Absolute Invalidity of Treaties and Their Non-Recognition by Third States

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The 1969 Vienna Convention leaves to States parties a treaty invalid because of its conflict with a peremptory norm the initiative, and the choice of having the International Court of Justice declare the invalidity or of reaching an agreement to the same result. The Vienna Convention provides a similar solution with regard to the invalidity of treaties concluded as a result of coercion. According to widespread opinion, third States may not consider those treaties invalid independently from the parties' action. This outcome is particularly problematic, given that both are cases of so-called absolute invalidity, where nullity is the consequence of a contrast with rules of fundamental importance in contemporary international law. This chapter explores ways in which third States may invoke such an absolute invalidity, reaching the conclusion that through the well-established practice of nonrecognition States have long declared their intention to consider treaties in such cases invalid, notwithstanding any lack of initiative of the States parties.

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... The Convention itself does not provide anything on such a division and on the other hand we can not accept this idea with certainty because as we have mentioned, the subjects that can claim invalidity even in the case of conflict with jus cogens norms, are only the parties and the consequences come only between them (Ciampi A., 2011) (while we should underline that in cases of absolute invalidity of a norms any subject can claim such invalidity). Also in the provision that defines this kind of invalidity, is included the situation when the treaty is invalid as a result of the conflict with a jus cogens norm newly created and that brings consequences ex nunc (Gianelli A., 2011). In the event that the treaty conflicts with a jus cogens norm, the parties are obliged to immediately cease the implementation of the treaty and to take measures to eliminate as much as possible the consequences of the actions taken in implementation of this treaty. ...
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The purpose of this paper is to analyze the borrower perception towards banking and nonbanking financial institutions in Albania, identifying the access of Albanian borrowers to these two important categories of financing. For this study, a survey was developed and implemented, addressed to citizens who may or may not be borrowers, to be asked about their financial behavior and perception of financial institutions. From the results of the questionnaire analyzed it was noted that the interviewed citizens were more inclined to be financed by banks with 67%, a significant percentage to come to such a result that banks are more serious institutions, more regular and with more precise procedures (although they may be delayed) compared to nonbanking financial institutions. Not only that, but 62.8% of respondents who had taken loans in non-banking institutions would not return to that institution for another loan, while 30.8% of respondents who were financed in banks would not return to that bank, where the main reason was the high interest rates of nonbanking institutions. So, the “disappointment” that a client receives in non-banking financial institutions is twice as big compared to the bank. Based on this we can confirm that borrower perception of clients chooses banks comparing to nonbanking financial institutions.
By adopting Art 53 VCLT, State Parties seized the widely academic notion of ius cogens in international law, imparted legal essence to legal theory and introduced the outcome into positive international law for the first time. Since then, the ius cogens concept constitutes one of the few largely unmutable mainstays of the international legal order, designed to protect overriding interests and values of the international community of States from selective alteration and corrosion. Indeed, the very idea of ius cogens is to delimit the destructive effects of relativism and consensualism on the international community’s essential normative commitments. Today, the ius cogens concept reflected in Art 53 is generally accepted—albeit seldom invoked in State practice—and a rule of customary international law. With a view to the overall agreement on the existence of ius cogens expressed at the UN conference, it is safe to say that Art 53 reflects a customary rule that has gradually developed long before the Convention entered into force (non-retroactivity of the Convention).
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