Legal Literacy - This article discusses the principle of pacta sunt servanda in international agreement which forms the basis for creating agreements and implementing them in accordance with what has been agreed upon. In addition, this article also discusses state responsibility for violations of the principle of pacta sunt servanda, including the characteristics arising from responsibility, as well as exceptions to state responsibility in violating international obligations, particularly in international agreement.
Definition The Pacta Sunt Servanda Principle
Principle Pacta Sunt Servanda is the most fundamental and universal principle in international agreements. The meaning of the principle Pacta Sunt Servanda is that agreements made are binding as law for the parties who make them. This principle is said to be fundamental because it underlies the creation of agreements, including international agreements, and underlies the implementation of agreements in accordance with what has been agreed upon by the parties.
The existence of this principle also implies that denial or violation of obligations that have been agreed upon in the agreement constitutes a breach of promise or is known as default. A proponent of natural law, Grotius, stated that this principle pacta sunt servanda is a principle of natural law that underlies the system of international law, respecting promises or treaties.
Furthermore, in the Vienna Conventions of 1969 and 1986 on the Law of Treaties, Article 26 clearly states that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith” which means that every contract or agreement is binding on the parties bound by the contract or agreement and must be implemented by those parties in good faith. So, if a party violates the agreement, it is considered not to have carried out its good faith.
Responsibility for Violations of Principles Pacta Sunt Servanda
According to Article 1 of the Draft Articles on The Responsibility of States for Internationally Wrongful Act 2011 , states: “Every internationally wrongful act of a State entails the international responsibility of that State.” This means that every wrongful international act or activity by a state entails the responsibility of that state. Thus, based on the Draft Articles Wrongful Act 2011, if a country commits a violation, then that country must be held responsible.
Furthermore, Malcolm N. Shawdalam in (Sundari, 2017), states that there are characteristics that arise as a result of the accountability that will arise, namely:
- There is an international legal obligation in force between two specific countries;
- There is an act or omission that violates an international legal obligation that gives rise to state responsibility;
- There is damage or loss as a result of unlawful acts or negligence.
Based on these characteristics, if a country takes actions, whether carried out by the government or an entity or individual within the country, that violate international law, infringe upon or disrupt rights, and cause significant damage to other countries under international law, then the offending country may be subject to the principle of international responsibility. If a violation of an international agreement occurs, the form of state responsibility is responsibility for the breach of the agreement, also known as contractual liability.
However, there are exceptions to state responsibility in the violation of international obligations, particularly international agreements, under certain circumstances, including:
- Force Majeure (Article 23) Similar to the Indonesian Civil Code, which stipulates that liability cannot be claimed in cases of force majeure, Force Majeure in international agreements also exempts a state from liability. A state that violates an agreement cannot be held responsible if there is an irresistible force beyond the state's control, making it impossible to fulfill the obligation.
Consent (Article 20). According to this article, if an agreement or consent has been reached by a country, it cannot be said to be in violation of the agreement as long as there is agreement among the parties bound by the agreement, for example: both voluntarily agree to agree on matters/actions outside the agreement. - Self-Defense (Articles 21 and 22) A state's action is not considered wrong if it does not conflict with international regulations of the UN Charter, so acts of self-defense and retaliation in international relations are permitted.
- Distress (Article 24). This is an action where a country must save its people and sovereignty, so when a country is in a difficult situation and cannot fulfill an international agreement because it must be responsible for the safety of its country, this is not considered a violation of international obligations.
- Necessity (Article 25), namely a country takes action to save its interests and also save the interests of other countries as a whole, so when the state of the country is urgent, then the country that violates international obligations for the sake of its own interests and the interests of other countries is not considered a violation of international obligations, especially in the case of international agreements.
References
Wepi Sundari. 2017. Implementation of the Principle of International Responsibility in the Case of the Impact of Forest Fires in Indonesia on Neighboring Countries. FH UNPAS
Purwanto, Harry (2009) THE EXISTENCE OF THE PACTA SUNT SERVANDA PRINCIPLE IN INTERNATIONAL AGREEMENTS MIMBAR HUKUM Journal Volume 21 Number 1
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