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ČESTMÍR ČEPELKA CYIL 6 ȍ2015Ȏ
Pacta sunt servanda is one of the most importent rules of international law. 78 With
potential derogation a contradiction or even an absurdity (Pacta non sunt servanda)
occurs.
Freedom of the high seas, which is very old norm and has nothing to do with
the quite recent phenomenon of jus cogens, also belongs to the same category of
norms. 79 This fundamental prescription also can not be derogated from because of
factual or logical impossibility. The eventual derogation of the high seas régime in
a bi-state bay without toleration of third States (fishing) must be enforced by means
of power, which is, of course, prohibited by peremptory rules of the threat or use of
force. This may be the rationale why freedom of the high seas is sometimes regarded
as a peremptory rule.80
6. Conclusion
The derogation of peremptory rules is ex lege not allowed. Belonging to their
determination there is also a special consequence of violation, that is the erga omnes
relationship, as distinguished from a synallagmatic relation (bundles of bilateral
relations);81 this in the case of rules juris dispositivi. 82 Also remaining apart are general
rules of international law which cannot be derogated from, likewise for reasons of
factual or logical impossibility (freedom of the high seas).
78 See Vienna Convention on the Law of Treaties (1969), Article 26, Pacta sunt servanda: “Every treaty in
force is binding upon the parties to it and must be performed by them in good faith.”
79 See United Nations Convention on the Law of the Sea (1982), Art. 87 Freedom of the high seas: “1. The
high seas are open to all States, whether coastal or land-locked.(...) It comprises, inter alia, (…) (a)
freedom of navigation; (b) freedom of overflight; (…) (e) freedom of fishing (…).”
80 E.g. Frowein, J. Ab. (Heidelberg, Germany). See note 11 above.
81 See : “Its name is derived from the Ancient Greek
synallagma, meaning mutual agreement.”
82 See