Validity of the Dayton Peace Agreement in Light of Articles 53 and 64 of the Vienna Convention on the Law of Treaties

Abstract

The Dayton Peace Agreement (DPA) ended the bloodshed in Bosnia and Herzegovina. Nonetheless, from the perspective of international law, many doubts about its validity remain. This article tries to shed light on this issue by examining whether the DPA, by establishing and/or recognizing two Bosnia and Herzegovina’s entities, stipulated a breach of ius cogens (direct line), and whether the DPA validated what could not be validated, that is a situation created by a breach of ius cogens (indirect line). In order to reach the conclusion, the article first examines what constitutes ius cogens in contemporary international law. The article, then, extensively examines the position of the Vienna Convention on the Law of Treaties, international practice and the International Law Commission draft articles on Responsibility of States for internationally wrongful acts in this regard. It is concluded that the Dayton Peace Agreement provisions establishing the entities should be declared null and void, since they represent (1) the direct result of the acquisition of territory by force; and/or (2) the situation created by serious breach of obligations under peremptory norms (whether the already established ones or the emerging ones), and/or a situation in breach of obligations owed to the international community as a whole.