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DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY Subject: PUBLIC INTERNATIONAL LAW Project on: GROUNDS FOR TERMINATION

Subject: PUBLIC INTERNATIONAL LAW

Project on:

GROUNDS FOR TERMINATION OF TREATY

SUBMITTED TO:

SUBMITTED BY:

MR. MANWENDRA KUMAR TIWARI

SHRASTI

SHIVHARE

ASST.PROFESSOR

B.A.LL.B (HONS)SEM 4

RMLNLU

ROLL NO.-131

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ACKNOWLEDGEMENT

  • I would take great pleasure in thanking Assistant Professor Mr. Manwendra Kumar Tiwari for

his infallible support all through the course of this project. This Endeavour would not have been in its present shape had he not been there whenever I needed him. He has been a constant source of support all the while.

Also I would like to extend my sincere thanks to the library staff for always helping me out with finding excellent books and material almost every time I needed. They too have been a constant support system in the completion of this project.

  • I would also like to thank my friends for their timely critical analysis of my work and special feedback that worked towards the betterment of this work.

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TABLE OF CONTENTS

  • 1. Introduction………………………………………………………1

  • 2. Grounds for termination of treaties………………………………2

  • 3. Treaties with no provision for termination, denunciation, or withdrawal…………………………………….5

  • 4. Legal effects of exit…………………………………………… 6 ...

  • 5. Cases…………………………………………………………… 7 ..

  • 6. Conclusion……………………………………………………… 10

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INTRODUCTION

International law has been codified and progressively developed by the conclusion of international treaties, primarily due to the efforts of international law commission. The sustained efforts of the ILC led to the adoption of Vienna Convention on the Law of Treaties on 23 May 1969 by a vote of 80 in favour, one against and 19 abstentions. The convention entered into force on 27 January 1980. India is not even a signatory to the convention although India is guided by the convention. In its preamble, Vienna Convention on the Law of Treaties recognised the ever increasing importance of treaties as a source of international law and as means of developing peaceful cooperation among nations, irrespective of their constitutional and social systems. 1

Vienna convention on the law of treaties, applies to treaties between states. 2 The convention makes it clear that “treaty” means an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. The word treaty covers all forms of international agreements in writing and in between states. This does not mean that other subjects of international law such as international organisations and insurgent communities cannot conclude treaties.

Termination of a treaty means the end of the operation of a treaty, resulting in depriving all the parties of all the rights, and in releasing them from performing further obligations, under the treaty. Under the Vienna Convention termination of a treaty or the withdrawal of a party may take place either in conformity with the provisions of the treaty, or at any time by consent of all the parties after consultation with the other contracting States. Actually, most of the modern treaties contain provisions for their termination or for the withdrawal of a party. A treaty may provide that it shall come to an end automatically after a certain time, or at the occurrence of a particular event. A treaty may give a party a right to withdraw from it after giving a certain period of notice. 3

  • 1 Gurdip Singh, International law 215-216 (3d ed. 2015).

  • 2 Vienna convention on the law of treaties (VCLT), 1969, Art. I.

  • 3 Dr. Walid Abdul Rahim, The Law of Treaties ( Mar. 17, 2017)

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GROUNDS FOR TERMINATION OF TREATIES

It is helpful to begin with a definition of key terms. Denunciation and withdrawal are used interchangeably to refer to a unilateral act by which a nation that is currently a party to a treaty ends its membership in that treaty. In the case of multilateral agreements, denunciation or withdrawal generally does not affect the treaty’s continuation in force for the remaining parties. For bilateral agreements, in contrast, denunciation or withdrawal by either party results in the termination of the treaty for both parties. The termination of a multilateral agreement occurs when the treaty ceases to exist for all States parties. 4

  • a) Pacta sunt servanda

The Vienna convention prescribes a certain presumption as to the validity and continuance in force of a treaty, and such a presumption may be based upon pacta sunt servanda as a general principle of international law: a treaty in force is binding upon the parties and must be performed by them in good faith. 5

  • b) State succession

Treaties may be affected when one state succeeds wholly or in part to the legal personality and territory of another. The conditions under which the treaties of the latter survive depend on many factors, including the precise form and origin of the succession and the type of treaty concerned. Changes of this kind may of course terminate treaties apart from categories of state succession. 6

  • c) War and armed conflict

Hostile relations do not automatically terminate treaties between the parties to a conflict. Many treaties, including the charter of the United Nations, are intended to be no less binding in case of war, and multipartite law making agreements such as Geneva conventions of 1949 survive war or armed conflict. However, in state practice many types of treaties are regarded as at least suspended in time of war, and war conditions may lead

  • 5 Ian Brownlie, Principles of public international law 620 (7h ed. 2008).

  • 6 Ibid.

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to

termination

of treaties on

grounds

of

impossibility

or

fundamental

change

in

circumstances.

 
  • d) Termination by agreement

Termination or withdrawal may take place by consent of all parties. Some consent may be implied. In particular a treaty may be considered terminated if all the parties conclude a later treaty which is intended to supplant the earlier treaty or if the later treaty is incompatible with its provisions. The topic of ‘desuetude’ is essentially concerned with discontinuance of use of a treaty and its implied termination by consent. However, it could extend to the distinct situation of a unilateral renunciation of rights under a treaty. Moreover irrespective of the agreement of the parties, an ancient treaty may become meaningless and incapable of practical application.

  • e) Material breach

It is widely recognised that material breach by one party entitles the other party or parties to a treaty to invoke the breach as the ground of termination or suspension. This option by the wronged party is accepted as a sanction for securing the observance of treaties. However considerable uncertainty has surrounded the precise circumstances in which such right of unilateral abrogation may be exercised particularly in respect of multilateral treaties. A state may by its own conduct prejudice its right to terminate a treaty on the ground of material breach.

  • f) Supervening impossibility of performance

The Vienna convention provides that a party may invoke the impossibility of performing a treaty as a ground for terminating it if the impossibility results from the permanent disappearance or destruction of an object indispensible for the execution of the treaty. Situations envisaged include the submergence of an island, the drying up of a river, or destruction of a railway by an earthquake or other disaster. The effect of impossibility is not automatic, and a party must invoke the ground for termination.

  • g) Fundamental change of circumstances

A basis for termination or suspension of treaty obligations based on a radical transformation of the extent of such obligations brought about by an unforeseen change of circumstances which constituted an essential basis of the party’s consent to the treaty. 7

An example of fundamental change would be the case where a party to a military and political alliance, involving exchange of military and intelligence information, has a change of government incompatible with the basis of alliance. The majority of modern writers accept the doctrine of rebus sic stantibus which is reflected in this provision. The doctrine involves the implication of a term that the obligations of an agreement would end

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if there has been change of circumstances. As a municipal system, so in international law it is recognised that the changes frustrating the object of an agreement and apart from actual impossibility may justify its termination. 8

  • h) New peremptory norm 9 A treaty becomes void if it conflicts with a peremptory norm of general international law (jus cogens) established after the treaty comes into force. This does not have retroactive effects on the validity of a treaty.

  • 8 Ian Brownlie, Principles of public international law 623 (7h ed. 2008).

  • 9 Ibid.

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TREATIES WITH NO PROVISION FOR TERMINATION, DENUNCIATION, OR WITHDRAWAL

The most important—and the most controversial—of these exit default rules is Article 56(1) of the VCLT, which provides that a treaty that contains no provisions for termination, denunciation, or withdrawal ‘is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty’. 10 Article 56(2), in turn, requires twelve months’ notice before a withdrawal or denunciation effectuated pursuant to either of these clauses takes effect.

Article 56 reflected an uneasy compromise among the members of the International Law

Commission (ILC) as to whether States may exit from treaties that do not contain an express denunciation or withdrawal clause. In his 1957 report to the ILC, Sir Gerald Fitzmaurice wrote that such treaties should be assumed to be of ‘indefinite duration, and

only terminable

. . .

by mutual agreement on the part of all the parties’.

A recent and high profile dispute involving Article 56 of the VCLT concerns North Korea’s attempt to denounce the International Covenant on Civil and Political Rights (ICCPR) in 1997. In response to the State’s action, the UN Human Rights Committee (HRC) issued a General Comment concluding that the ICCPR was not capable of denunciation or withdrawal. Tracking Article 56’s two-part inquiry, the Committee first explained that the absence of an exit clause was not an oversight, inasmuch as the ICCPR’s First Optional Protocol and other contemporaneously negotiated human rights conventions expressly provided for withdrawal. It then reasoned that the rights protected by the ICCPR ‘belong to the people living in the territory of the State party’ and cannot be divested by changes in government or State succession. As a result, the treaty ‘does not have a temporary character typical of treaties where a right of denunciation is deemed to be admitted, notwithstanding the absence of a specific provision to that effect’. 11

  • 10 VCLT Art 56(1).

  • 11 Laurence R Helfer, Terminating Treaties (Mar. 15, 2017)

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THE LEGAL EFFECTS OF EXIT

In addition to providing default exit rules for treaties that lack express exit provisions, the VCLT sets forth important principles concerning the legal consequences of exit. Article

70 provides that ‘the termination of a treaty under its provisions or in accordance with the

present Convention

. . .

releases the parties from any obligation further to perform the

treaty’. 12 Termination does not, however, ‘affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to’ the date that the termination takes effect. 13 Nor does it ‘impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty’ 14 —an implicit reference to customary international law. These limitations are equally applicable to a State that unilaterally withdraws from or denounces a multilateral treaty.

These rules function as a deterrent to exit. As explained below, the overwhelming majority of denunciation and withdrawal clauses require prior notice to other treaty parties. Notice is also required when a State asserts a basis for terminating or withdrawing from a treaty pursuant to the VCLT. 15 During the notice period, the legal obligations of all States parties—including the nation that seeks to withdraw from or terminate the agreement—continue unabated. States also remain responsible for any breaches that occur prior to or during the notice period, a responsibility that survives the State’s withdrawal or the treaty’s end. Taken together, these provisions restrict States from using exit to avoid accountability for past violations of international law. They also discourage

  • 12 VCLT Art 70(1)(a).

  • 13 Ibid Art 70(1)(b).

  • 14 Ibid Art 43.

  • 15 Ibid Art 65(1).

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precipitous and opportunistic withdrawals in which a State seeks to exit and then immediately violate a rule that it previously accepted as binding.

CASES

GABCIKBVO-NAGYMAROS PROJECT (HUNGARY/SILOVAKIA)

Judgment of 25 September 1997

History of the dispute

The Court recalls that the present case arose out of the signature, on 16 September 1977, by the Hungarian People's Republic and the Czechoslovak People's Republic, of a treaty "concerning the construction and operation of the Gabcikbvo-Nagymaros System of Locks" (hereinafter called the "1977 Treaty"). The names of the two contracting States have varied over the years; they are referred to as Hungary and Czechoslovakia. The 1977 Treaty entered into force on 30 June 1978. It provides for the construction and operation of a System of Locks by the parties as a "joint investment". According to its Preamble, the system was designed to attain "the broad utilization of the natural resources of the Bratislava-Budapest section of the Danube River for the development of water resources, energy, transport, agriculture and other sectors of the national economy of the Contracting Parties".

The 1977 Treaty describes the principal works to be constructed in pursuance of the Project. It provided for the building of two series of locks, one at Gabcikovo (in Czechoslovak territory) and the other at Nagymaros (in Hungarian territory), to constitute "a single arid indivisible operational system of works".

As a result of intense criticism which the Project had generated in Hungary, the Hungarian Government decided on 13 May 1989 to suspend the works at Nagymaros pending the completion of various studies which the competent authorities were to finish

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before 31 July 1989. During this period, negotiations took place between the parties. Czechoslovakia also started investigating alternative solutions. One of them, an alternative solution subsequently known as "Variant C", entailed a unilateral diversion of the Danube by Czechoslovakia on its territory some 10 kilometres upstream of Dunakiliti. Discussions continued between the two parties but to no avail, and, on 19 May 1992, the Hungarian Government transmitted to the Czechoslovak Government a Note Verbale terminating the 1977 Treaty with effect from 25 May 1992. On 15 October 1992, Czechoslovakia began work to enable the Danube to be closed and, starting on 23 October, proceeded to the damming of the river. 16

Judgment

In its Judgment in the case concerning Gabcikovo Nagymaros Project (Hungary- Slovakia), the Court found that Hungary was not entitled to suspend and subsequently abandon, in 1989, its part of the works in the dam project, as laid down in the treaty signed in 1977 by Hungary and Czechoslovakia and related instruments; it also found that Czechoslovakia was entitled to start, in November 1991, preparation of an alternative provisional solution, but not to put that solution into operation in October 1992 as a unilateral measure; that Hungary's notification of termination of the 1977 Treaty and related instruments on 19 May 1992 did not legally terminate them (and that they are consequently still in force and govern the relationship between the Parties); and that Slovakia, as successor to Czechoslovakia became a party to the Treaty of 1977.

Fundamental change of circumstances

In the Court's view, the prevalent political conditions were not so closely linked to the object and purpose of the Treaty that they constituted an essential basis of the consent of the parties and, in changing, radically altered the extent of the obligations still to be performed. The same holds good for the economic system in force at the time of the conclusion of the 1977 Treaty. Nor does the Court consider that new developments in the state of environmental knowledge and of environmental law can be said to have been completely unforeseen. What is more, the formulation of Articles 15, 19 and 20 is designed to accommodate change. The changed circumstances advanced by Hungary are thus, in the Court's view, not of such a nature, either individually or collectively, that their effect would radically transform the extent of the obligations still to be performed in order to accomplish the Project.

Material breach of the Treat

Hungary's main argument for invoking a material breach of the Treaty was the construction and putting into operation of Variant C. The Court pointed out that it had already found that Czechoslovakia violated the Treaty only when it diverted the waters of the Danube into the bypass canal in October 1992. In constructing the works which would

16(Mar. 17, 2017, 22:21 PM), http://www.icj-cij.org/docket/files/92/7377.pdf.

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lead to the putting into operation of Variant C, Czechoslovakia did not act unlawfully. In the Court's view, therefore, the notification of termination by Hungary on 19 May 1992 was premature. No breach of the Treaty by Czechoslovakia had yet taken place and consequently Hungary was not entitled to invoke any such breach of the Treaty as a ground for terminating it when it did. 17

FISHERIES JURISDICTION (UNITED KINGDOM V. ICELAND) I.C.J., 1973 I.C.J. 3

History of the dispute

Iceland’s claim to a 12-mile fisheries limit was recognized by the United Kingdom in 1961 in return for Iceland’s agreement that any dispute concerning Icelandic fisheries jurisdiction beyond the 12-mile limit be referred to the International Court of Justice. An application was filed before the I.C.J. when Iceland proposed to extend its exclusive fisheries jurisdiction from 12 to 50 miles around its shores in 1972. By postulating that changes in circumstances since the 12-mile limit was now generally recognized was the ground upon which Iceland stood to argue that the agreement was no longer valid. Iceland also asserted that there would be a failure of consideration for the 1961 agreement. 18

Judgment

The court stated “in order that a change of circumstances may give rise to a ground for invoking the termination of a treaty it is also necessary that it should have resulted in a radical transformation of the extent of the obligation still to be performed. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that originally undertaken.” 19

The court did not regard that condition as satisfied.

  • 19 Ibid.

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CONCLUSION

This project has analysed the different mechanisms that States invoke to end their treaty- based relationships, including express termination, denunciation, and withdrawal clauses and the default rules provided by the VCLT. In closing, it is important to stress that treaty exit clauses do not exist in a vacuum. Rather, they operate in tandem with other flexibility devices—such as reservations, amendment rules, escape clauses, and renegotiation provisions—that treaty-makers use to manage risk. Termination, denunciation, and withdrawal clauses are tools for managing risk—a pervasive feature of international affairs. These ‘exit’ provisions share a distinctive attribute: they authorize one treaty member acting unilaterally or all treaty parties acting collectively to end their obligations under an international agreement. 20

The relationship among these flexibility tools has long been a concern of government officials and commentators interested in improving the treaty-making process. It would be useful to link these studies to recent scholarship analysing the form and substance of international agreements. Such research might consider how States select from among a diverse array of flexibility mechanisms, and how they actually exercise the mechanisms available to them.

20 Laurence R Helfer, Terminating Treaties (Mar. 15, 2017)

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