous State may not be applicable upon the newly born State;
- Treaty obligations pertaining to a property that is ceded or merged;
- Clausula rebus sic stantibus, which means inapplicability of treaty obligations after fundamental change of circumstances.
It may be noted that unilateral termination of a treaty should not happen unless the treaty itself expressly allows so. If the treaty has the scope for unilateral termination, the terms and conditions should be aligned with while terminating the same.
Pacta Sunt Servanda Example
The Nuclear Test Case is the most famous example of pacta sunt servanda. In this case, New Zealand as well as Australia sued France before the International Court of Justice (ICJ) for conducting an atmospheric nuclear test in the South Pacific Ocean. The main concern for taking legal action against France was environmental impacts due to such testing. When ICJ directed France to halt the atmospheric nuclear test with immediate effect, France questioned ICJ’s jurisdiction.
Later, France made a public declaration that they no longer needed atmospheric nuclear testing. When Australia and New Zealand appealed before the ICJ questioning the reliability of France’s unilateral declaration, the ICJ relied upon the doctrine of pacta sunt servanda.
Conclusion
In International Law, where holding a party liable is a major task since all the parties are sovereign and on their own, holding them obliged for their commitments is very much needed. The doctrine of pacta sunt servanda in international law plays that crucial role, holding parties liable for contractual obligations they commit to. How effective the legal principle proves, that depends upon how committed a party is in good faith towards the contractual obligations.
