Pacta Sunt Servanda versus Flexibility in the Suspension and Termination of Treaties
RESEARCH HANDBOOK ON THE LAW OF TREATIES, pp. 312-340, Christian J Tams, Antonios Tzanakopoulos and Andreas Zimmerman, eds, Edward Elgar, 2014
25 Pages Posted: 3 Dec 2013 Last revised: 1 Apr 2015
Date Written: December 2, 2013
This paper explores the presumptive tension between the pacta sunt servanda rule (the rule that commitments ought to be honoured) and the possibility for unilateral or consensual suspension or termination of treaties. It argues that the pacta sunt servanda rule seems able to accommodate the various methods of suspension or termination: under the general international law of treaties, termination or suspension is not actually unilateral; only the invocation of relevant grounds is. Further, both grounds for suspension or termination, as well as defences under the law of responsibility (which achieve results similar to suspension) are narrow and thus hard to invoke successfully. Finally, the law allows states to devise their own exit clauses in treaties. This leads to very broad exit clauses allowing for unilateral termination or withdrawal. This however being part of the pactum, it does not formally put pressure on the pacta sunt servanda rule.
Keywords: law of treaties, suspension, termination, withdrawal, VCLT, pacta sunt servanda, flexibility
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