Introduction
The international order is founded on the principle that every State is equal and sovereign. As members of the international community of nations, each State has the right and privilege to enter into treaties and conventions for their individual and collective interests. States, as principal subjects of international law, can contract obligations for the promotion of peace, commerce, suppression and prevention of crime, or setting up territorial boundaries.
Since Hugo Grotius’ conception of an international order governed by laws, mutual agreements, and customs, there evolved the formal system of obligation-creating agreements called treaties which are almost similar to the concept of contracts in civil law.
However, treaties occupy a different pedestal since it always has a public character and only sovereign States can create and enter into it.
Treaties are binding formal agreements between States. The Vienna Convention on the Law of Treaties of 1969 governs the rules concerning treaties and enumerates the different obligations and rights State parties can expect once they enter into treaties.
It could be considered as the mother treaty of all treaties or a self-help guide to States in treaty-making. Part of a treaty’s nature is its obligatory and binding character. Nevertheless, not all obligations in international law are derived from treaties.
Customary international law imposes an equal de rigueur force upon States. The principle of pacta sunt servanda, for example is by far one of the most basic doctrines in international law. It means that treaties are to be observed in good faith and no party should be allowed to derogate from treaty obligations.
If it were not for this principle, treaties would lose their meaning since States would be sanctioned to deny liability or refuse to be bound by their agreements.
Rebus Sic Stantibus | Origin
Be that as it may, customary international law finds an exception to this all-powerful doctrine in the principle of rebus sic stantibus. Latin for literally “things thus standing”, rebus sic stantibus provides for an escape clause to the binding force of treaty obligations.
Its origin can be first traced to Scipione Gentili who was an Italian jurist in the 16th century. He created the maxim omnis convention intelligitur rebus sic stantibus. It meant that every convention is understood with circumstances as they stand.
After him, the Swiss legal luminary Emer de Vattel espoused the view that every body bound himself for the future only on the stipulation of the presence of the actual conditions.
It was later on repudiated in civil law but continued to hold sway in international law because of the static nature of the international legal system and dynamic forces influencing State actions. It has become formalized in Article 62 of the Vienna Convention in 1969.
What is the significance of this International Law Principle?
The principle serves only as an exception to the general rule that treaties should be faithfully observed and as such its application should be well guarded otherwise the basis of international law will be put to naught. The Vienna Convention on the Law on the Law of Treaties provide very specific circumstance for the use of the principle.
In fact, Article 62 of the Convention begins its statement that fundamental change in circumstances which has occurred with regard to those existing at the time of the conclusion of the treaty which was not foreseen by the parties may not be invoked as a ground for termination or withdrawal from the treaty. The succeeding paragraphs only provide the strict requirements when the principle can be called to apply.
Some thinkers believe that the principle is in direct conflict with pacta sunt servanda. However, the better analysis would be that pacta sunt servanda remains the general rule in treaty application while rebus sic stantibus is only an exception which cannot be automatically be applied unless the stringent requirements are observed.
The principle of rebus sic stantibus also serves as an equalizer in treaty obligations such as when a State was convinced to enter into an agreement because of conditions and circumstances prevailing at the time of conclusion which served as basis for its consent to be bound.
Nonetheless, those conditions and circumstances have ceased to exist or was proven to be unavailing due to change of scenario. Because of the absence of these conditions, the State finds itself disadvantaged and its compliance futile and even inimical to its interests.
The principle also prevents a scenario when a treaty hurts the functioning of the State because of its inoperability in contemporary circumstances. The treaty becomes unenforceable and the parties who agreed to it are left with no choice but to sever its ties to the agreement rather than allow it to limit their actions.
The significance of understanding its proper application comes to fore when States call for its application whimsically such as when Queen Elizabeth I of England tried to amend the Treaty of Nonsuch. Even though she succeeded in her efforts, modern legal jurists view this with disdain and contrary to international law.
In 1870, the Russian empire sought its unilateral departure from the obligations of the Treaty of Paris of 1856 citing fundamental changes in the circumstances. The London Conference decided that a party may not unilaterally withdraw from a treaty.
To this day, there are numerous treaties and conventions signed by most sovereign States. They are expected to comply with these obligations. The international community will zealously guard any attempt to withdraw from these obligations on the basis of rebus sic stantibus.
How do we relate to the principle of Pacta Sunt Servanda?
We can relate to the principle of Pacta Sunt Servanda on the light of how we are required to honor our obligations that we entered free from any defect, that is, when we consented on contracts and some other that is warranted by laws. Further, when two States enter into an agreement, it forms part of their own domestic laws.
It is a well-entrenched rule that consent is one of the essential ingredients of a contract under the civil code and this is also applicable in international law. International law is the basis of the set of guidelines that States are expected to follow for a more orderly correspondence with other States.
What is Pacta Sunt Servanda?
Pacta Sunt Servanda is loosely translated as “the agreements must be binding or the agreements must be kept.” Elsewise saying, the countries who are parties to an international agreement must make use of their promise, they cannot turn a blind eye on the agreements that they freely consented to.
It is the very reason why a country or State cannot just abandon a treaty just because it stops being beneficial to it. The principle of Pacta Sunt Servanda is, in fact, provided under article 26 of the Vienna Convention on the Law of Treaties of 1969 that says “every treaty in force is binding upon the parties to it and must be performed by them in good faith.”
Consequently, there is an obligatory nature as to the treaties that States or Nations entered and signed to. This obligation became binding and cannot be ignored or prevented to be enforced upon the State signatories. This is the wonders of the diplomatic relations between States.
When can a treaty be terminated?
There are several ways how a treaty can be terminated. Usually, it can be terminated when one party notifies the other parties of the termination, may also be based on the existence of the treaty. That is, when the treaty is only in need of existence for a particular time or until the goal has been met, as well as when there is a breach by any of the parties therein.
Under the Vienna Convention on the Law of Treaties, a treaty can be terminated by, one of which is, when there is a certain provision providing a way of termination or withdrawal from the treaty or if the parties participating into an agreement, after consultation, consented to it (Article 54).
Another is, when there is a new treaty and the provisions under it are by so far incompatible with those of the earlier provisions of the old treaty and the two are not capable of being applied simultaneously (Article 59).
Further, when there is a material breach of a bilateral treaty by one of the parties, the aggrieved party may invoke such breach as a ground to terminate an existing treaty (Article 60).
Based on the foregoing, States are not allowed to terminate the treaties they entered into on a whim or without undergoing certain procedures that is prescribed under international law. All the member states of a particular treaties are required to fulfill their obligations to it and carry out their promises at the time of the inception of those treaties.
How can a treaty be terminated?
A treaty can be terminated in the three following ways:
Material breach in the treaty
A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.
A material breach of a treaty consists in:
- A repudiation of the treaty not sanctioned by the Vienna Convention on the law of Treaties; or
- The violation of a provision essential to the accomplishment of the object or purpose of the treaty.
Note, however, that the material breach of treaty does not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.
Supervening impossibility of performance
A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.
Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
Fundamental change of circumstances
This is also known as Rebus Sic Stantibus. It is a clause in a treaty or international conventions which provides for its unenforceability because of fundamental changes of circumstances.
Article 62 of the Vienna Conventions on the Law of Treaties, provides that, as a rule, a fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty.
However, this admits of exceptions, to wit:
- The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
- The effect of the change is radically to transform the extent of obligations still to be performed under the
It must be noted however that a fundamental change may be invoked as a ground for terminating or withdrawing from the treaty if such treaty establishes a boundary or the fundamental change is a result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
Can a party to a treaty unilaterally terminate an agreement with another nation?
A party to a treaty can unilaterally terminate an agreement with another nation. In a US Jurisprudence, the court has pronounced that an innocent party to a treaty may declare a treaty void for the violation of another party or its willful refusal to fulfill or comply with its treaty obligations.
Nevertheless, there is no yet an international tribunal decision which made the same pronouncements because the principle of pacta sunt servanda would be rendered illusory. It would give an opportunity for any state to be free from obligation by asserting that another party has, in its opinion, violated or refused to comply with the treaty.
What will happen when a country violates a treaty?
First, when a country violates a treaty, other country which are also signatories to the treaty and are affected with the breach can ask remedy to international courts, specifically the tribunal vested with jurisdiction under the treaty, to enforce the obligation of the country who violate the treaty.
This is based from the established international law of pacta sunt servanda. Countries are obliged to comply with what they agreed upon.
Second, other countries who did not violate the treaty can suspend the doing of their obligation toward the violating country. This is based from international customary law on fulfillment of obligation wherein one cannot demand fulfillment from the other party without performing his obligation first.
The liability of one starts from the fulfillment of the other part of his obligation. The latter can only declare the other party to be in delay when he already performed his obligation.
In cases of material breach, it results to termination of the treaty. Despite that countries are bound to what they have agreed upon, they are not absolutely prohibited in terminating a treaty.
Their right to terminate is still existing in reasonable circumstance. When the breach negatively impacts the parties, one is allowed to terminate the same.
Can a treaty violate international law?
There is an affirmative answer to this query. A treaty can violate international law. In this case, this treaty is considered void and deemed to be not agreed upon. The rights of the parties to stipulate in their treaties are not absolute.
It is expressly provided in Vienna Convention on Law of Treaties that a treaty is void if, at the time of its conclusion, it conflict with a peremptory norms of general international law.
Peremptory norms are adhered by countries since there is no derogation allowed here. This is considered superior to all other existing treaties or treaties that is yet to be entered upon by the parties.
Conclusion
International law despite being viewed as not binding toward majority of the countries, play a vital role in the relations of the States. International law minimizes the conflict that will naturally arise upon the conduct of different countries bearing different interests.
Through treaties, customs, general principles of international law, the relations of the countries can be regulated. They are bound to adhere to what is agreed upon in treaties or comply with some other peremptory norms.
However, this obligation of the countries is not absolute. It will still go back to the fact that every country is sovereign. The State is the primary ruler of itself and its people.
Thus, countries can unilaterally terminate the treaty wherein they are signatories, but, only in reasonable circumstances following the rules on termination of the treaties.
One reason is the rebus sic stantibus wherein when circumstance of a country changes and it is impossible for the latter to comply with the agreement, it has still the right to be free from the agreement.
This rule in international law is appropriate because it is the country which should have full control of its conduct specially when circumstances are not in usual order. This right in international law should never be relinquished.