Wpływ przymusu na nieważność umów międzynarodowych
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Date
1972
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Wydział Prawa i Administracji UAM
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Influence of Coercion on the Invalidity of International Treaties
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.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 34, 1972, z. 2, s. 1-14