Abstract

TELLEZ NUNEZ, ANDRÉS. The Reality of Public International Law and Approximations to a Hermeneutic Conciliation between Articles 26 and 62 of the Vienna Convention of 1969. Díkaion [online]. 2018, vol.27, n.2, pp.205-230. ISSN 0120-8942.  https://doi.org/10.5294/dika.2018.27.2.2.

A systematic look at articles 26 and 62 of the Vienna Convention of 1969 could give the impression of an apparent contradiction between them, for the interpreter. In the context of the law of treaties, the first provision establishes the principle of pacta sunt servanda, and the second contains the rebus sic stantibus clause. This would seem to indicate they operate with respect to each other as both a rule and an exception. However, within the framework of a hermeneutic study on the reality of contemporary public international law, with States viewed as living texts and an effort being made to examine not only what is behind the written norms, but also the conduct of the subjects of international law, this article proposes a working hypothesis based on the idea that what is known as public international law matches the current practice of States, and that far from what was affirmed by the London Declaration of 1871, which can be deemed as a remote forerunner of the rebus sic stantibus clause, States will always be judges of their own conduct, not in the sense of litigation, but in the sense of a set of continuous value judgements from a hermeneutic or cost-benefit perspective. To demonstrate this hypothesis, the authors resort to a multidimensional approach that covers, among other analytical tools, the law and economics and international law on foreign investment.

Keywords : Pacta sunt servanda; rebus sic stantibus; treaties; public international law; hermeneutics; Charter of the United Nations; Vienna Convention.

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