A/HRC/30/44 40. Universal and regional human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, the European Convention on Human Rights, the American Convention on Human Rights and the African Charter on Human and Peoples’ Rights necessarily take precedence over other treaties. As the European Court of Human Rights decided in its 1989 judgment in Case of Soering v. the United Kingdom, the obligations under the European Convention on Human Rights prevail over those under extradition treaties, mutatis mutandis over bilateral investment treaties and free trade agreements. V. Systemic reform 41. Extraordinary problems require bold solutions. Anti-democratic investor–State dispute settlement paroxysms can be neutralized by revision or termination of such dispute settlement. If States can adopt extraordinary measures such as bailing out delinquent banks, a fortiori they can adopt measures to protect the welfare of the population. Protective actions by a State whose economy, agriculture or industry is in danger of failure because of the sometimes unpredictable effects of bilateral investment treaties and free trade agreements may be justifiable under the force majeure principle. 42. The validity of bilateral investment treaties and free trade agreements should be tested under the rules of the Vienna Convention on the Law of Treaties. For instance, a treaty may be void if it can be established that there was a manifest violation of the State’s Constitution, errors relating to a fact or situation which was assumed to exist at the time the treaty was concluded and which formed an essential basis of its consent to be bound to the treaty (art. 48), fraudulent conduct by a negotiating party (art. 49), deliberately misleading or spurious claims, corruption (art. 50), coercion (arts. 51–52) or conflict with a peremptory norm of international law (art. 53). Treaties may also be terminated or their application suspended pursuant to the doctrine of material breach (art. 60), subsequent impossibility of performance (art. 61) or fundamental change of circumstances (art. 62). Normally, treaties contain provisions for denunciation or withdrawal. In the absence of such provisions, such a right may be implied by the nature of the treaty (art. 56). To the extent that bilateral investment treaties and free trade agreements lead to violations of human rights, they should be modified or terminated. Articles 65 et seq. lay down the procedure. 43. In a famous article in the American Journal of International Law, Verdross elucidated which treaties can be considered contra bonos mores: “To this problem the decisions of the courts of civilized nations give an unequivocal answer. The analysis of these decisions shows that everywhere such treaties are regarded as being contra bonos mores which restrict the liberty of one contracting party in an excessive or unworthy manner or which endanger its most important rights. This and similar formulas prove that the law of civilized states starts with the idea which demands the establishment of a juridical order guaranteeing the rational and moral coexistence of the members. It follows that all those norms of treaties which are incompatible with this goal of all positive law — a goal which is implicitly presupposed — must be regarded as void.”54 Moreover, pursuant to 54 Alfred Verdross, “Forbidden Treaties in International Law”, American Journal of International Law, Vol. 31, No. 4 (1937), pp. 571 et seq. Verdross, “Les principes du droit et la jurisprudence internationale”, Recueil des Cours de l'Académie de Droit International, La Haye, (1935), pp. 195– 249. Robert Kolb, The International Court of Justice, Oxford, 2013, p. 81. Irmgard Marboe and August Reinisch, “Contracts between States and foreign private law persons” in Max Planck Encyclopedia of Public International Law, vol. II, pp. 758–766. Oxford, 2012. felj.org/sites/ default/files/elj/Energy%20Journals/Vol17_No1_1996_article_international.pdf. 15