At the conference for media of the envoys from the European Union for the dialog between Kosovo and Serbia, Mr. Miroslav Lajcak and from the United States of America, Mr. Gabriel Escobar, pointed out the doctrine Pacta Sunt Servanda as a diplomatic argument. This doctrine mentioned by Mr. Lajack has been widely quoted in the Serb media and unfortunately without debate has been quoted by some media in Kosovo. This doctrine has also been misunderstood by some local connoisseurs using their public notoriety.
This conference held on February 2, 2022, by the two envoys, was organized in such a way as to answer the questions of journalists, i.e., the dilemmas of the people in Kosovo, on many topics of interest. However, to the surprise of the envoys, which was also seen as a shock by their attitudes in mimicry and gestures, the conference gave tone to the senseless questions of journalists on topics that are least in the interest of citizens and Kosovo!
The majority of questions asked by journalists was focused on the question of the association of municipalities with a Serb majority. Approach of some with such questions can even be regarded as a means of pressure on the Government of Kosovo to implement the agreement of the Association! Asking so many questions about it, medias pressed Mr. Lajcak to make a comment, even referring to the doctrine Pacta sunt servanda.
In accordance with this doctrine, signed agreements must be implemented on the basis of the Vienna Convention on the Law of Treaties of 22 May 1969.
The USA is not a signatory to this Convention, but recognizes some parts of it as part of customary international law as argued by Dalton, et al. (1984).
The object of this paper, first we made it the essence of the Pacta sunt servanda doctrine, emphasizing the clause called Rebus Sic Stantibus, then returning to the agreement of the Association of Serb-majority municipalities and revising it in partial terms, which enable exit from the current position.
The legal framework
Pacta sunt servanda is part of Article 26 of the Vienna Convention on the Law of Treaties (1969) of the third part of the reservation, implementation and interpretation of treaties, in the first section on the reservation of treaties. In article 26 writes: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith” (1969).
The application of agreements in good faith is also part of the general law of international law, known in Latin terms as bona fide. “Every treaty in force is binding upon the parties to it and must be performed by them in good faith” (1969).
Malcolm Shaw (2003) writing for pacta sunt servanda thotw: “in the absence of a certain minimum belief that states will perform their treaty obligations in good faith, there is no reason for countries to enter into such obligations with each other” (p, 812).
Shaw also in the name of peace draws attention to the doctrine of peaceful coexistence. Shaw (2021) said: “The doctrine of peaceful co-existence was also held to include such ideas as good neighbourliness, international cooperation and the observance in good faith of international obligations” (pp. 430-431).
This concept signifies the principle of good faith as a key component of most historical and modern juridical orders and a “general principle of international law”. The principle requires parties “to deal honestly and fairly with each other (…) and to refrain from taking unfair advantage” (Zouari, 2020).
Pacta sunt servanda doctrine is limited only by the general norms of international law, which are termed as jus cogens, otherwise known as peremptory norm. Article 64 of Convention to the Emergence of a new peremptory norm of general international law (“jus cogens”) write: If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.
Within the same framework of the general principles of international law that limits the Pacta sunt servanda, is the clausula Rebus Sic Stantibus.
Circumstances alter cases, says the English historian and literary critic Thomas Rymer.
The clausula rebus sic stantibus is also part of the Vienna Convention on the Law of Treaties. This clause is the legal doctrine that allows a contract or treaty to become inapplicable because of a significant change in circumstances. In public international law, this clause is also referred to as the escape or salvage clause.
Article 62 of Convention predicts the coverage of this clause in what is called Fundamental change of circumstances.
Based in this article, a change of circumstances must be:
(1) of circumstances existing at the time of the treaty’s conclusion,
(3) not foreseen by the parties,
(4) the existence of the circumstances must have constituted an essential basis for the consent of the parties to be bound by the treaty, and
(5) the effect of the change must be to radically transform the scope of obligations still to be performed
Professor Julian Kulaga (2020) from Humbold University in Berlin said: “The last three requirements indicate that the doctrine is to give effect to the parties’ common intentions and shared expectations, which are being pursued with the conclusion of the treaty. Only when these shared expectations have been frustrated, may a party abrogate from the treaty”.
Oliver J. Lissitzyn (1967) before Vienna Convent, has developed the term shared-expectations.
This means that the approach must reflect the intentions of all parties to the treaty. Meanwhile according to Kulaga, rebus sic stantibus puts more access to negative effects on a single pair.
Kulaga (2020) said: “Despite the ICJ’s adoption of the ‘shared-expectations’ approach, two different strands of arguments have recently emerged outside of the judicial context”.
In the first strand he [Kulaga] put changes of policy in the domestic realm dealing with constitutional arrangements.
Here he mentions some cases, such as:
- Termination of five bilateral treaties by Poland in 1999 on cultural and scientific cooperation with the USSR, Cambodia, Laos, Mongolia and Cuba.
- Resolution of the National Assembly of Kenya requesting withdrawal from the Rome Statute in 2013.
- Bilateral investment agreement between Chile and Ecuador. In 2010 the Constitutional Court of Ecuador found a violation, considering it as an agreement that contradicts the constitution of the latter.
In the second strand, Kulaga (2020) put the argument of vital state interests. This starts from the Ecuadorian argument, mentioned earlier, which was based on the fundamental change of circumstances, as it was ascertained that it destroyed the trust of the Ecuadorian people and that it was only a short step towards the vital argument of the interests of the state. For some States the values and norms protected by their constitutions are vital for their self-preservation and development. It is no wonder, therefore, that the second line of reasoning intended to justify a fundamental change of circumstances, is the one of vital State interests.
Some cases are:
- Termination of the ABM Treaty (2001) by the United States;
- The agreement concerning the Management and Disposition of Plutonium Designated of 2000 between the USA and Russia, the latter suspended it in 2016 in the name of changing circumstances, the state interest in use for energy production.
- The Danish emergency brake law in times of high influx of asylumseekers, in 2017, which was undertaken on behalf of the Opinio juris.
The opinio juris [Opinio juris sive necessitatis], is “belief that a state activity is legally obligatory, is the factor which turns the usage into a custom and renders it part of the rules of international law. To put it slightly differently, states will behave a certain way because they are convinced it is binding upon them to do so, or, as ILC Conclusion 9(1) puts it, ‘the practice in question must be undertaken with a sense of legal right or obligation’” (Shaw, 2021, p. 526) (Draft conclusions on identification of customary international law, with commentaries, 2018).
Other notable cases undertaken in the context of the rebus sic stantibus clause prior to the Vienna Convention include:
- In 1926, China unilaterally abolished the treaty with Belgium from 1865;
- In 1924 Norway repealed the treaty concluded with Sweden in 1907 on the occasion of the division of the two countries;
- France in 1932 decided that under the clause, not to pay back World War I debts to the United States;
- At the Geneva Conference of 20 April 1922, the USSR withdrew from all the earlier agreements concluded before the 1917 Revolution;
- Egypt’s 1936 Treaty with Britain that came before the Security Council in 1947, but did not achieve satisfactory results;
- On March 11, 1966, France addressed a memorandum to NATO countries, informing them of the change in the existing circumstances in the world since 1949, as it wanted to emphasize there for independent actions outside NATO;
- On August 9, 1941, the US President, Franklin D. Roosevelt, suspended the application of the International Convention on Load Lines of 5 July 1930 for vessels in United States waters (Haraszti, 1975, pp. 16-37).
According to the authors of public international law, there are two types of application of the clause rebus sic stantibus. That of partial withdrawal and that of total withdrawal (Kulaga, 2020), hence this right allows the implementation of the treaty to create other circumstances.
The above mentioned cases are arguments on both types of removals based on the rebus sic stantibus doctrine. Here we do not find it reasonable to summarize all the cases, since such a thing as it is almost impossible, is also unjustifiable in respect of the time and nature of this paper.
Agreement of the Association of Serb-majority Municipalities in Kosovo
On 25 August 2015, an agreement was concluded in Brussels between Kosovo and Serbia on the formation of the Association of Serb Majority Municipalities in Kosovo (25 August 2015). This type of association faced a lot of opposition. Consequently, the President of the Republic, Mrs. Atifete Jahjaga in August 2015, referred the case to the Constitutional Court of Kosovo (President Jahjaga Today Sends the Association to the Constitutional Court, 2015).
The Constitutional Court on November 10, 2015 ruled that the association agreement has 23 constitutional violations, but it does not reject it in its entirety, leaving the possibility to proceed further with the necessary changes, and then its application (Judgment in case no. KO130 / 15 2015).
In the context of this decision, the court allowed it to be understood that, despite the fact that the agreement is contrary to the constitution, the court did not have the courage to allow it to pass as such, since this was a violation of the constitution, but did not have the courage to dismiss it on the whole as inapplicable.
From this unfavorable position that politics introduced the Republic through the agreements of 2013 and that of 2015, and then the Constitutional Court with a very ambiguous decision, politics and diplomacy must act again, despite the fact that it will be forced to walks on the edge of the knife, somewhat similar to how the US acted in defense of Kosovo in the ICJ. Also based on the ICJ’s opinion on Kosovo independent
Article 21 of Association/Community of Serb majority municipalities in Kosovo – general principles main elements agreement, exactly a part of that article, says: “The Statute will be endorsed by decree upon agreement in the Dialogue. Any amendments will be presented by the Association Community, will be endorsed by decree and will be reviewed by the Constitutional Court” (2015).
However, such a decision, as mentioned above, was referred to the Constitutional Court before proceeding with the establishment of the Association and the Constitutional Court preceded it with a decision, as we described above – ambiguity in a large scale.
The US and EU declarations no longer insist that the association be implemented as planned in the 2015 agreement.
The US and the EU are seeking some sort of implementation of the agreement (taking into account existing models of similar structures in the world) and at the same time a way out. This formulation of Western diplomacy implies that the agreement has opportunities to change and implement (Deutsche Welle, 2022). In this respect, the US is now more persistent. However, the United States, as noted above, is not a signatory to the Vienna Convention on the Law of Treaties.
The Association Agreement forms part of the peace agreements with Serbia and its recognition of Kosovo. Therefore, as such the agreement should lead to the resolution of problems in good faith. As such, it should not be an accord that will cause problems in the future, even at the expense of stability.
Any agreement reached in such a way that de-functionalizes the Republic, undermines peace, and must be rejected, either by Kosovo or by Serbia. Since Serbia cannot invade Kosovo, whereas Kosovo is interested in achieving peace with Serbia, their progress in the EU integration process remains dependent on that process. Besides, the diplomatic patience of the superpowers may cease. However, the pressure must always be directed by the actual destabilizing factor – Belgrade.
If the agreement on the Association, as reached in 2015, does not contribute to peace, it is not a bona fide agreement, as one of the parties, namely Serbia, is behaving dishonestly and wants at all costs to benefit unfairly.
Pacta sunt servanda is an important principle of the general norms of public international law, however, the same principles limit it within the corpus of jus cogens norms, as a new norm prescribing to unfair agreements, the necessary be bona fide deals.
Due to this, there is a doctrine rebus sic stantibus. The decision of the Constitutional Court has shown that the agreement for the Association is not built on the good faith (bona fide) intentions of both parties; it has also shown that the agreement is not valid even in its initial principles, because as such, it affects the vital interests of the state, consequently partially it is invalid. On the basis of such norms, even Serbia does not have the right to request the implementation of the Association Agreement on the basis of the 2015 principles. That is confirmed in the language of diplomacy by the United States and the European Union.
The signing of the agreement, probably, was not predictable that would be contrary to the Constitution of Kosovo by any of the parties in the dialogue, not even by the mediators, or so only the Kosovor side resonated?! Therefore, the constitutional ruling on the agreement itself has so far changed the attitude of many parties to it, with the exception of Serbia.
Such an agreement then passes to the clause rebus sic stantibus, becuase as such it cannot enter into the corpus of treaties pacta sunt servanda, since it no longer expresses the shared- expectations, but only of one party.
This agreement as such, as noted, also affects the internal and external sphere of the Republic of Kosovo, if continued under the 2015 principles.
The Government of Kosovo has an obligation to act in accordance with the provisions of international law opinio juris. Otherwise, it would be inconsistent with the interests of the state and the people of Kosovo and with international law and peace. The United States and the EU have changed their position on this agreement; they are already demanding the opening of this agreement. It is also requested of the Government of Kosovo, which implies that the agreement becomes a matter of discussion.
In order to pursue Kosovo’s interests, and to maintain a good partnership with the US and the EU, the agreement must be viewed in partial terms, which based on pacta sunt servanta implies that Kosovo is implementing the agreement. However, based on the doctrine rebus sic stantibus and the decision of the Constitution, the Government must change it partially, bringing it in full compliance with the principle of bona fide and opinio juris.
Aktgjykim në rastin nr. KO130/15 [Judgment in case no. KO130 / 15]. (2015). Retrieved February 17, 2022, from https://gjk-ks.org/wp-content/uploads/vendimet/gjk_ko_130_15_shq.pdf
Association/Community of Serb majority municipalites in Kosovo – gjeneral principles main elements. (25 August 2015). Retrieved February 17, 2022, from https://eeas.europa.eu/archives/docs/statements-eeas/docs/150825_02_association-community-of-serb-majority-municipalities-in-kosovo-general-principles-main-elements_en.pdf
Dalton, R. E., Vierdag, E. W., Frankowska, M., & Tipson, F. S. (1984). The Vienna Convention on the Law of Treaties: Consequences for the United States. Proceedings of the Annual Meeting (American Society of International Law), 78, 276–284. http://www.jstor.org/stable/25658229
Deutsche Welle. (2022, February 2). Escobar dhe Lajçak: Marrëveshjet me Serbinë të zbatohen. DW.COM. Retrieved February 17, 2022, from https://www.dw.com/sq/escobar-dhe-laj%C3%A7ak-marr%C3%ABveshjet-me-serbin%C3%AB-t%C3%AB-zbatohen-nuk-imponohen-modele-p%C3%ABr-asociacionin/a-60639329
Draft conclusions on identification of customary international law, with commentaries (2018) Retrieved February 17, 2022, from https://legal.un.org/ilc/texts/instruments/english/commentaries/1_13_2018.pdf
Haraszti, G. (1975). Treaties and the Fundamental Change of Circumstances. Martinus Nijhoff.
Kulaga, J. (2020). A renaissance of the doctrine of Rebus Sic Stantibus?. International & Comparative Law Quarterly, 69(2), 477-497.
Lissitzyn, O. J. (1967). Treaties and changed circumstances (rebus sic stantibus). American Journal of International Law, 61(4), 895-922.
Presidentja Jahjaga sot dërgon asociacionin në kushtetuese [President Jahjaga today sends the association to the constitution]. (2015, October 30). KosovaPress. Retrieved February 17, 2022, from http://old.kosovapress.com/sq/lajme/presidentja-jahjaga-sot-dergon-asociacionin-ne-kushtetuese-54871/
Shaw, M. N. (2003). International Law (5th ed.). Cambridge University Press.
Shaw, M. N. (2021). International Law (9th ed.). Cambridge University Press.
Vienna Convention on the law of treaties (with annex). Concluded at Vienna on 23 May 1969. (1969). Retrieved February 17, 2022, from https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf
Zouari, M. A. (2020, December 31). The “Bona fide” (Good faith) Principle. Jus Mundi. Retrieved February 17, 2022, from https://jusmundi.com/en/document/wiki/en-bona-fide-principle#:%7E:text=Definition,-1.&text=The%20bona%20fide%20(good%20faith,refrain%20from%20taking%20unfair%20advantage%E2%80%9D.