Termination of treaties

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.

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[1] Article 60 (1)

[2] Rainbow Warrior (New Zealand v France) 1990 82 ILR 499

[3]  ICJ Rep (1973) p3

Steps in the Formation of Treaties

[Note: This article is primarily meant for students of International Law studying the subject at the graduate or post-graduate level]

Introductory Note

According to Martin Dixon and Robert McCorquodale , treaties are evidence of the express consent of states to regulate their interests according to international law. It is important to remember that treaties are the most important source of international law and are increasingly used to codify and develop international law. Since international legal relationship between States and international organizations came to be increasingly governed by written agreements, a need was felt for developing a set of general rules to govern the obligations of the parties to treaties. In 1966, the International law Commission adopted its final report on the law of treaties and in a Conference attended by representatives of more than 100 states, held in Vienna, Austria in two sessions, in 1968 and 1969, the Vienna Convention on the Law of Treaties came to be adopted. The Convention entered into force on January 27, 1980. Another Convention was held in 1986 at Vienna on the Law of Treaties between States and International Organizations or between International Organizations. The 1969 Convention deals with the formation of treaties, entry into force, reservations, and procedure relating to invalidity, termination, withdrawal, and suspension of operation of treaties as well as their interpretation.

Definition and Meaning of the term ‘Treaty’

(1) Oppenheim : International treaties are agreements, of a contractual character, between States, or organizations of States, creating legal rights and obligations between the parties.

(2) McNair : The term treaty means a written agreement by which two or more states or international organizations create or intend to create a relation between themselves operating within the sphere of international law.

Article 2(1)(a) of the Vienna Convention on the Law of Treaties, 1969 defines the term treaty: Treaty means an international agreement concluded between States in a 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 term ‘treaty’ is used in a generic sense rather than a reference to a particular form of international agreement. The term treaty covers convention, agreement, arrangement, protocol, exchange of notes, exchange of letters, etc. International law makes no distinction between agreements referred to as treaties and other types of agreements. The name or designation given to an agreement is in itself unimportant and of no legal consequence.

There is no formal requirement in international law for a treaty to come into existence Treaties usually are in written form and the Vienna Convention on the Law of Treaties applies only to those treaties which are in written form. However, it cannot be categorically stated that oral agreements have no legal validity.

Unilateral statements-whether binding: A question that has not infrequently arisen is whether the unilateral statements or pronouncements of a State create any legally binding international obligations. The Legal Status of Eastern Greenland is a case in point. In 1919, the Danish government through its representative in Norway informed the Norwegian government that they would not raise any objection to Norway’s claim over Spitzbergen at the Paris Peace Conference if Norway refrained from challenging Danish claims of sovereignty over all Greenland. M. Ihlen, the Norwegian foreign minister, informed his Danish counterpart that Norway would not create any difficulties in respect of the Danish claim of sovereignty over Eastern Greenland. When the matter came up before the PCIJ, Denmark argued that Norway by the “Ihlen Declaration” had recognized Danish sovereignty over Eastern Greenland. The Court denied that the “Ihlen Declaration” constituted recognition of Danish sovereignty. However, it held that Norway had incurred a legally binding obligation to refrain from contesting Danish sovereignty over Eastern Greenland. The Court did not characterize the “Ihlen Declaration” as an oral agreement, nor did not delineate the circumstances, if any, when a unilateral statement could be binding. The Court in this case appeared to regard the Norwegian statement as being given in return for a Danish commitment not to oppose a Norwegian claim to Spitzbergen.

The agreement entered into between the parties must be governed by international law. Agreements which are subject to some national system of law will not constitute treaties. Where the parties do not possess international legal personality, the agreements entered into by and between such parties will not be governed by international law.

Formation of treaties

No specific form or procedure has been prescribed in international law for the conclusion of a treaty. The parties negotiating a treaty are free to agree upon a language or languages in which the treaty is to be expressed. Though a precise procedure or standard does not exist, following steps are generally adopted in concluding a treaty.

1) Accrediting of Persons by the Contracting States

2) Negotiation

3) Adoption of the text

4) Consent of the States

5) Entry into force

Accrediting of Persons by Contracting States

Normally, the treaty-making capacity of States is exercised by Heads of State or by their governments. However, today, this treaty-making power is rarely exercised by them in person, and is done through representatives. If they appoint a representative for the purpose of negotiating, adopting or authenticating the text of a treaty, or for expressing the consent of a State to be bound by a treaty, he is provided with a formal instrument called Full Powers. Art. 2(1)(c) of the Vienna Convention defines Full Powers: ‘full powers’ means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of a State to be bound by a treaty, or for accomplishing any other act with respect to a treaty.

Full Powers is not necessary if the treaty is concluded by the Heads of States or Governments, Minister of Foreign Affairs and heads of diplomatic mission.

Negotiation

The stage of negotiation is the most crucial stage in the formation of a treaty where the participating States put forth proposals for discussions. After detailed deliberations, the proposals are harmonized and the parties arrive at a tentative agreement.

Adoption of the Text

After negotiations, the form and content is settled by drawing up a text setting out its provisions. The normal rule is that consent of all the participating states is required for adopting the text of the treaty. The principle of unanimity in preparing the text of the treaty in the case of international conferences is unrealistic and is not normally the rule. Article 9 (2) of the Vienna Convention provides that adoption of the text of a treaty at an international conference takes place by two-thirds of the states present and voting, unless by the same majority they decide to apply a different rule.

Consent of the States

The treaties may bind states only when they have given their consent. Some of the ways in which a State may express its consent to be bound by a treaty are by means of signature, exchange of instruments, ratification or accession.

Authentication

In many cases authentication is not seen as a distinct step as the act of signature serves as authenticating and an expression of willingness to be bound by the treaty. However, in cases where the unsigned text of a treaty is incorporated in the final act of a conference, or where the treaty adopted in an international organization is authenticated by the president of the organization, authentication may be a separate step.

Signature

The act of affixing the signature by a State’s representative may express the consent of the State to be bound by the treaty. This can happen only where the negotiating or participating States have agreed that signature should have that effect, by providing in the treaty itself or where it appears from the full powers that a State had intended to give that effect to the signature of its representative or it was so expressed during negotiations. Sometimes, a representative’s signature may be qualified, that is to say it may be affixed ad referendum, i.e. subject to the State’s confirmation. In such a case, the State’s subsequent confirmation constitutes signature of the treaty. In certain cases, where the signature may be subject to ratification, a State will not be bound by the treaty till ratification is complete.

Exchange of Instruments

Article 13 of the Vienna Convention provides the consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when:

(a) the instruments provide that their exchange shall have that effect; or
(b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect.

Ratification

Article 2(1) (b) of the Vienna Convention on the Law of Treaties 1969 defines ratification as ‘the international act so named whereby a States establishes on the international plane its consent to be bound by a treaty’.

Ratification is mainly required for the States to re-examine the over-all effect of the treaties on their national interests. The other reason for having the step of ratification is to give the States sufficient time to enact legislation to give effect to the obligations which they would assume under the treaty.

Article 14 of the Vienna Convention provides that the consent of a State to be bound by a treaty is expressed by ratification when:

(a) the treaty provides for such consent to be expressed by means of ratification;

(b) it is otherwise established that the negotiating States were required that ratification should be required;

(c) the State’s representative has signed the treaty subject to ratification; or

(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

Form and Mode of Ratification

International law does not prescribe any form of ratification. According to Oppenheim, ratification normally takes the form of a document signed by the Heads of the States or their foreign ministers. It is usual to draft as many documents as there as parties to the treaty, and to exchange these copies between the parties.

Entry into Force

A treaty enters into force in accordance with its provisions. Article 24 of the Vienna Convention provides that a treaty enters into force in such manner and upon such date as it may provide or as the states negotiating the treaty may agree. If the treaty is silent, it enters into force as soon as consent to be bound by the treaty has been established for all the negotiating states. Bilateral treaty enters into force when States exchange documents of ratification. Where ratification is not required, the treaty comes into force after signature and exchange or deposit of signed copies. Multilateral treaties enter into force from date when prescribed number of ratifications or accessions has been made.

References:
1. Martin Dixon and Robert McCorquodale, Cases and Materials on International Law (1995) p 48
2. Oppenheim, International Law Vol. 1 (8th Edition) p 877
3. McNair, Law of Treaties p 4