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Title: Wpływ przymusu na nieważność umów międzynarodowych
Other Titles: Influence of Coercion on the Invalidity of International Treaties
Authors: Sandorski, Jan
Issue Date: 1972
Publisher: Wydział Prawa i Administracji UAM
Citation: Ruch Prawniczy, Ekonomiczny i Socjologiczny 34, 1972, z. 2, s. 1-14
Abstract: The possibility that treaties procured by coercion are invalid has been recognized for centuries by writers on international law. It was not disputed that in principle the use of. coercion upon authorized representatives of a state brought about the nullity of a concluded international agreement. It flowed from the international practice that an act of pressure might have been applied to procure not only the signature but also the ratification, acceptance or approval of an agreement. A number of instances of the employment of coercion against representatives encouraged states to recognize occurrence as undesirable. Thus, the notion of the invalidity in this contex — which rested upon the principle of equality — took relatively easily the shape of customary norm Nowadays it is widely accepted by writers and in state practice that effective threat or use of coercion against a representative with regard not only to his own person but even to a member of his family renders a treaty invalid. The traditional doctrine of international law narrowed the illegality of coercion by distinguishing between moral (vis compulsiva) and material (vis absoluta) coercion. Only physical pressure directed against a representative personally was regarded as rendering a treaty null and void. The view underwent substantial alterations and eventually has been put into shape of the Article 51 of 1969 Vienna Convention on the Law of Treaties. It is currently recognized that even such a clear example of vis compulsiva as a threat to ruin a representative career by the disclosure of a private indiscretion, could procure the invalidity of treaty. The question of coercion is much more complex in the case of duress applied not to an individual negotiator but to a state as a whole. In classical international law treaties concluded under coercion aimed against a state became and remained binding upon this state. From ancient times the strongest states favourized the use of force for the settlement of international disputes. The view that a treaty concluded by a state coerced at the time of signature or of ratification or at both times was not ipso facto void or voidable and therefore gave a good title to international rights and duties had been entirely accepted by states which played a decisive role in international relations at the beginning of our century. Within the last 50 years this opinion at first came under attack and finally was overturned. It is a fact that at the present moment the society of states has pasted the stage of eliminating force from the arsenal of lawful means of action on the international plane and has thereby rendered all treaties procured by coercion null and void. The principle of invalidity of treaties procured by coercion of a state as a norm of general customary law is a logical consequence of the Article 2 paragraph 4 of the UN Charter. The International Law Commission refused to specify the date in the past on which the discussed principle became established. The problem whether or not the principles of the Charter became valid before 1945 is not definitely solved. However it seems to be justified to sustain the view that since the Article 2 paragraph 4 declared the modern customary law this law had been in operation before the Charter has been entered into force. On the other hand there is the characteristic trait of international customary law that the moment of its rise and fall is frequently difficult to be observed. An important question arises whether the state concerned could recognize the validity of a treaty after coercion has ceased. From the legal point of view the question must be answered in the negative. In accordance with the principle — ex injuria jus non oritur — any attempt to recognize the validity of a treaty procured by means contrary to the most fundamental principle of the Charter would be without legal effects. This view was taken by the International Law Commission in 1966 which considered it essential that the enforced treaty should be regarded as void ab initio even if a state after being liberated from the influence of a threat or of use of force wished to uphold its legality. This mentioned point was critisized in the International Law Commission itself from the angle of international practice. Bearing in mind all practical inconveniences is would be somewhat dangerous to accept any restriction of the principle of non-recognition. Modern international law leans towards the principle that a wrongful act must be incapable of changing or creating legal rights. There is a possibility to recognize an act the legality of which is doubtful but never a definitely illegal one. It is evident that by virtue of general principles of international law a treaty induced by force is illegal ab initio and as such cannot be the subject of recognition. The final question arises whether the principle of non-recognition of treaties concluded under coercion might be ommitted under circumstances in which an allegedly aggrieved state either denied the existance of the use of force or recognized it is legal. It seems to be established that if the illegality of use of force was disputable and was not unequivocally determined by a competent international organ such a recognition is not impossible.
Sponsorship: Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
ISSN: 0035-9629
Appears in Collections:Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1972, nr 2

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