There are number of ways by which treaties may be terminated or suspended. The methods of termination or suspension of a treaty and its effects are enumerated in Articles 45, 54, 56, 57, 59-62, 70 and 72.
Termination by consent and
by treaty provision
Articles
54 and 57 stipulate that a treaty may be terminated or suspended in conformity
with the provisions of that treaty or at any time by consent of all the parties
after consultation with the other contracting states. Where, however, a treaty
does not contain any provision regarding termination or expressly provide for denunciation
or withdrawal, Article 56 provides that a state may only denounce or withdraw
from that treaty where the parties intended to admit such a possibility or
where such right is implicit by the nature of the treaty.
A
treaty may terminate if its purposes and objects have been fulfilled or if it
is limited in time and that time has elapsed.
Article
58 of the Convention stipulates that two or more parties to a multilateral
treaty may conclude an agreement to suspend the operation of provisions of the
treaty, temporarily and as between themselves alone, if:
(a)
the possibility of such a suspension is provided for by the treaty; or
(b)
the suspension in question is not prohibited by the treaty and:
(i)
does not affect the enjoyment by the other parties of their rights under the
treaty or the performance of their obligations;
(ii)
is not incompatible with the object and purpose of the treaty.
Article
59 of the Convention provides that where the parties to a treaty conclude
another treaty relating to the same subject matter, then the earlier treaty
will be deemed to have been terminated where it appears that the matter is to
be governed by the later agreement or where the provisions of the later treaty
are so incompatible with those of the earlier treaty that the two treaties are
not capable of being applied at the same time.
Termination or suspension
as a consequence of breach
An
obvious corollary to the breach of a treaty is that the party adversely
affected by the breach is entitled to terminate the treaty. However, this right
as in the case of a breach of contract may be waived by the party affected. Where
a breach occurs in a bilateral treaty, the aggrieved state may consider the
breach as a ground for terminating the treaty or suspending its operation
wholly or in part.[1]
Where a material breach occurs in a multilateral treaty the breach entitles the
other parties by unanimous agreement to suspend the operation of the treaty in
whole or in part or to terminate it either in the relations between themselves
and the defaulting state or as between all the parties. Secondly, where a party
is specially affected by the breach, it is entitled to invoke it as a ground
for suspending the operation of the treaty in whole or in part in the relations
between itself and the defaulting state. Article 60 (3) states that a material
breach of a treaty consists in either a repudiation of the treaty not
sanctioned by the Convention or the violation of a provision essential to the
accomplishment of the object or purpose of the treaty. The latter portion of
sub-clause 3 was applied in the Rainbow Warrior Case[2]
where pursuant to an agreement between New Zealand and France (concluded in the
form of exchange of letters) of 9 July 1986, France was under an obligation to
keep two of its agents, guilty of bombing the Greenpeace ship the Rainbow
Warrior in July 1985, on the French military facility island of Hao for a
minimum period of three years was held to have constituted the object or
purpose of the above agreement. France permitted the agents to leave the island
(for medical reasons) before the expiry of the three-year period.
Supervening impossibility
of performance
Where
the performance of a treaty is rendered impossible due to the permanent
disappearance or destruction of an object indispensable for the execution of
the treaty, a party may invoke the provisions of Article 61 and validly
terminate or withdraw from it. If however, the impossibility is temporary, it
may be invoked for suspending the operation of the treaty. If impossibility is
as a result of a breach by a party either of an obligation under the treaty or
of any other international obligation owed to any other party to the treaty,
then impossibility may not be invoked by that party as a ground for
terminating, withdrawing from or suspending the operation of the treaty.
Rebus
sic stantibus or fundamental change of circumstances
The
doctrine rebus sic stantibus is a
principle of customary international law that provides that where a fundamental
change of circumstance has taken place since an agreement was concluded, a
party to that agreement may withdraw from or terminate it. It is essentially an
"escape clause" that makes an exception to the general rule of pacta
sunt servanda – promises must be kept. Article 62 of the Convention
incorporates this principle although this doctrine is never mentioned by name.
Article 62 provides the only two justifications of the invocation of rebus
sic stantibus: first, that the circumstances existing at the time of the
conclusion of the treaty were indeed objectively essential to the obligations
of treaty (sub-paragraph A) and the instance wherein the change of
circumstances has had a radical effect on the obligations of the treaty
(sub-paragraph B).
If
the parties to a treaty had contemplated for the occurrence of the changed
circumstance the doctrine does not apply and the provision remains in effect. Clausula
rebus sic stantibus only relates to changed circumstances that were
never contemplated by the parties. This principle is clarified in the Fisheries
Jurisdiction Case (United Kingdom v.
Iceland, 1973)[3]. In that case, in 1972, Iceland attempted
to extend its exclusive fisheries zone from 12 miles to 50 miles. United
Kingdom objected to the extension of the zone by Iceland and the dispute
resulted in what came to be known as the “Cod War” The International Court of
Justice in that case observed:
It is, notes the Court, admitted in
international law that if a fundamental change of the circumstances which
induced parties to accept a treaty radically transforms the extent of the
obligations undertaken, this may, under certain conditions, afford the party
affected a ground for invoking the termination or suspension of the treaty.
In
this case the Court considered whether the agreement of 1961 between Iceland
and the United Kingdom, certain provisions of which were in issue in the
proceedings before the Court, had come to an end due to fundamental change of
circumstances affecting fisheries and fishing techniques and legal opinion on
the extent of the jurisdiction. Insofar as the fundamental change of circumstances
affecting fisheries and fishing techniques were concerned, the Court did not
find it necessary to decide whether the changes were fundamental, and held that
in any case the alleged changes could not affect the only provision in the
agreement with which the Court was concerned, providing for submission of
disputes to the Court. The change of circumstances to give rise to a ground for
invoking termination of a treaty, it was also necessary that it should have
resulted in a radical transformation of the extent of the obligations still to
have been 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 the one originally undertaken. The Court did not
consider that condition to have been satisfied. As to the change in the legal
opinion on the extent of the fisheries jurisdiction, the Court observed that
‘changes in the law may under certain circumstances constitute valid grounds
for invoking a change of circumstances affecting the duration of a treaty’.
Nevertheless, the Court held that the fact Iceland may have entered into the
agreement in order to obtain immediate recognition of a 12-mile exclusive
fisheries zone, and that such a 12-mile zone may no longer be in dispute
between the parties, did not mean that the agreement could be regarded as
terminated. The object of the agreement was wider than mere recognition of the
12-mile zone and although some of the motives which may have persuaded Iceland
to enter into the agreement might not be in existence, it did not justify the
repudiation of those parts of the agreement, the object and purpose of which
had remained unchanged. The Court also noted that the agreement was in part
executed and in part executor, one of the parties having obtained benefit from
the executed provisions of the treaty. Hence it was inadmissible to allow that
party to put an end to obligations which were accepted under the treaty by way
of a quid pro quo for the provisions
which the other party had already executed.
Consequences of termination
or suspension of a treaty
Article
70 provides for consequences of termination of a treaty:
1.
Unless the treaty otherwise provides or the parties otherwise agree, the
termination of a treaty under its provisions or in accordance with the present
Convention:
(a)
releases the parties from any obligation further to perform the treaty;
(b)
does not affect any right, obligation or legal situation of the parties created
through the execution of the treaty prior to its termination.
2.
If a State denounces or withdraws from a multilateral treaty, paragraph 1
applies in the relations between that State and each of the other parties to
the treaty from the date when such denunciation or withdrawal takes effect.
Termination
of a treaty, thus, unless otherwise provided, releases the parties from any
performing any future obligations, but does not affect any right, obligation or
legal situation created through execution of the treaty prior to its
termination. If a treaty is declared void because it conflicts with a
peremptory norm there is a duty cast on the parties to eliminate as far as possible
the consequences of any act performed in reliance on such offending provision
and with bringing their mutual relations into conformity with the peremptory
norm of general international law.
Article
71(2) provides that if a treaty becomes void and terminates under article 64,
the termination of the treaty, the parties are released from any further
obligation to perform the treaty, but the rights, obligations and legal
situation of the parties created prior to the termination are not affected,
provided that those rights, obligations or situations may thereafter be
maintained only to the extent that their maintenance is not in itself in
conflict with the new peremptory norm of general international law.
