What is Pacta Sunt Servanda?

This Episode explains the meaning of the Oldest Doctrine in Public International Law, Pacta Sunt Servanda, its relevance and exceptions. 

what is Pacta Sunt Servanda?

You would be surprised to know that it is undoubtedly the oldest principle of International Law. 

In essence, it is a Latin term that literally means “agreements or promises must be kept.” 

Thus, it is a foundational rule of Public International Law according to which treaties and agreements must be observed in good faith by the countries. 

To understand in a better manner, this term could be dissected into two parts: - 

1. Observance of Agreements – It simply means that if a country has entered into an agreement with other countries, then later on, it cannot backtrack from such an agreement till the time the agreement is in force. However, if an agreement has expired or has ceased to exist, then this principle will not be applicable. What you also need to know is that agreement, treaty, pact, convention etc., are all synonymous terms and are being used interchangeably in Public International Law. So, don’t get confused. 

2. Good faith – As I stated earlier that Pacta Sunt Servanda means that treaties must be abided in good faith. So, what does good faith mean? In Latin, good faith is called as bona fide that means the standard of conduct expected of a reasonable person while entering into any agreement with other persons. Basically, when acting in good faith, one has to act without fraudulent intention or without an intent to cheat. 

Therefore, the bottom line of this principle is that whenever countries enter into treaties or agreements, they must do so with an honest intention and the provisions of the treaty must also be implemented or followed in earnest. This is because trust and confidence are inherent in international system. In today’s world, where things are so interconnected, it is not possible to achieve desirable results without observing treaties and agreements in good faith. 

Pacta Sunt Servanda also finds mention in Article 26 of the Vienna Convention on Law of Treaties (VCLT). Article 26 states that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” 

Thus, treaties are binding in nature, and they cannot be violated at the whims and fancies of the member states. Does it mean that Pacta Sunt Servanda can never be violated? No. There is one important exception to this principle. 

It is again a Latin term and is called as rebus sic stantibus that is codified in Article 62 of Vienna Convention on Law of Treaties (VCLT). It simply means “as things stand.” And it postulates that a treaty or an agreement becomes inapplicable where there is a fundamental change of circumstances. 

Fundamental change in circumstances means change in circumstances that constituted an essential basis of the consent of the parties to be bound by the treaty and such change radically transforms the extent of obligations to be performed under the treaty. 

However, a fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change is the 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.

Apart from rebus sic stantibus or fundamental change in circumstances, there is no other exception to the principle of Pacta Sunt Servanda. 

By now, you must have understood that Pacta Sunt Servanda is indeed an important principle of International Law. What you also need to know is that it is not just a principle applicable in International Law, but it is also a fundamental principle of law. It is being heavily used in the Law of Contracts and Civil Law. 

If countries stop following the principle of Pacta Sunt Servanda, then the entire International System will collapse as there would be no value left in the words and promises of the countries. 

For example, tomorrow China and USA enter into an agreement that both of them will not use nuclear weapons against each other under any circumstances whatsoever. Now, USA has no intention of honoring this agreement and it nukes China. US entered into the same only to make sure that China is not able to use its nuclear weapons against US before US does. If such conduct prevails in the international sphere, then there would be nothing but chaos. 

Further, no development of International Law would be possible without Pacta Sunt Servanda as on the basis of it the countries enter into treaties or agreements. Over time, a network of rules and norms on various subjects have been created in International Law. These rules and norms further provide for different International Organizations and Institutions help in filling up the gaps that are existing in International Law. A good example is that of the International Court of Justice. The disputes between countries signify an absence of clear rules. The decisions given by the ICJ help in filling these gaps. 

The principle of Pacta Sunt Servanda has also been discussed in various case-laws of International Law such as the Nuclear Tests Case (Australia & New Zealand v. France, 1973) and the Fisheries Jurisdiction Case (United Kingdom v. Iceland, 1972).