Article 20.

Pacta Sunt Servanda

Source: The American Journal of International Law, Vol. 29, Supplement: Research in
International Law (1935), pp. 977-992
Published by: Cambridge University Press
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 978 LAW OF TREATIES

propaganda in Great Britain in violation of the terms of an agreement of

June 4, 1923, between the two countries. Referring to this agreement and a
recently concluded treaty, the note said:

His Majesty's Government mean that these undertakings shall be

carried out both in the letter and in the spirit, and it cannot accept the
contention that whilst the Soviet Government undertakes obligations,
a political body, as powerful as itself, is to be allowed to conduct a prop-
aganda and support it with money, which is in direct violation of the
official agreement. The Soviet Government either has or has not the
power to make such agreements. If it has the power it is its duty to
carry them out and see that the other parties are not deceived. If it
has not this power and if responsibilities which belong to the State in
other countries are in Russia in the keeping of private and irresponsible
bodies the Soviet Government ought not to make agreements which
it knows it cannot carry out. (12 Bulletin de l'Institut Intermediaire
International, 1925, pp. 33-34.)

Cf., in this connection, the assurances given by M. Litvinoff to President

Roosevelt as to the policy of the Soviet Government as a condition of its
recognition by the United States. 28 American Journal of International
Law (1934), Supp., p. 3.
Treaties not infrequently require by their express terms appropriations of
money or the enactment of legislation to insure their execution. An increas-
ing number, especially of multipartite treaties, pledge the parties to enact
certain specified legislation, or to propose or recommend to their legislatures
the enactment of such legislation. See, e.g., Article 12 of the Convention of
March 14, 1884, for the Protection of Submarine Cables (2 Malloy, Treaties,
etc., p. 1954), which obligated the parties "to take or to propose to their re-
spective legislative bodies the measures necessary in order to secure the exe-
cution of this Convention, and especially in order to cause the punishment,
either by fine or imprisonment or both, of such persons as may violate the
provisions of Articles 2, 5 and 6." See also Article 5 of the General Act for
the Repression of the African Slave Trade, signed July 2, 1890 (ibid., p.
1970), which pledged the parties, in case they had not already done so, "to
enact or propose to their respective legislative bodies, in the course of one
year at the latest from the signing of the present General Act, a law rendering
applicable, on the one hand, the provisions of their penal laws concerning
grave offenses against the person," etc. See also Article 122 of the Algeciras
Convention, signed April 7, 1906 (ibid., p. 2157); Article 27 of the Conven-
tion of July 6, 1906, for the Amelioration of the Condition of the Wounded in
Armies in the Field (ibid., p. 2192); Article 19 of the International Wireless
Telegraph Convention, signed November 3, 1906 (3 Treaties, etc. of the United
States, p. 2894), which bound the high contracting parties "to take or pro-
pose to their respective legislatures, the necessary measures for the execution
of the present convention"; Articles 20 and 24 of the Convention and Final
Protocol for the Suppression of the Abuse of Opium and Other Drugs, signed

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 ARTICLE 20 979

January 23, 1912, and July 9, 1913 (ibid., pp. 3032 and 3034), which pledged
the parties to examine into the possibility of enacting laws or regulations
making illegal the possession of raw opium, etc., unless they already had
existing laws or regulations regulating the matter, and to propose the drafts
of such laws and regulations within six months after the coming into force of
the convention; and Article 4 of the Convention of March 2, 1923, for the
Preservation of the Halibut Fishery of the Northern Pacific OCean (ibid., p.
2661), which pledged the high contracting parties "to enact and enforce such
legislation as may be necessary to make effective the provisions of this Con-
vention, with appropriate penalties for violations thereof." Bipartite
treaties also sometimes bind the parties or one of them to enact certain
legislation. See, e.g. Article 10 of the Protocol between the United States
and Haiti for the Establishment of a Claims Commission, signed October 3,
1919 (ibid., p. 2681), by which Haiti bound herself to enact legislation to
compel the attendance before the commission of witnesses whose testimony
was desired in connection with any claims before the commission and to re-
quire the production of papers which the commission might deem necessary
for it to consider.
When the obligation is merely upon the executive to propose or recom-
mend legislation for the consideration of the legislature, the obligation is dis-
charged when the recommendation has been made. There would seem to
be no obligation on the part of the legislature in such cases to comply with the
recommendation. When, however, the faith of the State is pledged to enact
legislation necessary to the execution of a treaty, it is clearly the duty of the
executive to recommend such legislation and of the legislature to enact it,
and if the executive fails to do so it is then the duty of the legislature to act
independently of the executive and upon its own initiative. The failure of
either organ to collaborate in whatever process is required for the enactment
of the necessary legislation, would involve a violation of the rule pacta sunt
servanda. The principle was thus stated by Mr. Livingston, Secretary of
State of the United States, in 1833:

The government of the United States presumes that whenever a treaty

has been duly concluded and ratified by the acknowledged authorities
competent for that purpose, an obligation is thereby imposed upon
each and every department of the government to carry it into complete
effect, according to its terms, and that on the performance of this obliga-
tion consists the due observance of good faith among nations. (2
Wharton, International Law Digest, 1887, p. 67.)

A similar view was expressed by the French Conseil d'Etat in 1839, when it
affirmed that the obligation to execute treaties rests not upon a single organ
or authority but upon all those, legislative, executive and judicial, whose col-
laboration may be necessary. Dalloz, 42 Jurisprudence G6n6ral, R6pertoire,
pt. I, No. 131, p. 555. See, in the same sense, Wright, "The Legal Nature
of Treaties," 10 American Journal of International Law (1916), p. 722, and

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980 LAW OF TREATIES

"Treaties and the Constitutional Separation of Powers," 12 ibid. (1918),

p. 84.

If a treaty requires the payment of money, or any other special act,

which cannot be done without legislation, the treaty is still binding on
the nation; and it is the duty of the nation to pass the necessary laws.
If that duty is not performed, the result is a breach of the treaty by the
nation, just as much as if the breach had been an affirmative act by any
other department of the government. Each nation is responsible for
the right working of the internal system, by which it distributes its
sovereign functions; and, as foreign nations dealing with it cannot be
permitted to interfere with or control these, so they are not to be affected
or concluded by them, to their own injury. (Dana's Wheaton, Dana's
note No. 250, citing Kent, 1, 165-166.)

The opinion of Kent was that "treaties of peace, when made by the com-
petent Power, are obligatory upon the whole nation. If the treaty requires
the payment of money to carry it into effect and the money cannot be raised
but by an act of the legislature, the treaty is morally obligatory upon the
legislature to pass the law, and to refuse it would be a breach of the public
faith." 1 Commentaries on American Law (12th ed., 1873), p. 166. As to
the duty of the Congress of the United States to make the necessary appro-
priations of money for the execution of a treaty of cession, it has been said:
"That Congress is under no obligation to make the stipulated appropriation
has not been seriously advanced by the House since 1868, although individual
advocates of the view have not been wanting." Crandall, Treaties, Their
Making and Enforcement (2d ed., 1916), p. 177. See also the following ob-
servation of Hyde (2 International Law, p. 51):
It is not unreasonable to assert that when, for example, the United
States concludes a treaty contemplating payment by it for the cession to
itself of territory, the nation incurs a legal obligation to make payment,
and incidentally agrees that the Congress will not fail to make the
requisite appropriation.

The controversy between the United States and France arising out of the
refusal of the French Chamber of Deputies to make an appropriation for the
execution of the indemnity convention of July 4, 1831, is well known. The
convention had been ratified by the King in accordance with the constitution,
but the Chamber of Deputies claimed that since it required an appropriation
of money the Chamber should have been consulted in advance of its conclu-
sion and that the United States was presumed to know that under the con-
stitution of France the execution of such a convention was dependent upon
the collaboration of the Chamber. The Government of France endeavored
to obtain the appropriation, and, when the Chamber rejected the appropria-
tion bill, the Minister of Foreign Affairs resigned. Finally, after a threat-
ened recourse to reprisals by the United States, the Chamber yielded and
made the appropriation required by the convention. Throughout the con-

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 ARTICLE 20 981

troversy, the Government of the United States took the position that the
convention was binding upon any and all departments of the French Gov-
ernment whose collaboration was necessary to its execution, and that while
the intervention of Parliament may have been necessary to its execution it
was not necessary to the validity of the convention. Wharton (2 Inter-
national Law Digest, 1887, p. 20), distinguished the action of the French
Chamber from that of the United States Congress in refusing for a time to
pass the necessary legislation for the execution of the Jay Treaty, on the
ground that in the latter case it was a refusal to approve a treaty relating
exclusively to the future, whereas the action of the French Chamber involved
a refusal to provide for the payment of a debt which "had been over and
over again admitted to be due by France." As to the controversy, see 5
Moore, History and Digest of International Arbitrations (1898), p. 4463 ff,
and 5 Moore, Digest of International Law (1906), p. 231. As to the con-
stitutional issue involved, see Chailley, La Nature Juridique des Traites
Internationaux (1932), pp. 224-225.
The phrase " carry out in good faith " as used in Article 20 is not intended
to suggest that the obligation of a State to fulfill its treaty engagements is
merely one of good faith rather than a legal obligation. It has reference
rather to the manner or spirit in which the obligation is to be performed-
the degree of fidelity, strictness and conscientiousness manifested in the ful-
fillment of the promise made. The obligation to fulfill in good faith a treaty
engagement requires that its stipulations be observed in their spirit as well as
according to their letter, and that what has been promised be performed
without evasion or subterfuge, honestly, and to the best of the ability of the
party which made the promise. It requires that a party refrain from seek-
ing to avoid its duty of performance for trivial reasons or from taking ad-
vantage of technicalities of interpretation. It is difficult to be more precise
in defining the element of good faith in the performance of treaty obligations.
In determining whether in a particular case a State is guilty of lack of good
faith in the performance of a stipulation, it may be necessary to take into
account a variety of circumstances which cannot be detailed here. One
thing is clear; namely, that the utility of the treaty system depends in large
measure upon the degree of good faith with which States fulfill the engage-
ments which they have undertaken. Sir Robert Phillimore (1 International
Law, 3d ed., 1879, sec. 136) referred to good faith as "the great moral liga-
ment which binds together the different nations of the globe." It has been
said by a French jurist that:
Le principe de la bonne foi doit 6tre un principe fondamental du droit
international. II est commun A toutes les nations civilis6es. II fait
partie de la morale internationale. Lord Phillimore, dans la Commission
preparatoire du Statut de la Cour, a cit6 cette notion de la bonne foi
comme une de celles admises in foro domestico. (Ripert, "Les Regles du
Droit Civil Applicables aux Rapports Internationaux," 44 Recueil des
Cours, 1933, p. 637.)

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982 LAW OF TREATIES

The obligation of good faith in the keeping of covenants was an ancient

rule and the fathers of the modern system of international law adopted it as
one of the basic principles of their system. Grotius, citing with approval a
statement of Cicero to that effect, declared that fidelity to promises was the
foundation not only of every particular State but also of that greater society
of States which embraces all nations. De Jure Belli ac Pacis, lib. III, ch. 25,
sec. 1 (Classics of International Law, Kelsey trans., p. 860). As good faith
among individuals was necessary to hold life together, it was more essential
still, he said, that rulers should maintain it inviolate. Even covenants with
rebels, deserters, infidels and enemies should be scrupulously kept. Ibid.,
ch. 19, p. 792 if. Pufendorf expressed the same view, Elementorum Jurispru-
dentiae Universalis, lib. I, ch. 12 (Classics of International Law, Oldfather
trans., p. 95). Compare, in the same sense, Suarez, Tractatus de Legibus,
lib. II, ch. 18, sec. 19, and ch. 7, sec. 4; and Gentilis, De Jure Belli, lib. III,
ch. 14. Bynkershoek in his chapter on "the observance of public agree-
ments " maintained that treaties "must be kept in good faith " even when the
observance "may not be expedient to the State-nay, even when it may be
dangerous." "If you destroy good faith," he said, "you destroy all inter-
course between princes, for intercourse depends expressly upon treaties;
you even destroy international law, which has its origin in tacitly accepted
and presupposed agreements founded upon reason and usage." Referring
to an admonition addressed in 1595 by the States-General of Holland to
Queen Elizabeth, that she observe a treaty made with the Dutch in 1585,
and also to a certain book which had appeared in Holland at the time main-
taining that treaties should be observed only when it was advantageous to
the parties to do so, Bynkershoek relates that the States-General by an
"edict" dated May 28, 1669, condemned the book and "openly declared
that the doctrine that a pledge was binding only when expedient, was
dangerous, abominable, and execrable." Respect for treaty obligations, he
concluded, was more necessary in international law than respect for contracts
in private law, because there was no superior power competent to compel
the parties to a treaty to observe its stipulations: Pacta privatorum tuetur
jus civile, pacta publicorum bona fides. Bynkershoek admitted that there
were generally recognized exceptions to the rule requiring observance
of treaty obligations; for example, where one State promises aid to an ally
in case he is attacked and the latter is itself unjustly the cause of the attack.
But the alleged exception resulting from the rule rebus sic stantibus, he
repudiated. Although "somewhat more respectable" than the Machiavel-
lian doctrine that a prince is bound by treaties only in so far as it is to his
advantage to be bound by them, it is, he said, "perhaps no more just."
Quaestionum Juris Publici, lib. II, ch. 10 (Classics of International Law,
Frank trans., p. 190 ff).
Vattel, to quote one more of the classical writers, devoted an entire
chapter to " The Faith of Treaties, " in which he maintained that the obliga-

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 ARTICLE 20 983

tion to fulfill treaty engagements was "indispensable." Who can doubt,

he said,

that treaties are among the number of the things to be held sacred by
Nations? . . . But treaties are no more than empty words if Nations do
not regard them as solemn promises, as rules which are to be inviolably ob-
served by sovereigns and to be held sacred throughout the whole world.
The faith of treaties, that firm and sincere determination, that in-
variable steadfastness in carrying out our promises, of which we make
profession in a treaty, is therefore to be held sacred and inviolate by Na-
tions whose safety and peace it secures; and if States do not wish to be
lacking in their duty to themselves they should brand with infamy who-
ever violates his word.
He who violates his treaties violates at the same time the Law of Na-
tions, for he shows contempt for that fidelity of treaties which the Law
of Nations declares sacred, and, as far as is in his power, he renders it of
no effect. He is doubly guilty, in that he does an injury both to his
ally and to all Nations and the human race as well.

Adverting to the right of the nations acting in concert to restrain a State

which shows a contempt for its treaty obligations and which violates them
with impunity, he declared that such a nation was "a public enemy which
attacks the foundations of the common peace and security of nations."
Nevertheless, Vattel admitted that it did not necessarily follow in every case
that because a sovereign broke a treaty he meant to flout contemptuously
his treaty obligations, since he might have had good reasons for believing
that the treaty was no longer binding upon him. "It is the sovereign who
fails to keep his promises on clearly trivial grounds, or who does not even
take the trouble to offer reasons, or to disguise his conduct and cover up his
bad faith, who deserves to be treated as an enemy of the human race."
Le Droit des Gens, liv. II, ch. 15, secs. 219-222 (Classics of International Law,
Fenwick trans., pp. 188-189).
The views of modern writers are mainly reaffirmations and amplifications
of the rule laid down by the founders of international law. Most of them
dwell upon the necessity of the rule as a fundamental condition of the utility
of international law and of an orderly international life. They point out that
if treaties were not binding on the parties it would be useless for States to
enter into them. See especially Williams, Chapters on Current International
Law, etc. (1929), p. 109; de Taube, "L'Inviolabilite des Traites," 32 Recueil
des Cours (1930), p. 295 ff; Dupuis, "Regles Gengrales du Droit de la Paix,"
32 ibid. (1930), p. 83; Urrutia, "La Codification du Droit International en
Amerique," 22 ibid. (1928), p. 194; Ehrlich, "L'Interpretation des Traites,'
24 ibid. (1928), p. 80 (who declares the rule pacta sunt servanda to be the
basis of all international law and who adds: "enlevez cette r6gle, et il ne
restera de tous les trait6s internationaux que de vain mots"); Fauchille,
1 Trait6 de Droit International Public, pt. 3 (1926), p. 350; Chailley, La Nature
Juridique des Traites Internationaux (1932), p. 78; Radoikovitch, La Re-
vision des Traites et le Pacte de la Societe des Nations (1930), p. 11 ff; Ot6-

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 984 LAW OF TREATIES

t6l6chano, De la Valeur obligatoire des Traites Internationaux (1916), p. 49,

and the opinions there cited; Wigniolle, La Societe des Nations et la Revision
des Traites (1932), p. 12 f; Strupp, Elements du Droit International (Blocis-
zewski trans., 1927), pp. 69 and 190; and Keeton, "The Revision Clause in
Certain Chinese Treaties," 10 British Year Book of International Law (1929),
p. 111. Radoikovitch (op cit., p. 19) in a review of the doctrine says:
En tous temps et en tous lieux, le principe de la force obligatoire des
trait6s a ete reconnu comme la forme fondamentale du droit des gens.
Tous les auteurs l'admettent et demandent sa stricte observation; tous
ils expriment l'id6e du respect des traites sous une forme difFerente, et
cette idWe s'impose malgre les restrictions et les exceptions nombreuses
dont souvent ils l'entourent et qui, si elles 6taient acceptees, tendraient a
nier toute valeur aux traites et rendraient impossible toute vie inter-
nationale. Il serait inutile de citer tous ces auteurs et les d6veloppements
qu'ils consacrent a la saint6te des traites et A la necessit6 de leur in-
violabilite.

Bluntschli (Droit International Codifi6, Lardy trans., 1881, Art. 410), after
affirming that the obligation to respect treaties rests on the conscience and
sentiment of justice, declares that: "Le respect des traites est une des bases
necessaires de l'organisation politique et internationale du monde." He
adds that this obligation can not be deduced from the free will of States; it
is the consequence of the necessary principles on which the organization of
mankind rests-necessary because without them peace and the security of
relations between peoples would be impossible. Fiore in his draft (Interna-
tional Law Codified, Borchard trans., 1918, Art. 735) declares: "Every obli-
gation contracted by one State toward another, produces a legal duty of the
obligor to carry out his undertaking, and a legal right of the obligee to de-
mand and exact its fulfillment." Compare also his Articles 769-772.
The principle of the binding force of treaties has been solemnly affirmed
in various international acts, declarations and conventions. Among them
may be mentioned the Protocol of London of 1871 (61 British and Foreign
State Papers, p. 1198), which declared it to be "an essential principle of the
law of nations that no power can liberate itself from the engagement of a
treaty, nor modify the stipulations thereof, unless with the consent of the
contracting powers by means of an amicable arrangement"; the resolution
of the ninth assembly of the League of Nations (League of Nations Official
Journal, 1928, p. 1669); the treaty of arbitration between Germany and
Poland signed at Locarno, October 16, 1925 (Annex D to the Final Act of
the Locarno Conference, 54 League of Nations Treaty Series, p. 327); the
similar declaration in the preamble to the treaty of arbitration of the same
date between Germany and Czechoslovakia (ibid., p. 341), and the Covenant
of the League of Nations. In the Preamble to the Covenant it is declared
that: "The High Contracting Parties, in order to promote international
cooperation and to achieve international peace and security . . . by the
maintenance of justice and a scrupulous respect for all treaty obligations in

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 ARTICLE 20 985

the dealings of organized peoples with one another, agree to this Covenant of
the League of Nations." Furthermore, the Covenant provides for the
imposition of penalties upon a member State which resorts to war in disre-
gard of certain undertakings. See particularly Articles 10 and 16. In the
Convention on Treaties adopted at Havana by the Sixth International Con-
ference of American States February 20, 1928, it is declared (Article 10)
that "no State can relieve itself of the obligations of a treaty or modify its
stipulations except by the agreement, secured through peaceful means, of
the other contracting parties."
The binding force of treaties has been affirmed in a number of decisions by
international or quasi-international tribunals. The award of the referee in
the matter of the claim of Van Bokkelen against the Republic of Haiti,
dated December 4, 1888, cited with approval the London Protocol of 1871,
already referred to, as well as the following statement of Chancellor Kent
(1 Commentaries on American Law, 12th ed., p. 175): "Treaties of every kind,
when made by the competent authority, are as obligatory upon nations as
private contracts are binding upon individuals, and these are to receive a
fair and liberal interpretation, according to the intention of the contracting
parties, and to be kept with the most scrupulous good faith." U. S. Foreign
Relations, 1886, pt. 1, pp. 1034-1035, and 2 Moore, History and Digest of
International Arbitrations (1898), pp. 1849-1850. See also the remarks of
the arbitrator (William R. Day) in the matter of the claims of John D.
Metzger and Co. against the Republic of Haiti: "It need hardly be stated
that the obligations of a treaty are as binding upon nations as are private
contracts upon individuals. This principle has been too often cited by
publicists and enforced by international decisions to need amplification
here." Award of September 27, 1900, U. S. Foreign Relations, 1901, p. 276.
In the North Atlantic Coast Fisheries Case, a tribunal of the Permanent
Court of Arbitration, in its award of September 7, 1910, declared: "Every
State has to execute the obligations incurred by treaty bonafide, and is urged
thereto by the ordinary sanctions of International Law in regard to observ-
ance of Treaty obligations. Such sanctions are, for instance: appeal to
public opinion, publication of correspondence, censure by Parliamentary
vote, demand for arbitration with the odium attendant on a refusal to
arbitrate, rupture of relations, reprisal, etc." Wilson, Hague Arbitration
Cases (1915), pp. 145, 166.
Authority for the existence of the rule pacta sunt servanda is found in
various decisions of the Permanent Court of International Justice. In its
advisory opinion regarding the Exchange of Greek and Turkish populations,
(Publications of the P.C.I.J., Series B, No. 10, p. 20) the court, referring to
a certain clause in the convention which it had under consideration, said:
"This clause, however, merely lays stress on a principle which is self-evident,
according to which a State which has contracted valid international obliga-
tions is bound to make in its legislation such modifications as may be

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986 LAW OF TREATIES

necessary to ensure the fulfillment of the obligations undertaken." See also

its observations in the case concerning the Polish nationals in Danzig, Series
A/B, No. 44, p. 24. "Throughout its jurisprudence, the assumption runs
that States will in good faith observe and carry out the obligations which
they have assumed. Hence, little hospitality has been shown to reasons
advanced by parties for the non-fulfillment of their obligations." Hudson,
The Permanent Court of International, Justice (1934), p. 547. Thus, in the
case of The Wimbledon, the court, passing upon Germany's obligations under
the Treaty of Versailles, refused to be influenced by the argument that in
the interpretation of treaty obligations "account must be taken of the com-
plexity of interstate relations," that "international conventions and more
particularly those relating to commerce and communications are generally
concluded having regard to normal peace conditions,h and that if, "as the
result of a war, a neutral or belligerent State is faced with the necessity of
taking extraordinary measures temporarily affecting the application of such
conventions in order to protect its neutrality or for the purposes of national
defence, it is entitled to do so even if no express reservations are made in
the convention." Publications of the P.C.I.J., Series A, No. 1, p. 36. The
court has also shown a reluctance to admit impossibility of performance.
Thus, in the cases concerning the Serbian and Brazilian loans it was argued
on behalf of the Serbian and Brazilian governments that on account of the
"economic dislocations" caused by the World War it was impossible for
those governments to make payments on certain bonds, in the coin stipulated
in the loan contracts. While admitting that there were equities in both
cases, the court did not find that impossibility of payment existed in either
case. Series A, No. 20/21, pp. 40, 129. It would appear from the language
used by the court, however, that had it been a case of actual impossibility of
performance this would have been recognized as a proper excuse. Finally,
it may be observed that the Permanent Court has affirmed in strong language
the principle that any breach of a treaty engagement involves an obligation
on the part of the violating State to make reparation for any injury resulting
from the breach. Judgment No. 13 concerning the Factory at Chorzo6w
(Claims for Indemnity, Merits), Series A, No. 17, p. 29.
While the doctrine and the jurisprudence are in full agreement that
treaties are binding on the parties, various explanations have been advanced
as to the reasons, legal or otherwise, why they are binding. Many writers,
however, do not consider it worth while to go into the matter, merely taking
it for granted without deeming it necessary to endeavor to establish the ex-
istence of a rule which is universally admitted. For example, Hyde (2
International Law, 1922, p. 50) dismisses the subject with the remark that
"it may be assumed that the law of nations imposes upon the parties to a
treaty the duty to perform faithfully the undertakings which they have
agreed to discharge."
The more important of the theories advanced as to why treaties are bind-

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 ARTICLE 20 987

ing may be briefly stated. First, there is the "auto-limitation" theory

which has been advanced, chiefly by a group of German writers. According
to this theory treaties are binding only because the parties to them have
freely consented to be bound by them and not because of any obligation re-
sulting from some superior law. Jellinek, Die rechtliche Natur der Staaten-
vertrdge (1880), p. 1 ff, also his Gesetz und Verordnung, p. 197; Sukiennicki,
Essai sur la Souverainete des Etats en Droit International Moderne (1926),
p. 170 seq.; Bergbohm, Staatsvertrage und Gesetz als Quellen des V6lkerrechts
(1876); and Nippold, Der volkerrechtliche Vertrag (1894), pp. 19-22. This
theory has few supporters today. It was discredited in part because its
outstanding advocate, Jellinek, maintained that international law could be
disregarded by a State if it were opposed to its interests. Op. cit., pp. 46-49.
In effect, as has been pointed out, this theory amounts to the very negation
of international law. Borchard, "Governmental Responsibility in Tort,"
36 Yale Law Journal (1927), p. 1086 ff. "As a legal theory," says Lauterpacht
(Function of Law in the International Community, 1933, p. 411), "the doc-
trine of self-limitation cannot be interpreted otherwise than as a denial of
the binding force of international law." The objections to the theory have
been pointed out by many writers. For example, Verdross, "Le Fondement
du Droit International," 16 Recueil des Cours (1927), p. 266 ff; Brierly, "Le
Fondement du Caractere Obligatoire du Droit International," 23 ibid. (1928),
p. 482; Chailley, La Nature Juridique des Traites Internationaux (1932), p.
102; Duguit, "The Law and the State," 31 Harvard Law Review, special
number (1917), p. 139 if; and Triepel, Droit International et Droit Interne
(Brunet trans., 1920), p. 76 ff.
A second theory which has been the subject of much writing is that which
regards the rule pacta sunt servanda as a fundamental axiom or postulate
which is incapable of juridical demonstration. Among those who have
adopted this view may be mentioned Anzilotti (1 Cours de Droit International,
Gidel trans., 1929, p. 42 if) and Kelsen (Daas Problem der Souveranitdt und die
Theorie des Volkerrechts, 1920, p. 106; and "Droit Interne et Droit Interna-
tional," 14 Recueil des Cours, 1926, p. 302 f, and "Ordres Juridiques
Statiques," 42 ibid., 1932, pp. 183 and 282). Anzilotti (op. cit., pp. 43-44),
referring to the special category of norms of conduct which are established
by means of treaties between States, says:
La force obligatoire de ces normes d6rive du principe que les Etats
doivent respecter les accords conclus entre eux: pacta sunt servanda. Ce
principe, pr6cis6ment parce qu'il est a la base des normes dont nous
parlons, n'est pas susceptible d'une demonstration ult6rieure du point
de vue de ces normes elles-memes: il doit etre pris comme une valeur ob-
jective absolue ou, en d'autre termes, comme l'hypothese premi6re et
ind6montrable a laquelle se rattache d'une fagon necessaire cet ordre,
comme tout autre ordre, de connaissances humaines.
He adds:
Tout ordre juridique consiste en un complexe de normes qui tirent

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 988 LAW OF TREATIES

leur valeur obligatoire d'une norme fondamentale, a laquelle elles se

ramenent toutes, directement ou indirectement. La norme fondamentale
determine, par suite, queules sont les normes qui composent un ordre
juridique donne et les ram6ne A l'unit6. Ce qui distingue l'ordre
juridique international, c'est que, dans cet ordre international, le principe
pacta sunt servanda ne repose pas, comme dans le droit interne, sur une
norme sup6rieure; c'est lui-meme qui est la norme supreme.

Kelsen (op. cit., 14 Recueil des Cours, p. 303) places the rule pacta sunt
servanda, which, he says, is an original, unique and juridically undemon-
strable hypothesis, at the base of a pyramid of norms which in his opinion
constitute in their ensemble the entire system of law, although strictly speak-
ing this hypothesis is not itself a part of the system of positive law but
serves as its "first foundation."
Chailley (op. cit., p. 79 ff) examines critically these and other theories
that have been advanced in explanation of why treaties are binding and con-
cludes that none of them are correct. His own view is that the rule pacta
sunt servanda is merely an application to treaty engagements of the general
principle of good faith. This, he maintains, was the view of early writers on
international law, particularly Suarez and Bynkershoek. Triepel (Droit
International et Droit Interne, Brunet trans., 1920, p. 62 f, and 1 Recueil des
Cours, 1923, p. 79 if), likewise rejects the theory of the fundamental hypothe-
sis, which he pronounces a "pure fiction," and defends, instead, the theory
of the collective will (explained and criticized by Chailley, op. cit., p. 106
ff, and by Lauterpacht, Function of Law in the International Community,
1933, p. 415).
Some writers (e.g., Merignhac, 2 TraitM de Droit Public International,
1907, p. 634) find in the analogy between treaties and contracts in private
law the basis of the rule pacta sunt servanda. Lauterpacht (Private Law
Sources and Analogies of International Law, 1927, ch. IV) has dwelt upon the
analogy, and while he points out very correctly that it does not always hold
good in the sense that every rule of private law may be resorted to for the
interpretation of treaties (p. 176), he regards the analogy of their binding
force as a sound one. It may be remarked in this connection that the Su-
preme Court of the United States in almost all of its definitions of a treaty
has described it as being "primarily a contract", or "in its nature a con-
tract", between nations. See, e.g., Ware v. Hylton (1796), 3 Dall. 199;
Whitney v. Robertson (1888), 124 U. S., 195; United States v. Arredondo
(1832), 6 Pet. 735; and Ford v. United States (1927), 273 U. S. 618. If this
be true, the question might be disposed of by saying that treaties are binding
on the parties for the same reason that contracts between individuals are
binding on the parties to them. The various theories advanced as to why
contracts at private law are binding are discussed by Cohen, Law and the
Social Order (New York, 1933), p. 88 ff. Chailley (op. cit., p. 98), observes
that the rule pacta sunt servanda originated in the Roman civil law and from

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 ARTICLE 20 989

it was transferred to international law and applied to treaty engagements

between States.
Perhaps a majority of jurists support the theory that treaties are binding
because there is a generally recognized rule of customary international law
which obliges States which become parties to treaties to fulfill their treaty
engagements. Thus Oppenheim (1 International Law, 4th ed., p. 704), says
the categorical answer to the question "why are treaties legally binding,
must be that this is so because there exists a customary rule of international
law that treaties are binding." See, in the sense, Cavaglieri, "Regles
Gen6rales du Droit de la Paix," 26 Recueil des Cours (1929), p. 525; Urrutia,
"La Codification du Droit International en Amerique," 22 ibid. (1928), p.
194; Lawrence, Principles of International Law (7th ed., 1923), p. 303;
RadoYkovitch, op. cit., pp. 11 ff and 29, who concludes that the rule enunciates
a principle of positive law and also an ethical norm based on good faith;
1 de Louter, Droit International Public Positif (1920), p. 471; and Heilborn,
System des Volkerrechts (1896), p. 8.
Some older writers, especially those who belonged to the law of nature
school, have derived the rule pacta sunt servanda from the law of nature.
Others have found its foundations in the necessities of international life, the
self interest of States, the sentiment of justice and morality, the principle
of good faith, etc. 2 Pradier-Fod6r6, TraitM de Droit International Public
(1885), p. 844, and Redslob, Histoire des Grandes Principes du Droit des Gens
(1923), p. 19. Brierly points out (op. cit., 23 Recueil des Cours, 1928, pp.
546-547), that, just as in the case of the rules of law generally, so in the case
of the rules of international law, one must always reach a point where a
juridical explanation of its obligatory force becomes impossible and an
explanation will have to be sought outside the law, that is, perhaps, in the
field of morals, between which and law there is a connection which cannot
be ignored.
Whatever may be the true reason why treaties are binding on the parties,
there is a universal consensus that they are binding and are binding inde-
pendently of the will of the parties. Lauterpacht remarks (Function of Law
in the International Community, 1933, p. 419) that it matters little what
explanation is accepted, since in any case "the rule in its actual operation
confronts the State independently of its will." Whether, he says, the rule is
juridical or pre-legal, whether it is imposed as a matter of juridical construc-
tion or as a clear generalization from the actual practice and legal conviction
of States, the result is the same-"in both cases, the basic rule constitutes a
command, i.e., a rule existing independently of the will of the parties. It is
of no consequence that in the international sphere the command does not
issue from a political superior." See, in somewhat the same sense, Radoi-
kovitch, op. cit., p. 13.
It is hardly necessary to say that the fact that treaty engagements are
sometimes broken, occasionally, though rarely, with impunity, proves

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 990 LAW OF TREATIES

nothing against the validity of the principle pacta sunt servanda. Nor does
the absence of a sanction established by law for insuring the observance of
treaties afford any evidence that the parties are not legally bound. 2 Hyde,
International Law (1922), pp. 2-3, and Pollock, Introduction to Phillipson's
edition of Wheaton's International Law (1916), p. xli. In fact, in the vast
majority of cases treaties are observed in good faith and cases are rare, at
least in normal times of peace, in which States have denied the binding force
of treaties the validity of which was admitted. Brierly, "Sanctions," in
Transactions of the Grotius Society, 1931, p. 1. National self-interest, a
sense of duty, respect for promises solemnly made, the desire to avoid the
obloquy which is attached to the breaking of contracts, and the force of habit
are influences sufficient in the overwhelming majority of cases to insure a
scrupulous observance of treaties. If in particular cases these forces prove
ineffective, the fear of reprisal is likely to deter a State from violating its
treaties. In practice, whenever a State defaults in the performance of its
treaty obligations it is promptly taken to task by the other party and if the
default is persisted in without proof that it was justified, reparation will be
demanded for any injuries which the innocent party may sustain in conse-
quence of the default. Sometimes the head of a State whose legislative
assembly has enacted legislation in violation of the State's treaty obligations
will take steps to have the legislation repealed, when his attention has been
called to the contravening legislation. Reference may be made in this
connection to President Wilson's address to Congress on March 5, 1914, in
which he relied upon respect for treaty obligations as his principal argument
for the repeal of the Panama Canal Tolls Act. 8 American Journal of
International Law (1914), p. 593. See also the appeal of Senator Root for
the repeal of the Act, in his addresses to the Senate January 21, 1913, and
May 21, 1914. Root, Addresses on International Subjects (1916), pp. 207
and 241.
So strong is national sensitiveness to accusations involving the good faith
of a country in the observance of its treaty obligations that almost invariably
when a State is charged with violating a treaty it promptly replies to the
accusation with a denial of the truth of the charge, or with a denial that the
treaty was actually in force and binding upon it at the time the alleged
violation occurred, or that the act complained of was forbidden by a correct
interpretation of the treaty; or, in case the truth of the charge is admitted,
with the defense that the act was justified on the ground of non-observance
of the treaty by the other party or that it was justified as a legitimate act
of reprisal or on the ground of other extenuating circumstances. See
Williams, Chapters on Current International Law, etc. (1929), p. 10, and
Radolkovitch, op. cit., p. 29. As to such accusations during the World War,
see Garner, Recent Developments in International Law (1925), p. 806 f.
According to the view of some writers, the rule pacta sunt servanda is not
an absolute one, but is subject to certain limitations or exceptions, e.g., that

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 ARTICLE 20 991

which is enunciated by the rule rebus sic stantibus. See Radoikovitch, La

Revision des Traites (1930), p. 135 ff ("the obligation to remain faithful to
treaties has its limits"); Ot6tel6chano, De la Valeur Obligatoire des Traites
(1916), p. 119; and Wigniolle, La Soci6t6 des Nations et la Revision des Trait6s
(1932), pp. 12 and 27, who declares:

Si solidement 6tablie que soit la maxime "Pacta sunt servanda" elle ne

peut pas etre un principe absolu: son empire cesse lM oil son application
stricte conduit a des resultats iniques et injustes que r6prove la con-
science juridique . . . Le traite qui n'a de valeur que parce qu'il est en
conformite avec un etat donne du droit objectif peut perdre sa force
obligatoire par suite du changement des circonstances . . . on verrait
alors qu'elle [la r6gle pacta sunt servanda] n'est que relative et comporte
une exception capitale que represente la clause rebus sic stantibus.

See also Goellner, La Revision des Trait6s sous le Regime de la Societe des
Nations (1925), p. 10 ff, who sees in the clausula rebus sic stantibus a principle
by which the rigor of the rule pacta sunt servanda is tempered and "concil-
iated." Attention may also be called to the cautious observation of Brierly,
who, while admitting that the "sanctity" of treaties is commanded by
international interest, suggests that "if international law insists too rigidly
on the binding force of treaties, it will merely defeat its own purpose by en-
couraging their violation." The Law of Nations (1928), p. 169. In the
same sense see Eagleton, "Problems of International Legislation," 8 Temple
Law Quarterly (1934), p. 505. Writers of course are by no means lacking
who maintain that a State is under no obligation, legal or moral, to observe
the stipulations of a treaty to which it has been compelled under duress to
become a party, save treaties of peace which have been imposed on a de-
feated belligerent at the close of a war, and there are some who do not admit
even this exception if the war was declared by the State which imposed the
treaty in violation of international law or of its own treaty engagements.
See on this point the comment on Article 32 of this Convention.
It may be pointed out in this connection that one of the principal crit-
icisms of the rule rebus sic stantibus is that it tends to undermine the more
important and fundamental rule pacta sunt servanda. See, e.g., Schmidt,
Uber die volkerrechtliche clausula rebus sic stantibus (1907), p. 72; Otet616-
chano, op. cit., p. 120; and the comment on Article 28 of this Convention.
As interpreted by those writers who recognize the right of unilateral termi-
nation by a dissatisfied party on account of a change of conditions, the two
rules are undoubtedly incompatible, and the clausula rebus sic stantibus
would render illusory the rule pacta sunt servanda. But few reputable
authorities today in fact so interpret it. Article 28 of this Convention
emphatically rejects the right of unilateral termination because of changed
conditions. It does not purport to enunciate a principle by which a party
may be released from the obligation to fulfill its treaty engagements while
the treaty is still in force. The two rules, pacta sunt servanda and rebus sic

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 992 LAW OF TREATIES

stantibus, as formulated in this Convention and interpreted in the comment,

are, therefore, not at all inconsistent. Nor is there anything in Articles 17,
21, 26, 27, 29, 31 and 32 which might be interpreted as being inconsistent
with the rule.

ARTICLE 21. TREATIES CONCLUDED BY INCOMPETENT ORGANS

A State is not bound by a treaty made on its behalf by an organ or author-

ity not competent under its law to conclude the treaty; however, a State
may be responsible for an injury resulting to another State from reasonable
reliance by the latter upon a representation that such organ or authority
was competent to conclude the treaty.

COMMENT

The words "made" and "conclude" are used in this article synonymously.
They mean more than is implied by the term "negotiate "; they have ref-
erence to the sum total of the acts or processes by which a treaty is brought
into force with respect to a State. Thus if, in order to come into force with
respect to a State, a treaty must be signed and ratified on its behalf, and the
instrument of ratification deposited at a designated place, the treaty is not
"'made" or "concluded" by that State until all those acts are performed.
The words "organ or authority" have reference to any public function-
ary, body, department or branch of government which makes or concludes
the treaty. For our purposes there is no distinction between an "organ"
and an "authority". The former term is frequently used in Europe; the
latter is preferred in the United States. It might perhaps be said that
while the head of the State or the parliament is an "organ", the Minister of
Foreign Affairs, or a diplomatic representative is an "authority", but if
such a distinction has any foundation in legal theory it is of no practical
consequence in the interpretation or application of this Convention.
The words "not competent" have reference to the lack of legal power or
capacity on the part of the organ or authority which concludes the treaty.
They envisage two sorts of incompetence; (1) incompetence to conclude any
treaty whatever; and (2) incompetence to conclude a particular treaty whose
validity may be questioned. Thus a treaty concluded by the Interstate
Commerce Commission of the United States would be a treaty concluded by
an "incompetent organ"', because that body does not have, under the Con-
stitution or laws of the United States, any treaty-making power whatever.
Likewise, an organ or authority which is competent to conclude some treaties,
or treaties generally, but which has no competence to conclude a particular
kind of treaty must be regarded as an incompetent organ so far as the con-
clusion of that kind of treaty is concerned. Thus, an organ which is
competent to conclude treaties generally but which is forbidden to conclude
treaties of alliance or secret treaties or a particular type of extradition treaty
is manifestly an incompetent organ so far as the conclusion of the latter kinds

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