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Max Planck Encyclopedia of Public International Law [MPEPIL]

Treaties, Fundamental Change of Circumstances

Wolff Heintschel von Heinegg

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 21 May 2019

Subject(s):
Customary international law — State practice — Treaties, fundamental change of circumstances — Vienna Convention on the Law of Treaties

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Article 62 of the 1969 Vienna Convention on the Law of Treaties

Art. 62 (1) Vienna Convention on the Law of Treaties (1969) (‘VCLT’) provides that, as a general rule, a fundamental change of circumstances, even if not foreseen by the parties, ‘may not be invoked as a ground for terminating or withdrawing from the treaty’ (Treaties, Termination). Hence, the principle of pacta sunt servanda prevails unless the treaty’s ‘stipulations come to place an undue burden on one of the parties as a result of a fundamental change of circumstances’ (1966 YBILC 258 para. 6). This is the case if the following conditions are cumulatively met:

  1. a)  the said circumstances must have existed at the time of the conclusion of the treaty;

  2. b)  the change was not foreseen by the parties;

  3. c)  the change of those circumstances must be fundamental;

  4. d)  the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

  5. e)  the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

The object and purpose of this exception to the principle of pacta sunt servanda has been identified by the International Law Commission (ILC) as follows: ‘if the other party were obdurate in opposing any change, the fact that international law recognized no legal means of terminating or modifying the treaty otherwise than through a further agreement between the same parties might impose a serious strain on the relations between the States concerned; and the dissatisfied State might ultimately be driven to take action outside the law’ (1966 YBILC 258 para. 6).

While the VCLT, thus, recognizes the clausula rebus sic stantibus (‘clausula’) as one of the permissible grounds for the unilateral termination or suspension of a treaty (Treaties, Suspension), the restrictive wording of Art. 62 as well as its exceptional character are to be considered sufficient safeguards against all endeavours to abuse the clausula for political or other reasons not recognized by international law. Moreover, the parties to the VCLT are obliged to observe the procedural rules laid down in Arts 65–68.

B.  The Clausula and Customary International Law

1.  Introduction

The ILC, in its commentary on Art. 59 1966 Draft Articles on the Law of Treaties (now Art. 62 VCLT), maintains that ‘[a]lmost all modern jurists, however reluctantly, admit the existence in international law of the principle…which is commonly spoken of as the doctrine of rebus sic stantibus’ (1966 YBILC 257 para. 1). According to the ILC, the ‘evidence of the principle in customary law is considerable’ (ibid; Customary International Law). However, the dispute over the question of whether these findings are correct has certainly not ended. Rather, the following examples of State practice have served both opponents as well as supporters of the clausula. Until the second half of the 20th century—despite the ILC’s allegations to the contrary—there was no consensus among States and among international lawyers on the customary character of the clausula. This only changed after the adoption of the VCLT and its entry into force in 1980.

2.  State Practice

(a)  Early State Practice

St. Helena Case: In Art. 3 (3) United Kingdom Commerce and Navigation Treaty of 3 July 1815, Great Britain had agreed that ‘the vessels of the United States may also touch, for refreshments, but not for commerce, in the course of their voyage to or from the British territories or…the Island of St. Helena’. After Napoleon had been exiled to the island the British government, prior to the exchange of ratifications on 24 November 1815, claimed that ‘[i]t has therefore, become impossible to comply with so much of the third Article of the Treaty as relates to the liberty of touching for refreshment at the Island of St Helena, and the Ratifications of the said Treaty will be exchanged under the explicit Declaration and Understanding that the Vessels of the United States cannot be allowed to touch at, or hold any communication whatever with the said Island, so long as the said Island shall continue to be the place of residence of the said Napoleon Buonaparte’ (H Miller [ed] Treaties and Other International Acts of the United States of America [United States Government Printing Office Washington 1931] vol 2, 599). Six years later, after Napoleon’s death, Great Britain informed the US government that from that date the 1815 treaty had become fully operable.

Lusatia Case: In the beginning of the 19th century the Kingdom of Saxony repudiated the continued legal validity of the peace accord concluded in Prague on 30 May 1635. Saxony based its claim on the change of circumstances brought about by the dismemberment of the Holy Roman Empire (800–1806) (Dismemberment of States), the ensuing sovereignty of the former parts of the Empire, and on its membership in the Confederation of the Rhine. Austria strongly objected and maintained that the political shifts had had no impact on the 1635 accord. The dispute was settled by the treaty of 9 May 1845. However, both parties did not, in principle, abandon their original positions.

Case of the Succession to the Danish Throne: Prussia and Austria, in the course of the peace deliberations with Denmark following the Danish-Prussian War of 1864, declared that the London Protocol of 1852 concerning succession to the Danish throne was no longer binding: ‘ … mais que, la situation étant changée depuis, les Puissances Allemandes doivent se réserver toute liberté quant aux bases de la discussion’ (C Samwer and J Hopf [eds], Martens Nouveau Recueil Général de traités, conventions et autres transactions remarquables, servant à la connaissance des relations étrangères des puissances et états dans leurs rapports mutuels [reprinted ed Kraus-Thomson Organization Limited Nendeln 1975] Series I vol 20, 698). However, neither Prussia nor Austria elaborated on the question of which circumstances they considered relevant. Therefore, the French delegate stated: ‘Admettez une fois dit-il, qu’il est de la compétence de chaque Puissance, sous un prétexte quelconque et à sa convenance, de rompre les engagements solennels d’un traité, le droit international de l’Europe serait bouleversé: il n’aurait ni force ni autorité’ (ibid 358).

Pontus Case: In October 1870, Russia denounced the so-called Black Sea clauses of the Paris Peace Treaty (1856). Arts 11, 13, and 14 Paris Peace Treaty prohibited the establishment of naval bases and strictly limited the number of warships in the Black Sea area. Russia, inter alia, referred to a fundamental change of circumstances. Although this fait accompli was ultimately recognized by the 1871 London Conference, it is far from clear whether the Russian denunciation was recognized as valid under public international law. While Austria and Italy did not challenge Russia’s reliance on the clausula but merely questioned its relevance for the particular case, the United Kingdom (‘UK’) emphasized the principle of pacta sunt servanda as well as Art. 14 Paris Peace Treaty which prohibited the unilateral denunciation or modification of the contractual obligations (see also Unilateral Acts of States in International Law). Moreover, prior to the beginning of the London Conference, the participants concluded a Protocol in which they agreed as follows: ‘Les Plénipotentiaires…reconnaissent que c’est un principe essentiel du droit des gens qu’aucune Puissance ne peut se délier des engagements d’un Traité, ni en modifier les stipulations, qu’à la suite de l’assentiment des Parties Contractantes, au moyen d’une entente amicale’ (GF de Martens, C Samwer and J Hopf [eds] Nouveau recueil général de traités, conventions et autres transactions remarquables, servant à la connaissance des relations étrangères des puissances et états dans leurs rapports mutuels [reprinted ed Kraus-Thomson Organization Limited Nendeln 1975] Series I vol 18, 278). Finally, President Granville stated at the conference that, ‘la Conférence a été accepté par les Puissances…de discuter…les propositions que la Russie désire nous faire par rapport à la révision qu’elle demande des stipulations…’ (ibid 274 and 275).

Clayton-Bulwer Treaty Case: In the Convention Between the United States of America and Her Britannic Majesty (‘Clayton-Bulwer Treaty’) of 19 April 1850, the US and Great Britain had agreed that neither party would exercise exclusive control over any canal that was to be built either in Nicaragua or in Panama (Panama Canal). Moreover, the canal was to be permanently neutralized (Neutralization). In 1879, when plans to build the canal materialized, US President Hayes declared that ‘the policy of this country is a canal under American control’ (JB Moore [ed] Digest of International Law [Gov Print Off Washington 1906] vol 3, 188). In response to British claims based on the 1850 agreement, US Secretary Blaine claimed that ‘the treaty was made more than thirty years ago, under exceptional and extraordinary circumstances which have long ceased to exist, conditions which at best were temporary in their nature and which can never be reproduced’ (RB Mowat The Diplomatic Relations of Great Britain and the United States [Longmans Green & Co New York 1925] 226). This was rejected by Lord Granville who, in January 1882, emphasized that ‘the Treaty of 1850 was concluded (as is declared in the 8th article) with the desire not only to accomplish a particular object, but also to establish a general principle’ (ibid 229). The British position was recognized in an internal memorandum prepared by US Secretary Olney in 1896: ‘[U]pon every principle which governs the relations to each other, either of nations or individuals, the United States is completely estopped from denying that the treaty is in full force and vigor. If changed conditions now make stipulations, which were once deemed advantageous, either inapplicable or injurious, the true remedy is not in ingenious attempts to deny the existence of the treaty or to explain away its provisions, but in a direct and straightforward application to Great Britain for a reconsideration of the whole matter’ (JB Moore [ed] Digest of International Law [Gov Print Off Washington 1906] vol 3, 209). In 1901, the Clayton-Bulwer Treaty was replaced by the Hay-Pauncefote Treaty.

10  The Batum Case relates to the successful Russian attempt unilaterally to abrogate Art. 59 Treaty Between Great Britain, Austria-Hungary, France, Germany, Italy, Russia and Turkey (‘1878 Treaty of Berlin’; Berlin Congress [1878]) according to which Batum had been declared a free-port (Free Ports). In its memorandum of 1886 Russia claimed: ‘Les avantages que cette promesse avait alors en vue d’assurer aux états signataires semblent désormais écartées de la question, car avec la suppression du transit du Caucase, Batoum a perdu toute sa valeur comme entrepôt pour les produits autrefois échangés par cette voie entre les États d’Europe et la Perse et n’a conservé que le caractère d’un port d’importation’ (GF de Martens, C Samwer and J Hopf [eds] Nouveau recueil général de traités, conventions et autres transactions remarquables, servant à la connaissance des relations étrangères des puissances et états dans leurs rapports mutuels [reprinted ed Kraus-Thomson Organization Limited Nendeln 1975] Series I vol 17 II, 171). Seemingly, the States Parties to the 1878 Treaty of Berlin acquiesced in the Russian claim.

11  Case of the Austro-Hungarian annexation of Bosnia: On 6 October 1908, Austria-Hungary declared itself absolved from Art. 25 1878 Treaty of Berlin and extended its sovereignty to Bosnia-Herzegovina. The Austrian emperor justified that step with the necessity of preserving the achievements of the administration of the territory that had lasted for 30 years and by reference to the changed situations in Serbia and in Turkey. Apart from France and Germany, the other States Parties—Turkey, Russia, Serbia and the UK—initially rejected the Austrian claim by filing strong protests. However, against the background of the unstable situation in the Balkans and in order to prevent a major war the parties, by exchange of diplomatic notes (Diplomatic Communications, Forms of), finally agreed on the nullification of Art. 25 1878 Berlin Treaty. Still, the majority of the parties either considered the Austrian conduct a breach of the 1878 Berlin Treaty or they maintained that any modification of an international treaty presupposed the consent of all States Parties.

(b)  Post-World Wars I and II Practice

12  Case of the Sino-Belgian Treaty of Commerce: In the bilateral treaty of commerce of 2 May 1865, China had granted Belgium extraterritorial rights. After the end of World War I, Chinese efforts to disengage from these commitments were in vain. Hence, it unilaterally declared the treaty terminated by referring to the fundamental political, social and economic changes that had taken place since the conclusion of the treaty. Belgium, submitting the case to the Permanent Court of International Justice (PCIJ), did not reject the clausula as such. It maintained, however, that a unilateral invocation without prior efforts to reach a consensual solution was not in accordance with Art. 19 Covenant of the League of Nations (‘League Covenant’; adopted 28 April 1919, entered into force 10 January 1920; 112 BFSP 13).

13  Examples of States relying on either Art. 19 League Covenant or the clausula include: the Russian Revolution of October 1917; Bolivia and Peru in 1921; the abrogation of the capitulatory regimes (Consular Jurisdiction); the non-payment of inter-Allied war debts; and the partial denunciations of declarations under Art. 36 Statute of the PCIJ by members of the British Commonwealth and France after the outbreak of World War II.

14  Load Line Convention Case: On 9 August 1941, US President Roosevelt suspended the 1930 Load Line Convention by referring to changed circumstances brought about by the outbreak of World War II that gave the US ‘an unquestioned right and privilege under approved principles of international law’ (cf HW Briggs ‘The Attorney General Invokes Rebus Sic Stantibus’(1943) 36 AJIL 89). The US President had been advised by the Attorney General as follows: ‘It is a well-established principle of international law, rebus sic stantibus, that a treaty ceases to be binding when the basic conditions upon which it was founded have essentially changed. Suspension of the convention in such circumstances is the unquestioned right of a state adversely affected by such essential change’ (JT Fowler (ed) Official Opinions of the Attorneys General of the United States advising the President and Heads of Departments in Relation to Their Official Duties [US Government Printing Office Washington 1949] vol 40, 121 and 122.) With regard to the procedure to be observed the Attorney General added that ‘ordinarily the procedure would call for the Government to inform the other parties to the treaty with respect to the matter and request agreement for termination or suspension of the treaty. The matter of procedure, however, does not affect the right of termination or suspension’ (ibid 123).

15  After the end of World War II the clausula was relied upon—albeit not unanimously—with regard to the continued validity of the Treaty of Alliance Between His Majesty, in Respect of the United Kingdom, and His Majesty the King of Egypt (‘1936 Anglo-Egyptian Treaty’), of the Convention Instituting the Definitive Statute of the Danube (‘1921 Danube Convention’; Danube River) and of the 1928 General Act of Arbitration for the Pacific Settlement of International Disputes (Peaceful Settlement of International Disputes).

16  It is important to note, however, that the UN Secretary-General (United Nations, Secretary-General), in an advisory opinion on the continued validity of the post-1919 minorities treaties, held that ‘[i]nternational law recognizes that in some cases an important change of the factual circumstances from those under which a treaty was concluded may cause that treaty to lapse. In such cases the clause rebus sic stantibus applies if invoiced by the Governments’ (Report of the Secretary-General ‘Study on the Legal Validity of the Undertaking concerning Minorities’(1950) UN Doc E/CN.4/367, 36). With regard to the preconditions for an invocation of the clausula the Secretary-General held: ‘In the first place it is necessary that certain factual conditions which existed at the moment of the conclusion of the treaty and in the absence of which the parties would not have concluded that treaty, should have disappeared. In the second place, the new circumstances should differ substantially from those which existed at the time when the treaty was concluded, so as to render its application morally and politically impossible’ (ibid 37). According to the Secretary-General, the minorities regimes established in the framework of the League of Nations had to be considered as having ceased to exist in view of the change of circumstances that had occurred in the period between 1939 and 1947 (see also Minorities, International Protection; Minority Protection System between World War I and World War II).

17  Finally, it is worth mentioning that the majority of States Parties to the VCLT have accepted Art. 62 VCLT without reservations (Treaties, Multilateral, Reservations to). Only four States—Afghanistan, Morocco, Oman, Syria—are unwilling to apply Art. 62 (2)(a) VCLT to unequal treaties (Treaties, Unequal) or to treaties incompatible with the right to self-determination. However, Argentina and Chile have expressly declared that they are unwilling to accept the idea that a fundamental change of circumstances may be invoked as a ground for terminating or withdrawing from the treaty (Multilateral Treaties Deposited with the Secretary-General, Part I ‘Vienna Convention on the Law of Treaties’ Status at 31 December 2004, [II] Art. 62 VCLT chapter XXIII 1 352–53).

3.  International Courts

18  In the case of the Nationality Decrees in Tunis and Morocco (1923) (Nationality Cases before International Courts and Tribunals) and the Free Zones of Upper Savoy and Gex Case (1929–32) the PCIJ referred to the clausula, without, however, clarifying its customary character. In the latter case the court saw no evidence for the French allegations and was thus absolved from examining whether ‘cette théorie peut être considérée comme constituant une règle de droit international’ (PCIJ Series AB No. 46, 157).

19  In the Fisheries Jurisdiction Cases (United Kingdom v Iceland; Federal Republic of Germany v Iceland) (‘Fisheries Jurisdiction Cases’) (the International Court of Justice (ICJ) held that ‘Article 62 of the Vienna Convention on the Law of Treaties…may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances’ ([1973] ICJ Rep 3 para. 36; and ICJ Rep 49 para. 36). In the Gabčíkovo-Nagymaros Case (Hungary/Slovakia) (‘Gabčíkovo-Nagymaros Case’) the court re-emphasized that statement (at para. 104). Unfortunately, the court did not specify which parts of Art. 62 it considered customary in character.

20  Finally, the European Court of Justice (‘ECJ’) in its judgment of 16 June 1998, held that it is ‘possible to contemplate the termination or suspension of an agreement by reason of a fundamental change of circumstances, customary international law, as codified in Article 62(1) of the Vienna Convention’ (A Racke GmbH & Co v Hauptzollamt Mainz [‘Racke Case’] para. 53); European Communities, Court of Justice [ECJ] and Court of First Instance [CFI]).

4.  International Law Doctrine

21  The transfer of the clausula from civil law into public international law is generally attributed to Gentilis (De iure belli libri tres) who regarded the continuing existence of circumstances an implied clause of all treaties. Grotius was less favourable to the clausula but allowed for a number of exceptions (at De iure belli ac pacis libri tres [JB Scott ed Oceana New York 1964 vol II Translation] Book II Chapter XVI, Secs XXV–XXIX). Bynkershoek rejected it altogether and held that a ‘promise must be kept even when its observance is not expedient to the state, nay even when it is dangerous’ (at Quaestionum iuris publici libri duo [Book II JB Scott Clarendon Press Oxford 1930 vol 2 Translation] Book II Chapter X 255). Still, this did not prevent the clausula from becoming a recognized ground for terminating a treaty. Vattel who, like Gentilis, characterized the clausula an implied treaty clause, finally leveraged the slowly growing acceptance of the fundamental change of circumstances as a ground for terminating a treaty. While he urged that ‘il faut être très réservé dans l’usage de la présente Règle’ (at Le droit des gens ou principes de la loi naturelle [London 1758] 491), he declared the clausula applicable ‘s’il est certain et manifeste que la considération de l’état présent des choses est entrée dans la raison qui a donnée lieu à la promesse; que la promesse a été faite en considération, en conséquence de cet état des choses; elle dépend de la conservation des choses dans la même état’ (ibid 490).

22  In the 19th and at the beginning of the 20th century doctrine adopted a positivist approach (Legal Positivism). Accordingly, assertions of a permanent legally binding force of international agreements were rejected as incompatible with the right of self-preservation of States (G Jellinek Die rechtliche Natur der Staatenverträge. Ein Beitrag zur juristischen Construction des Völkerrechts [Hoelder Wien 1880]; A Rivier Lehrbuch des Völkerrechts [Enke Stuttgart 1889]; Kaufmann). Nonetheless, the clausula was strongly rejected by others (eg H Triepel Völkerrecht und Landesrecht [Hirschfeld Leipzig 1899]) who pointed at the potential of it being abused for mere political reasons.

23  With the establishment of the League of Nations legal writers began to emphasize the importance of peaceful change. Still, this did not result in a general rejection of the clausula. Hence, there was no consensus on whether Art. 19 League Covenant was a reception, by way of treaty, of the pre-existing clausula or whether it was evidence of a clear rejection of the clausula. Although international doctrine continued to provide rather diverse views on the clausula’s relevance to international law, it found its way into the 1935 Harvard Draft Convention on the Law of Treaties and, after the end of World War II, into the work of the International Law Commission.

24  Since the adoption of the VCLT and in view of the jurisprudence of the ICJ, the number of those remaining sceptical vis-à-vis the customary character of the clausula seems to be decreasing gradually. For example, the American Law Institute, in the Restatement of the Law Third: The Foreign Relations Law of the United States (‘Restatement of the Law Third’) ([American Law Institute Publishers St. Paul, Minn 1986] vol 1, para. 336), while referring to Art. 62 VCLT, recognizes the clausula as an accepted ground for terminating a treaty although the United States has not become a party to the convention.

5.  Conclusions

25  Since the times of Hugo Grotius the clausula has been one of the most disputed issues of public international law. The inclusion of the clausula into the VCLT has certainly contributed to a wider acceptance of that ground for terminating a treaty. State practice, the jurisprudence of international courts (International Courts and Tribunals) and the still growing number of international scholars accepting the clausula seem to justify the conclusion that—despite the continued caution in parts of legal doctrine—a fundamental change of circumstances may give rise to a unilateral denunciation (or suspension; Treaties, Suspension) of a treaty under customary international law. This certainly holds true if and in so far as the rather strict conditions laid down in Art. 62 (1) VCLT are met.

26  While the elements contained in Art. 62 (1) and (2) (b) VCLT by and large can be regarded customary in character, this is probably not the case with regard to Art. 62 (2) (a) VCLT, although only four States Parties have filed reservations to that provision. The rules of the VCLT on the procedure to be observed under its Art. 66 are merely contractual in view of the fact that 19 States Parties are not prepared to be bound by it.

C.  Nature

27  Interestingly, both proponents of natural law (Natural Law and Justice) as well as of positivism, although with distinct arguments, characterized the clausula as an implied clause of every treaty, ie they advocated a subjective approach. Accordingly, it would be inevitable to establish the implied intention of the parties to the treaty concerned by way of interpreting it in accordance with the generally recognized rule laid down in Art. 31 VCLT (Interpretation in International Law; Treaties, Interpretation of). In most cases the clausula would, thus, be to no avail. As the change must be fundamental, unforeseen and of radical effects with regard to the further performance of the treaty, it is hardly discernible how the interpretation of the treaty could result in a reliable establishment of the parties’ implied intentions. Moreover, if the subjective approach were applicable, this would increase the risk of subjective interpretations and abuse. ‘For this reason, the Commission was agreed that the theory of an implied term must be rejected and the doctrine formulated as an objective rule of law by which, on grounds of equity and justice, a fundamental change of circumstances may, under certain conditions, be invoked by a party as a ground for terminating the treaty’ (1966 YBILC 258 para. 7). Hence, in the VCLT the clausula appears not under the topic ‘interpretation’, but in that on the ‘invalidity, termination and suspension’ of treaties (Treaties, Validity). In accordance with the objective approach underlying the VCLT, the clausula is, thus, not a special feature of treaty interpretation but rather a ‘substantive principle permitting escape from obligations without regard to the intent of the parties’ (Restatement of the Law Third, para. 336 comment a).

D.  Applicability

28  When it comes to the applicability of the doctrine of a fundamental change of circumstances, three aspects have to be distinguished: first, the principal subsidiarity of the clausula; second, explicit limits; and, third, possible implied limits.

1.  Subsidiarity

29  The restrictive wording of Art. 62 VCLT is clearly indicative of the subsidiary character of the clausula. Accordingly, there is room for its application only and in so far as other grounds for terminating or suspending a treaty—material breach, supervening impossibility of performance—are not fulfilled. There are good reasons for the assumption that impossibility of performance resulting from the disappearance or destruction of an object indispensable for the execution of a treaty would ordinarily constitute a fundamental change of circumstances. It may be added that this would also hold true with regard to a material breach by one party to the treaty. However, impossibility (as well as material breach) has always been regarded as distinct from the clausula, probably because disputes are less likely in case of the disappearance of indispensable objects. Be that as it may, impossibility and material breach are distinct grounds for the termination and suspension of treaties. If they are applicable there is no room for invoking a fundamental change of circumstances.

2.  Explicit Limits

(a)  Exceptions under Art. 62 (2) VCLT

30  Art. 62 (2) VCLT excludes from the operation of the clausula two cases. The first—Art. 62 (2) (a) VCLT—concerns treaties establishing a boundary. The term ‘treaty establishing a boundary’ embraces border agreements, treaties of cession and delimitation agreements but not other agreements establishing territorial status, such as lease agreements. The object and purpose of this exclusion is to preserve the territorial status quo brought into existence by such treaties and to prevent dangerous frictions that may arise from a unilateral denunciation. As already mentioned above, four States Parties to the VCLT have filed reservations by maintaining that ‘this article does not cover unequal and illegal treaties, or any treaties which were contrary to the principle of self-determination’ (Multilateral Treaties Deposited with the Secretary-General Status at 31 December 2004, UN Doc ST/LEG/SER.E/23, [II] Part I chapter XXIII 1 ‘Vienna Convention on the Law of Treaties’, 352 [Afghanistan] 354 [Morocco] 355 [Oman and Syrian Arab Republic]). The ILC has taken the position that self-determination ‘as envisaged in the Charter was an independent principle and that it might lead to confusion if, in the context of the law of treaties, it were presented as an application of the rule contained in the present article. By excepting treaties establishing a boundary from its scope the present article would not exclude the operation of the principle of self-determination in any case where the conditions for its legitimate operation existed.’ (1966 YBILC 259 para. 11.) It may be doubted whether this is the correct view. However, in view of the fact that the decolonization process has come to its end the practical relevance of the relationship between the clausula and the principle of self-determination is at best of minor interest.

31  It may not be left out of consideration that even if the clausula were to apply to a boundary treaty this would be without prejudice to the boundary as such. In the Territorial Dispute Case (Libyan Arab Jamahiriya/Chad) the ICJ held: ‘A boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary. In this instance the Parties have not exercised their option to terminate the Treaty, but whether or not the option be exercised, the boundary remains. This is not to say that two States may not by mutual agreement vary the border between them; such a result can of course be achieved by mutual consent, but when a boundary has been the subject of agreement, the continued existence of that boundary is not dependent upon the continuing life of the treaty under which the boundary is agreed’ ([1994] ICJ Rep 6 para. 73).

32  The second exception—Art. 62 (2) (b) VCLT—provides that a fundamental change may not be invoked if it ‘is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty’. The exceptio doli, ie that a party may not take advantage of its own wrong, is but a substantiation of the principle of good faith (bona fide). As stated by the PCIJ in the Factory at Chorzów Case, it is ‘a principle generally accepted in the jurisprudence of international arbitration, as well as by municipal courts, that one Party cannot avail himself of the fact that the other has not fulfilled some obligation or has had no recourse to some means of redress, if the former Party has, by some illegal act, prevented the latter from fulfilling the obligation in question, or from having recourse to the tribunal which would have been open to him’ (Series A No 9, 31 PCIJ).

(b)  Exceptions under Art. 73 VCLT

33  According to its Art. 73 the VCLT ‘shall not prejudge any question that may arise in regard to a treaty…from the outbreak of hostilities between States’. This does not necessarily imply that the outbreak of hostilities may not be considered a fundamental change of circumstances (Armed Conflict, Effect on Treaties). It merely means that the VCLT disclaims any judgment on the question. In view of the fact that, for example, the US, when suspending the Load Line Convention, considered the outbreak of World War II a fundamental change of circumstances, it may be doubted whether the exception of Art. 73 would also apply to the clausula under customary law. Rather, ‘it is arguable that major hostilities are “changed circumstances” providing a basis for suspending or terminating a treaty’ (Restatement of the Law Third, para. 336, reporters’ notes 4). This position is shared by the ECJ which held in the Racke Case that the outbreak of hostilities in the former Federal Republic of Yugoslavia constituted a fundamental change of circumstances (at para. 56).

3.  Implied Limits?

34  Taking into account the exceptional character of the clausula it is arguable that its applicability should be limited to so-called perpetual treaties, ie to treaties containing no denunciation or termination clause. Indeed, if the parties have expressly provided for the termination of the treaty, this may be understood as an exclusion of the clausula. However, the ILC was not convinced by such reasoning: ‘When a treaty had been given a duration of ten, twenty, fifty or ninety-nine years, it could not be excluded that a fundamental change of circumstances might occur which radically affected the basis of the treaty. The cataclysmic events of the present century showed how fundamentally circumstances may change within a period of only ten or twenty years. If the doctrine were regarded as an objective rule of law founded upon the equity and justice of the matter, there did not seem to be any reason to draw a distinction between “perpetual” and “long-term” treaties’ (1966 YBILC 259 para. 8). Moreover, State practice gives no evidence for a limitation of the clausula to treaties containing no termination or denunciation clause.

E.  Elements

35  The negative formulation in the chapeau of Art. 62 VCLT (‘may not be invoked…unless’) and the restrictive terms used (‘fundamental’, ‘essential’, ‘radical’) are indicative that ‘the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases’ (Gabčíkovo-Nagymaros Case para. 104). It is true that States, when invoking that ground for terminating a treaty, have commonly used less restrictive terms (eg substantive instead of fundamental). Moreover, they have not always claimed that the continuing existence of the changed circumstances had constituted an essential basis of the consent of all the parties to be bound by the treaty. However, the language used in political intercourse is often not as precise as legal language. Hence, the preconditions that have to be fulfilled for an invocation of the clausula are as restrictive under customary international law as they are under Art. 62 VCLT.

1.  Fundamental Change of Circumstances

36  The changed circumstances must have existed at the time of the conclusion of the treaty (Treaties, Conclusion and Entry into Force). This is a question of fact. The same holds true with regard to the fundamental character of the change as well as with regard to the question of whether the parties have not foreseen the change.

37  In this context the question has arisen of whether the subjective change in the attitude or policy of a government would exclude the operation of the clausula. Art. 62 VCLT is silent on that matter. Therefore, a change of political alignment by a government may very well be invoked for terminating a treaty, eg a treaty of alliance (Alliances), if all the conditions for invoking a fundamental change are fulfilled. It may be added that the ICJ in the Gabčíkovo-Nagymaros Case was obviously prepared to accept that the political changes brought about by the fall of the Iron Curtain could lie within the scope of the clausula: ‘The prevailing political situation was certainly relevant for the conclusion of the Treaty’ (at para. 104). The ILC was divided on the question but has ultimately come to the conclusion that ‘the definition of a “fundamental change of circumstances” in paragraph 1 should suffice to exclude abusive attempts to terminate a treaty on the basis merely of a change of policy, and that it was unnecessary to go further into the matter in formulating the article’ (1966 YBILC 259 para. 10).

2.  Continued Existence of Circumstances as an Essential Basis of Consent

38  In order to verify whether the continued existence of the (unchanged) circumstances constituted an essential basis of the consent of the parties to be bound by the treaty it is necessary to establish a close link between those circumstances on the one hand and the object and purpose of the treaty on the other hand. In the Gabčíkovo-Nagymaros Case Hungary maintained that the political situation as well as the economic system had fundamentally changed since the adoption of the Treaty Between the Hungarian People’s Republic and the Czechoslovak Socialist Republic concerning the Construction and Operation of the Gabcikovo-Nagymaros System of Locks. The court, while recognizing the fundamental character of the changed situation, was not prepared to conclude that the continuance of those situations had been essential for the parties’ consent: ‘the Court will recall that the Treaty provided for a joint investment programme for the production of energy, the control of floods and the improvement of navigation on the Danube. In the Court’s view, the prevalent political conditions were thus not so closely linked to the object and purpose of the Treaty that they constituted an essential basis of the consent of the parties’ (at para. 104).

39  In the Racke Case the ECJ considered the continued existence of peace in the former Yugoslavia (see also Yugoslavia, Dissolution of) essential for the performance of the bilateral trade agreement:

[T]he preamble to the Cooperation Agreement states that the contracting parties are resolved ‘to promote the development and diversification of economic, financial and trade cooperation in order to foster a better balance and an improvement in the structure of their trade and expand its volume and to improve the welfare of their populations’ and that they are conscious ‘of the need to take into account the significance of the new situation created by the enlargement of the Community for the organisation of more harmonious economic and trade relations between the Community and the Socialist Federal Republic of Yugoslavia’. Pursuant to those considerations, Article 1 of the Agreement provides that its object ‘is to promote overall cooperation between the contracting parties with a view to contributing to the economic and social development of the Socialist Federal Republic of Yugoslavia and helping to strengthen relations between the parties’. In view of such a wide-ranging objective, the maintenance of a situation of peace in Yugoslavia, indispensable for neighbourly relations, and the existence of institutions capable of ensuring implementation of the cooperation envisaged by the Agreement throughout the territory of Yugoslavia constituted an essential condition for initiating and pursuing that cooperation. (At paras 54 and 55)

3.  Radical Transformation

40  The effect of the change must result in a radical transformation of the extent of obligations still to be performed under the treaty. This is the case, as held by the ICJ in the Fisheries Jurisdiction Cases, if the change has ‘increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that originally undertaken’ ([1973] ICJ Rep 3 para. 43 and ICJ Rep 49 para. 43). Hence, radical transformation does not mean that the further performance of the treaty must have become impossible. However, the court’s findings in the Fisheries Jurisdiction Cases may not be misunderstood as confining the element of radical transformation to cases in which the remaining treaty obligations have nothing in common with the original undertakings. As in the case of the Load Line Convention and in the Racke Case it may well be sufficient that the further application of the treaty is seriously called into question. In other words, a radical transformation can also be affirmed if the change makes it unacceptable, from the point of view of both parties, to comply further with the treaty’s obligations because it has resulted in an undue burden for the party invoking the clausula.

F.  Procedure

41  With a view to the overall importance of the stability of treaties and the security of international relations the parties to the VCLT are under an obligation to observe the specific procedural safeguards set out in Arts 65–8 VCLT. Art. 66 VCLT hardly qualifies as customary in character, since 19 States Parties have excluded its application by filing reservations. However, it is generally recognized that the procedure under Art. 65 VCLT applies ‘with special force where the right to suspend or terminate is claimed on grounds of rebus sic stantibus, since that basis for termination is particularly subject to self-serving and subjective judgments by the state invoking it’ (Restatement of the Law Third, Comment para. 336 comment f). Accordingly, the party that invokes the clausula must notify the other parties of its claim. If, after a reasonable period of time, none of the other parties has raised an objection, the notifying party may carry out the measure it has proposed. If an objection has been raised, the parties must resort to any dispute resolution procedure provided for in the treaty, or, in the absence of such provision, to any other procedure for settlement to which the parties are otherwise committed.

G.  Current Developments

42  As already stated, there is a growing consensus that, under customary international law, the clausula may be invoked if the conditions laid down in Art. 62 VCLT are met. However, recent developments indicate that those conditions are considered too restrictive, especially when security interests are at stake. It would be premature to maintain that the approach adopted by Kaufmann has become generally accepted in State practice. Still, it is evident that a growing number of States are unwilling to rely on either consensual solutions or on the restrictive rules on the suspension or termination of treaties laid down in the VCLT when, according to their view, the existing treaty regime is no longer adequately serving their security interests. Indeed, the conceptual approach underlying, for example, the United Nations Charter, all too often proves ineffective in view of new challenges to international peace and security. Therefore, this development may ultimately result in a far more liberal application of the clausula than envisaged by the VCLT.

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