Termination II: International Treaty Law PDF

Termination II International Treaty Law Content Circumstances Independent from the Will of the Parties Material breach (inadimplendi non est adimplendum) Fundamental change of circumstances (rebus sic stantibus doctrine) Supervening impossibility of performance...

Termination II International Treaty Law Content Circumstances Independent from the Will of the Parties Material breach (inadimplendi non est adimplendum) Fundamental change of circumstances (rebus sic stantibus doctrine) Supervening impossibility of performance Jus cogens superveniens Severance of diplomatic or consular relations Desuetude/obsolescence  General aspects International treaties are binding agreements between states that establish legal obligations. However, treaties are not perpetual and can be terminated under certain circumstances. The termination of a treaty means that it ceases to be in force and can no longer be relied upon by the parties. Article 54 of VCLT states that: The termination of a treaty or the withdrawal of a party may take place: (a) in conformity with the provisions of the treaty; or (b) at any time by consent of all the parties after consultation with the other contracting States.  Difference Withdrawal is a voluntary exit by a state. Termination is a mutual or agreed end to a treaty. Suspension is a temporary pause in treaty obligations. Denunciation is a unilateral decision to cease obligations, usually based on treaty provisions.  General aspects The Vienna Convention on the Law of Treaties (VCLT) provides the main framework for the termination of treaties. Article 54 of the VCLT outlines the two main grounds for the termination of a treaty: By consent of all the parties - This means that all the parties to the treaty agree to terminate it. This can be done through a formal exchange of instruments or through an informal agreement between the parties. In accordance with the provisions of the treaty - This means that the treaty itself specifies the conditions under which it can be terminated. This may include provisions for termination upon the occurrence of a specific event, upon the expiration of a fixed period, or upon the consent of all parties except one.  General aspects There are two series of circumstances which can give rise to the termination, suspension or withdrawal from a treaty. 1. Circumstances is based on the will of the parties as manifested in the treaty itself or as crystallized later. “subjective” 2. Circumstances is based on events beyond the intention of the parties, sometimes even contrary to their legitimate expectations. “objective” Circumstances Independent from the Will of the Parties There are a series of external legal facts which trigger a faculty to terminate or suspend the treaty, or allow denunciation. We shall not follow the order of the VCLT but mention first the two most important grounds, before reverting to the more marginal ones.  Material breach (inadimplendi non est adimplendum) Article 60 of the VCLT considers the situation where the treaty is gravely breached by one party. It grants the other parties some remedies under the law of treaties so as to re-establish the affected equilibrium between the parties. If the law-breaker could breach the treaty and continue non-performance without that the other party or parties had a right to suspend or terminate the treaty, it would follow that: (i) the law-breaker could profit from its own wrong; (ii) the aggrieved party would have to continue to perform the treaty while the other party did not, which would create a grave disequilibrium.  Material breach (inadimplendi non est adimplendum) Article 60 VCLT remedies this situation. It provides that in such situations the aggrieved party or parties may in some circumstances terminate and in other circumstances suspend the treaty. Provisionally, at least, the equilibrium of performance (or better: non-performance) is thus re-established.  Material breach (inadimplendi non est adimplendum) This doctrine states that a material breach of a treaty entitles the other party to the treaty to terminate the treaty. A material breach is a breach that goes to the root of the treaty and deprives the other party of the benefits of the treaty. For example, if one party to a trade treaty fails to open its markets to the other party's goods, this could be considered a material breach of the treaty, and the other party could terminate the treaty. Example: The United States terminated the Iran nuclear deal in 2018 after Iran breached the deal by violating the agreement's restrictions on its nuclear program. Fundamental change of circumstances (rebus sic stantibus doctrines) This doctrine allows a party to terminate a treaty if there has been a fundamental change in circumstances that occurred after the treaty was concluded and that fundamentally alters the basis of the consent of the parties to be bound by the treaty. This doctrine is based on the principle that parties should not be bound by treaties that have become obsolete or that no longer serve their original purpose. For example, if a treaty was concluded to ensure the peaceful use of a border river, and the river dries up, the treaty could be terminated due to a fundamental change of circumstances. Supervening impossibility of performance This doctrine allows a party to terminate a treaty if it becomes impossible for them to perform their obligations under the treaty due to unforeseen circumstances beyond their control. For example, if a treaty requires the parties to provide military assistance to each other in the event of an attack, and one of the parties is invaded by a superpower, the treaty could be terminated due to supervening impossibility of performance. Example: The Warsaw Convention of 1929 was terminated in 1999 due to the development of new technologies that made the convention's provisions obsolete. Jus cogens superveniens This doctrine allows a party to terminate a treaty if a new norm of jus cogens (a peremptory norm of international law) emerges that is incompatible with the treaty. Jus cogens norms are norms that are considered to be fundamental to the international legal order and cannot be derogated from by treaty. For example, if a treaty violates the prohibition of genocide, which is a jus cogens norm, the treaty could be terminated. Example: The United Nations Charter is a jus cogens norm, and any treaty that violates the Charter could be terminated. Severance of diplomatic or consular relations This circumstance can lead to the termination of a treaty if the severance of diplomatic or consular relations between the parties makes it impossible to perform the treaty's obligations. For example, if two countries sever diplomatic relations, they may no longer be able to exchange the documents necessary to enforce a trade treaty. Example: The United States and Cuba severed diplomatic relations in 1961, and this led to the termination of a number of treaties between the two countries