The Limits Of Pacta Sunt Servanda In International Law

6235 words - 25 pages

Summary - The Limits of Pacta Sunt Servanda in International Law
The debate on stability and change - or the limits of pacta sunt ser- vanda - has played a central role in the history of international law. The question under which conditions a state may derogate from treaty obli- gations in case of changed circumstances seems a constant. It is exacer- bated by the inherent characteristic of treaties to "freeze" law at the moment of adoption, thus fixing it at a certain point in time. This dis- tinguishes treaties from international customary law, which - based on state practice and opinio iuris - follows reality, in Dupuy's words, in de- grees of mimicry. Contrary to the latter, treaties are in permanent ten- sion to the passing of time and changing circumstances. Stability and change were discussed at different times with varying fo- cus. The most intensive debate surrounding these structural elements of the law of treaties seems to have taken place in the inter-war period, in the context of peaceful change: Article 19 of the Covenant of the League of Nations adopted an institutionalized solution, conferring the competence to the Assembly of the League of Nations to suggest trea- ties that have become inapplicable for revision when these endangered the peace of the world. After the failure of the League of Nations, the mechanisms developed after 1945 rather focused on action taken by the treaty parties. Articles 61 and 62 of the Vienna Convention on the Law of Treaties (VCLT) respectively allow for treaty termination or suspen- sion in cases of supervening impossibility of performance and funda- mental change of circumstances.
Recent developments added new dimensions to the debate on stability and change. First, the formation of the law of state responsibility as a system of secondary norms and especially the therein conceptualized circumstances precluding wrongfulness increased the available options to accommodate subsequent changes. In particular the "legalization" (Verrechtlichung) of the necessity defence, from "necessity knows no law" to a strictly construed "law of necessity", diversified states' means to derogate from treaty obligations without as such endangering treaty stability. Thus, today, the force majeure and necessity defences incorpo- rated in the 2001 Articles on State Responsibility (ILC Articles; Articles

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Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Band 245,null2013, 617-685. Copyright © by Max-Planck-Gesellschaft zur Förderung dernullWissenschaften e.V.nullChristina...

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