Chapter I
INTRODUCTION
By applying the International law which binding International Community is also come from many components. The category of component of International law is defined by many figures which look at many international perspectives. In the international world itself has a international court of justice that has set forth the source of international law in Article 38 (1) statute of international court of justice which consist of : international conventions (treaty), international customs, general principle of law and doctrine.
One of the sources of international law, treaty, is become an important part in our life because it can be used to solve international problem as a soft diplomacy or to set up a relation with other countries. Moreover, during this new age, treaty is become more and more popular than used to be and also it becomes more complex and it is cannot be separated from international community as well. In this global era almost all countries make a treaty in many areas. Sometimes a state create a treaty with another state just for gaining a benefit for their state and their citizens or to solve the problem that emerge between other states. Usually treaty can solve the problem between countries. Nevertheless, there are also some disputes that occur between states or parties to the treaty, it caused by a party that breach the obligation of the treaty which has been created together by them, because they negligent or deliberately do not perform the obligations to the treaty. This condition can make the injured party or an innocent party terminates or suspends the treaty in whole or in part. This kind of case has been happened in Oslo Agreement 1993 and 1994 between Israel and Palestine which concern about the distribution of power to establish a Palestinian Interm Self Government Authority. At that time the government of Israel did not have a good faith and failed to perform the treaty, whereas Israel government has agreed to solve the dispute together. For Palestine, however, the action of Israel gave a bad effect to the people or citizens in territory of Palestine. Hence, this research is going to explain more further about the legal consequences that can be held liable to the Israel and the legal effect to Palestine as the injured state to the treaty.
Chapter II
Theorytical Basis
Similar as other laws, there are a few principle in treaty as well. One of the important fundamental principle in treaty is pacta sunt servanda. Its mean that the states (parties) which is to be bound to the treaty must perform or apply the treaty in good faith. Its importance is underlined by the fact that it is enshrined in the preamble to the Charter of the United Nations. As to the Charter itself, paragraph 2 of Article 2 expressly provides that Members are to “fulfill in good faith the obligations assumed by them in accordance with the present Charter”.[1]
However, even a treaty has that principle, some states tend to breach the rule to apply it. This is a matter in international law of treaties because it can give the worse effect to the innocent party and the innocent party can terminate or suspend of the operation of a treaty. In Article 60 (1) of Vienna Convention on the Law of Treaties mentions that a material breach of a bilateral treaty by one of the parties entitles the other to invoke breach as a ground for terminating the treaty or suspending its operation in whole or in part. That’s mean if a party to the treaty breach the rules or a substantial material that were regulated to the treaty, the injured party can terminate the treaty. In addition the party who breach a treaty can be held liable a sanction if the treaty provides it. So, the parties can provide a sanction for the state that breach the obligation of a treaty at the beginning of treaty making. For example, in bilateral treaty if one of parties to a treaty failed to do the obligation of its treaty because does not have a good faith, thus that party must be responsible for their act by getting a sanction if it is provided to a treaty.
According to The Draft of The International Law Commission of 1966, the International Law Commission proceeded from the premise that, however serious, a breach cannot ipso facto terminate the treaty.[2] It was agreed that a state was not free simply to allege a violation of the treaty and consequently declare it void or at an end.[3] It, thus adopted draft Article 57, which read as follows :
1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:
a. The other parties by unanimous agreement to suspend the operation of the treaty or to terminate it either:
i. In the relations between themselves and the defaulting state, or
ii. As between all the parties
b. A party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting state
c. Any other party to suspend the operation of the treaty with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its defaulting state.
In paragraph 1 of this draft mentions that, dealing with bilateral treaties, provided a concrete expression to the principle inadimplenti non est adimplendum. The commission considered that the right to terminate or suspend the operation of treaties for breach arises under the law of treaties independently of any right of reprisal, the principle being that a party cannot be called upon to fulfill its obligations under a treaty when the other party fails to fulfill those which it undertook under the same treaty.[4] The paragraph provided that a material breach of a bilateral treaty entitled the innocent party only to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. The words ‘invoke as aground’ were intended to underline that the right accruing from breach was ‘not a right arbitrarily to pronounce the treaty terminated’,[5] or to suspend its operation, but rather to take action to prove that a violation has been committed and that, consequently, the innocent party wished to terminate or suspend the breached treaty.[6]
The consequences of a material breach of a bilateral treaty are no doubt correctly expressed under Article 60 that has already mentioned above; it is in any event satisfactory that the exercise of the right of termination or suspension is optional at the discretion of the injured party. On the other hand, it may not be entirely satisfactory that, in the case of a material breach of a bilateral treaty, the party seeking to invoke the breach as a ground for terminating the treaty must comply with the procedural safeguards set out in Article 65 to 68 of VCLT. In effect, this means that the aggrieved party must continue compliance with a treaty which other party is violating, while the protracted procedure of dispute settlement is in progress.[7]
Chapter III
Analyzing the Case
The aim of the Israeli-Palestinian negotiations within the current Middle East peace process is, among other things, to establish a Palestinian Interim Self-Government Authority, the elected Council (the "Council"), for the Palestinian people in the West Bank and the Gaza Strip, for a transitional period not exceeding five years, leading to a permanent settlement based on Security Council Resolutions 242 and 338,[8] which were lead by Yitzhak Rabin as prime minister of Israel and Yasser Arafat as Palestine Liberation Organisation chairman. The agreement reached several approval including; Israel must stop its occupation withdrawal their troops from Jericho city and Gaza, and those areas should be transferred from Israel to the Palestinian, Israel have to stop to build and expand its illegal colonies, Israel have to open the Northern safe passage route between the Gaza Strip and the West Bank and closes the Southern safe passage route and stop using lethal force and Israel asks to Palestinian government to protect its citizens from threat of terrorist as well. Those are several agreement that must be fulfilled by Israel and Palestine.
Nevertheless, the settlement of the dispute is not running on the plan. In real time, however, Israel failed to do its obligations to the treaty or agreement. That’s mean Israel breach the contain of the treaty without performs the obligations that has arise to the treaty. At that time Palestinian is very surprise with the Israel action, because Israel did not withdraw its soldiers from Jericho city and Gaza, Israel’s military occupation not only continues, but also intensifies and Palestinians were still living under military occupation. The number of settlers living in the West Bank and Gaza Strip has doubled by Israel approximately 400.000 and Israel has increased the number of illegal housing units in the occupied Palestinian Territories by 62%.
In the paragraph above has mentioned obviously that Israel’s action has breached the Oslo agreement, and the point that breached is the important point into the agreement. Its mean Israel has done a material breach or substantial breach by which it is can be held liable a sanction if the Oslo agreement provides it or in the beginning of treaty making, the parties agreed to give a sanction for the party that breach the agreement. So, Israel should be responsible for its action which breach the treaty. The innocent party, here is Palestine, can presume that breach as a ground for terminating or suspending the agreement in whole or part. The Palestine government has a right to terminates or suspends the Oslo agreement because another party, Israel, has breached the agreement and it gives a bad effect for Palestine. Nonetheless, termination or suspendtion the treaty or agreement must through formal procedure which is regulated in Article 65-68 of Vienna Convention on the Law of Treaties. Thus, if Palestine government wants to terminate or suspend the treaty then they have to through that procedure and apply it.
Chapter IV
Conclusion
To sum up, according to article 60 (1) of VCLT mentions “a material breach of a bilateral treaty by one of the parties entitles the other to invoke breach as a ground for terminating the treaty or suspending its operation in whole or in part”. It is based on the draft of the International law Commission 1966. In case or the dispute between Palestine and Israel, Palestine has a right to terminate or suspend the operation of the agreement in whole or even in part but they must comply the rule for terminating or suspending a treaty as settled in Article 65-68 of Vienna Convention on the Law of Treaties and Israel can get a sanction from the agreement if the agreement provides it, because the Government of Israel obviously shows that they has breached the Oslo agreement, because they did not perform their obligations of the treaty and did not have a good faith to apply the treaty. In the principle of pacta sunt servanda has mentioned that all of parties to the treaty must perform a treaty in good faith. Thus, if one party to the treaty do a material breach, so the aggrieved party can make that breach as a ground for terminating or suspending in whole or part of the treaty.
[1] Report of the International Law commission to the General Assembly (yearbook of the International Law Commission (1966) vol II, 172, p.211)
[2] YBILC, Vol. II, p.254 (1966)
[3] Loc.cit
[4] Ibid. para.6 at p.255. The Commission emphasized that a violation of a treaty obligation may give the injured party the right to take non-forcible reprisals. These include the non-performance of obligations relating to the rights of the defaulting party under the breached convention. Ibid. p.254.
[5] Ibid. para.6 at p.255.
[8] The Oslo Accords 1993
Tidak ada komentar:
Posting Komentar