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

Obama's State of the Union

Obama tried to highlight his so-called foreign policy achievements in his final State of the Union (SOTU), when in reality the conflicts around the globe had risen sharply and two states, Russia and China posed a direct challenge to the US and Putin, in particular, challenged the global order with Moscow’s continued intervention in Ukraine and Syria. The SOTU came at a time when ten US Navy servicemen were seized by Iran in the Persian Gulf and when the majority of Americans were probably re-living the horrors of the Iran Hostage Crisis under another Democrat, Jimmy Carter. The Chief Executive instead of addressing the issue of the sailors in Iranian custody patted himself for the flawed Iran deal and how he had averted a war in the Gulf. Arizona Sen. John McCain, once Obama's GOP challenger for the presidency, blasted the speech for not including any reference to the incident in the Persian Gulf.

"Ten American sailors have been taken into custody in Iran," he said in a statement. "But President Obama completely omitted this latest example of Iran's provocative behavior so as not to interfere with his delusional talking points about his dangerous nuclear deal with Iran.

House Majority Leader Kevin McCarthy also slammed the omission.

"I was very concerned that he's missing where the challenge of the world is with security -- he sits and talks positively about Iran when they just took 10 of our Navy sailors," he said after the speech.

Never in the history of the US was a president more delusional than this man; he has had very little understanding of international affairs and US foreign policy – to give an example, in 2014 in an interview to David Remnick (New Yorker) he referred to the IS as a jv squad – “I think the analogy we use around here sometimes, and I think is accurate, is if a JV team puts on Lakers uniforms, that doesn’t make them Kobe Bryant. I think there is a distinction between the capacity and reach of a bin Laden and a network that is actively planning major terrorist plots against the homeland versus jihadists who are engaged in various local power struggles and disputes, often sectarian.” Recent polls show that about half of Americans disapprove of Obama’s handling of world affairs, largely thanks to fear over worldwide terrorist attacks by the Islamic State and al Qaeda. But although Obama spoke at length about the terrorist threat to the U.S., he mostly downplayed it, warning against “over-the-top claims that this is World War III.”

In his SOTU he did not even make a reference to the Israeli-Palestinian issue and his own tense relations with the Israeli Prime Minister Netanyahu. Obama made only a passing reference to Afghanistan, a year after he boasted moments into his 2015 State of the Union address that “for the first time since 9/11, our combat mission in Afghanistan is over.” That remains officially true, but 15 Americans have died in the country since October as the U.S. takes on a growing combat role to support a struggling Afghan army against a resurgent Taliban. And he dedicated just one line to Syria’s brutal civil war, saying only that the U.S. is “partnering with local forces and leading international efforts to help that broken society pursue a lasting peace.” The country is on the verge of breaking up as a result of a four year civil war and the US president who saw Iraq in Syria and dithered hopes for an enduring peace. This is height of his delusion.

Turkey in the Crosshairs

The Obama Administration has often emphasised the critical importance of Turkey's role and participation in the anti-Islamic State coalition. A special presidential envoy for the coalition said that the US cannot succeed against the Daesh/Islamic State without Turkey. Is the Obama Administration naive? Or does it wilfully ignore Turkey's IS links?

Nearly a fortnight prior to the Paris attacks, the Islamic State (IS) claimed responsibility for the downing of a Russian commercial plane carrying tourists from the Egyptian sea side resort of Shram-al Shaikh to St. Petersburg while it was flying over the Sinai. Russia had vowed to bring to justice the perpetrators responsible for the terrorist act. The November 13 Paris attacks not only brought about a unity amongst the members of the European Union but Russia too expressed solidarity with France in its fight against the IS. While Russian solidarity was welcome, its participation militarily was worrisome for some of the coalition members, essentially because it has been its stated objective to prop up the regime of Bashar al-Assad. (Russian intervention had begun in September 2015 in response to a request by the Syrian regime).  

On 17 November 2015, in the wake of the attack on the Russian commercial jet over the Sinai and the Paris attacks, according to the Russian defence minister′s public report to the president of Russia Vladimir Putin, Russia employed TU-160, TU-95 MSM and TU-22M3 long range strategic bombers to hit what he claimed were the IS targets in Raqqa, Deir ez-Zor as well as targets in the provinces of Aleppo and Idlib.

Downing the SU-24 and its Consequences

In the course of its anti-IS operations, a Russian Sukhoi Su-24 bomber was shot down by F-16 fighters belonging to the Turkish Air Force  on 24 November 2015.  According to Turkey’s claims presented to the UN Security council, two planes, whose nationalities were unknown to them at the time, violated Turkish airspace over the Yayladaği province up to 1.36 miles for 17 seconds. The planes were given 10 warnings within the span of 5 minutes to change their course. According to Turkey, the planes disregarded the warnings and were subsequently fired upon by Turkish F-16s patrolling the area. After the Turkish fire, one of the planes left Turkish airspace and the other crashed into Syrian territory. The Russian Ministry of Defense denied that any of their planes had violated Turkey's airspace, claiming they had been flying south of the Yayladaği province.

This incident led to escalation of tensions between the Russians and Turkey and the North Atlantic Alliance of which Turkey is a member. According to Group Captain (Retd) PI Muralidharan the interception by the F-16s were pre-meditated. He explains: "From the track chart that has been shared with the media by Turkish Foreign Ministry it is clear that the engagement by the F-16 was premeditated. The Russian SU-24 hardly transgressed about 10 kilometres of Turkish airspace in a linear fashion. At the combat speeds that fighters fly, this would have given at the most 20-25 seconds (at 6 kilometres, which is the reported altitude of the SU-24). This would be far too short a time for the entire intercept drill to be executed. Furthermore, if missile flight time is included, this timeframe would shrink further to just approximately 15 seconds. Can an ideal air defence intercept take place in this compressed timeframe? No, it cannot. Even if the entire identification process preceded the missile launch, clearly the Turkish F-16 pilot must have been pre-positioned by his controlling radar or Airborne Warning and Control System (AWACS) in a vantageous position relative to the SU-24, shooting it as soon as it crossed the border, theoretically that is." 

What caused particular chagrin in Moscow was Ankara’s determination to say from the outset that it deliberately shot down the plane instead of going for a face-saving explanation. Since then, Ankara has taken a largely defiant posture towards Russia. That Turkish President Recep Tayyip Erdoğan boasted he himself gave the order to fire only made things worse. While subsequently President Erdoğan has expressed regret and said that he was “truly saddened” by the downing, he refused to issue an apology as demanded of him by Moscow. On the contrary, he has said that those who violate Turkish airspace should be the ones to apologise.

The Russian military, in response to the downing of their aircraft deployed its advanced S-400 air defense missile system to the Syrian airbase of Hmeimim (Latakia province), only 18 miles from the Turkish border. This is a military game changer, with a senior Israeli officer describing its deployment as his country’s “worst nightmare.” With a radius of 250 miles and the ability to target up to 36 aircraft or cruise missiles simultaneously, Russia now possesses the capability to take down a Turkish plane any time it wishes. It also eliminates the possibility that the West could establish a no-fly zone over northern Syria — a step long demanded by Ankara. Putin also ordered Russian air-to-air fighter jets to accompany its bombers on all flights over Syrian airspace thereby enabling Russia to shoot down a Turkish jet on the Turkish-Syrian border, and then assert, after the fact, that it was close to attacking a Russian plane. 

At the heart of this incident lies the fundamental difference between Russia and Turkey over Assad. Russia supports Assad’s regime while Turkey is one of Assad’s staunchest opponents. The downing of the SU-24 was nothing less than the ongoing proxy war between Russia and Turkey for a moment becoming a hot one. Beyond the emotions, it serves Kremlin’s strategic objectives in Syria to take an unforgiving line against Turkey as it puts pressure on Turkey to step back from supporting anti-Assad rebels.

Turkey's flawed foreign policy

 

The neo-Ottoman aspirations of incumbent Turkish President Erdoğan’s ruling Justice and Development Party (AKP), given its recent improved showing in the presidential polls, have been the guiding force in Ankara’s foreign policy. Its Syrian policy has been tumultuous ranging from cultivating Assad in the mid-2000s to seeking his removal in 2011 when the Syrian uprising began. Turkey had appealed to the US to intervene in Syria and to oust Assad. However, Obama, who had no intention of deploying forces in the Middle East, dithered. With Ankara's Syria policy in disarray, it decided to turn a blind eye to the increasing number of radicalised young men who used Turkish territory to wage a holy war against Assad.

American and European officials first raised concerns in 2012 that jihadists were using Ataturk International Airport in Istanbul to make their way to the Turkish city of Gaziantep before heading into Syrian territory to join the IS in its fight against the Syrian regime. But the Turks dragged their feet on imposing border controls, and instead charged that Europe was not providing them timely intelligence about the IS sympathisers from Belgium, Germany and France entering Turkey. 

Over time, extremism became a veritable instrument of Turkish statecraft—and also, not surprisingly, a threat within Turkey’s borders. Turkey, along with another problematic American ally, Saudi Arabia, provided support to Ahrar al-Sham, which in turn allegedly provided assistance to Jabhat al Nusra, both Syrian rebel groups that are linked to Al Qaeda. And while Ankara might think it can rein in these groups, it clearly cannot: Within Turkey’s borders, extremists have built up their own infrastructure, including communications networks, safe houses, medical facilities and illicit commerce that exist to support the fight in Syria. It would be naive to think that this could not be used in a fight against Turkey. The scenario that is emerging is similar to that of Pakistan which was propped up as a front line state in the West’s war against the Soviet intervention in Afghanistan and years later to combat the terrorist belonging to the Taliban and Al Qaeda. Pakistan itself was caught up in the vortex of violence and continues to be embroiled in the Afghan quagmire. 

But critics have alleged that Erdoğan’s government has been unwilling to shut down supply lines from Turkey to territory controlled by IS. Certainly, questions about Turkey’s conduct toward the group remain unanswered. For instance, given all the violence that Abu Bakr al-Baghdadi’s followers have perpetrated, why were 46 Turks that IS took hostage in Mosul released unharmed? Turkish and Western observers speculated that the Turks provided cash or guns or both to secure the release of these diplomats and their families, but neither Erdoğan nor any other Turkish official provided a clear explanation.

Erdoğan’s links to the Islamic State

A US-led raid on the compound housing the Islamic State's ‘chief financial officer’ Abu Sayyaf produced evidence that Turkish officials directly dealt with senior IS members, according to Martin Chulov of the Guardian.

Islamic State official Abu Sayyaf was responsible for directing the terror group’s oil and gas operations in Syria. The Islamic State earns about $ 10 million per month selling oil on black markets.

Documents and flash drives seized during the Sayyaf raid reportedly revealed links “so clear” and “undeniable” between Turkey and IS “that they could end up having profound policy implications for the relationship between us and Ankara,” a senior western official familiar with the captured intelligence told the Guardian.

Erdoğan, being an Islamist himself and leader of a radical political party, the AKP has had no compunction in colluding with the Islamic State. There are several strategic and economic reasons for his proximity to the terrorist group: firstly, it is simply to avoid IS carrying out terror attacks inside Turkey; secondly, having embarked on a program of Islamisation of Turkey, Erdoğan does not see anything wrong in the IS ideology; thirdly, he has been using the elements of the IS to fight against his arch enemies, viz., the Kurds and Syrian President Assad; fourthly, and most importantly, Erdoğan’s family members and high ranking Turkish officials have been actively involved and are beneficiaries of the cross border smuggling of oil from Syria.

Erdoğan who always sheds crocodile tears for the plight of Syrians trapped between the hammer of hunger and the anvil of IS extremism, conceals the fact that his own son, Bilal Erdoğan, is involved in lucrative business of smuggling the Iraqi and Syrian plundered oil. Bilal Erdoğan who owns several maritime companies, had allegedly signed contracts with European operating companies to carry Iraqi stolen oil to different Asian countries.

A London-educated scion of wealthy family and the eldest daughter of totalitarian President Erdoğan, Sümeyye Erdoğan, more than once announced her intention to be dispatched to Mousl, Iraq’s once second-biggest city and IS’ stronghold to do relief works as a volunteer which drew public ire and vast condemnation from Turkey’s opposition parties. Moreover, the Turkish opposition parties accused the administration of Recep Tayyip Erdoğan of seeking diligently to hide the truth concerning numerous financial malfeasances Erdoğan’s son, Bilal Erdoğan, was involved.

It is not just Russia that has been raising these questions about Turkish involvement in the oil smuggling racket. International media, including the Financial Times, have been running stories tracing just how IS refines oil then sells it to freelance traders, some of whom smuggle it into Turkey for resale on the black market.

Similar reports record how IS and other armed units smuggle in weapons and fighters across the same border areas.

In the light of these accusations, it can be inferred that the downing of the SU-24 was a pre-meditated act intended to send a message to the Russians to stay away from the Turkey-Syrian border.

Turkey a frontline state against IS terror?

What is Turkey’s importance in the war against IS? Given Turkey’s proximity to the IS, Turkey’s value is limited to real estate. The existence of Incirlik Air Base along with the fact that Turkey shares a 500-mile border with Syria is Erdoğan’s trump card. At least for the moment. Erdoğan’s raving and ranting and sabre-rattling may last till Obama’s tenure in the White House. In fact there are very few even in the Obama Administration who believe that Turkey can be part of the solution to the Syrian problem. As of today, Washington appears content to be able to access Incirlik. 

As long as Washington refrains from pulling up Ankara for its closeness with the IS, Turkey and Erdoğan will continue to play a double game in the so-called war against the IS, akin to Pakistan’s policy of “running with the hares and hunting with the hounds.”