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Unilateral Denunciation of Treaties: The Vienna Convention and the International Court of Justice

Published online by Cambridge University Press:  28 March 2017

Herbert W. Briggs
Herbert W. Briggs*
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Extract

The final preambular paragraph of the 1969 Vienna Convention on the Law of Treaties affirms “that the rules of customary internationallaw will continue to govern questions not regulated by the provisions of the present Convention;” and Article 4 of the Convention, establishing the nonretroactivity of the Convention by providing that it “applies only totreaties which are concluded by States, after the entry into force of the present Convention with regard to such States,” stipulates that this nonretroactivity is “ [w]ithout prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention.”

Type
Research Article
Information
American Journal of International Law , Volume 68 , Issue 1 , January 1974 , pp. 51 - 68
Copyright
Copyright © American Society of International Law 1974

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References

1 UN Doc. A/CONF. 39/27, 23 May 1969; 63 AJIL 875 (1969). On the drafting of this preambular provision, see United Nations Conference on the Law of Treaties, Official Records, Vienna, Second Sess., 1969, A/CoNF.39/ll/Add.l (cited hereafter as Vienna, O.R.II), 169–77 (31st and 32d plenary meetings) and A/CONF.39/11/ Add. 2, (cited hereafter as Vienna, O.R., III) 263, 271. On Art. 4, see Vienna, O.R.II, 310–41 (100th-104th meetings, C.l), 165–66 (30th plenary meeting) and Vienna, O.R.III, 252–53. Consult also, Rosenne, Shabtai, The Law of Treaties—A Guide to the Legislative History of the Vienna Convention (1970)Google Scholar.

2 Cf., Art. 73, Vienna Convention.

3 Cf., also Art. 43, Vienna. On the general problem, see Baxter, R. R., Multilateral Treaties as Evidence of Customary International Law, 41 Brit. Y. B. Int. L. 275–300 (1965–66)Google Scholar; Baxter, R. R., Treaties and Custom, Hague Academy of International Law, 129 Rec. des Cours, 25–105 (1970–71)Google Scholar; D’Amato, Anthony A., The Concept of Custom in International Law (1971)Google Scholar; Thirlway, H. W. A., International Customary Law and Codification (1972)Google Scholar.

4 Cf., Art. 84, which requires 35 ratifications or accessions for the Convention to enter into force.

5 Cf., Art. 4.

6 Italics added.

7 Rules of Procedure 35 and 36. hoc. cit., Vienna, O.R., I, xxviii.

8 Of the articles adopted unanimously, significant numbers of abstentions were recorded on Art. 20 (objection to reservations, 83–0-17) and Art. 30 (effect of successive treaties, 90–0-14). Other significant abstentions occurred on articles on which there were negative votes, as indicated above. For the voting, consult the Official Records. See also Rosenne, cited supra note 1.

9 Loc. cit., Vienna, O.R.II, 321, par. 43.

10 Ibid., 325, par. 20.

11 Ibid., 337, pars. 77, 80.

12 Although it will not be further discussed here, the manner in which the Court proceeded to interpret the 1961 Exchanges of Notes between the United Kingdom and Iceland and the Federal Republic of Germany and Iceland in the Fisheries Jurisdiction cases, Judgments of Feb. 2, 1973 on the Jurisdiction of the Court, ICJ Reports, 1973, pars. 13–23 (U.K. v. Iceland) and pars. 14–23 (F.R.G. v. Iceland), provides an admirable example of the way in which Arts. 31 and 32 of the Vienna Convention on the Law of Treaties were intended by their draftsmen to be applied in order to discover the intentions and expectations of the parties through an examination of text, context, object, and travaux préparatoires. See further, 65 AJIL 707–12 (1971).

18 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of June 21, 1971. ICJ Reports, 1971, at 16.

14 Ibid., 45.

15 Ibid., 46.

16 South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of December 21, 1962, ICJ Reports, 1962, 319 at 331 and 330.

17 Article 60 reads as follows:

Termination or suspension of the operation of a treaty as a consequence of its breach

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.

2. A material breach of a multilateral treaty by one of the parties entitles:

(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part to terminate it either:

(i) in the relations between themselves and the defaulting State, or

(ii) as between all the parties;

(b) a party specially affected by the breach 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;

(c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.

3. A material breach of a treaty, for the purposes of this article, consists in:

(a) a repudiation of the treaty not sanctioned by the present Convention; or

(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.

5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.

18 ICJ Reports, 1971, at 47.

19 Would the fact that Portugal joined South Africa in voting against General Assembly resolution 2145 (XXI) be sufficient to defeat the purpose of par. 2(a) of Art. 60 of the Vienna Convention, which refers to “the other parties by unanimous agreement?”

20 Loc. cit., 47. The concluding clause appears, confusingly, to add the rebus sic stantibus principle in support of the alleged rule.

21 Cf. the observation of Judge de Castro in his Separate Opinion in the ICAO Council (Jurisdiction) case (ICJ Reports, 1972, 46, at 133 n.), inveighing against “what is a fairly common source of confusion, namely the belief that the absence of any tribunal having compulsory jurisdiction arbitrarily leaves States free to terminate or suspend treaties,” whereas “The true position is that a declaration of termination or suspension must be objectively justified to be valid.”

22 International Law Commission, Report on its 18th Sess. (1966) 83 (GAOR, 21st sess. (A/6309/Rev. I ) ; 61 AJIL 424 (1967).

23 See discussion in the Committee of the Whole, loc. cit., Vienna, O.R. I, 352 ff.; O.R., III, 181 ff.

24 Ibid., O.R. II, 111 ff. (21st plenary meeting); O.R. III, 269.

25 See Arts. 42, 65, 66, and Annex.

26 Judgment of August 18, 1972, ICJ Reports, 1972, at 46.

27 Since the Court’s documentation is not yet available, I have followed the Indian Memorial and the Pakistan Counter-Memorial as reprinted in 12 Indian J. of Int. L. 421–62 (Memorial) and 463–89 (Counter-Memorial) (1972). See also ICJ Reports, 1972, at 49.

28 ICJ Reports, 1972, at 50.

29 Ibid., 52 g.

30 Ibid., 52–53.

31 Ibid., 53–54.

32 Art. 84 of the Chicago International Civil Aviation Convention and Art. II, Section 2, of the International Air Services Transit Agreement. For texts, see ibid., 55.

33 Ibid., 62.

34 Ibid., 62, par. 29.

35 Indian Memorial, par. 30, cited supra note 27.

36 Ibid., and pars. 33 ft.

37 Ibid., pars. 75 ft.

38 Ibid., pars. 37 ft., 75.

39 Quoted supra at notes 18 and 20.

40 Supra, note 17.

41 ati Sinha, Bhek, Unilateral Denunciation of Treaty Because of Prior Violations of Obligations by Other Party (1966)CrossRefGoogle Scholar.

42 ICJ Reports, 1972, at 62.

43 Ibid., 64, par. 31.

44 Ibid., 64–65.

45 Judge de Castro saw the point clearly when he observed in his Separate Opinion that “The Advisory Opinion in the Namibia case does not support India’s contention” (ibid., 130, n.1) and that “It is not correct that the principle laid down in Article 60 of the Vienna Convention is dehors the Chicago Convention” (ibid., 129).

46 Ibid., 67.

47 Ibid., 70. By votes of 13 to 3 and 14 to 2, respectively.

48 Fisheries Jurisdiction (United Kingdom v. Iceland) Jurisdiction of the Court, Judgment of February 2, 1973, ICJ Reports, 1973, at 3. The comparable Judgment of Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Judgment of February 2, 1973, ICJ Reports, 1973, at 49, is in many, but not all, respects identically worded. For the purposes of this study reference is made only to the United Kingdom case.

49 ICJ Reports, 1973, at 8.

50 See Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection, Order of August 17, 1972, ICJ Reports, 1972, at 12. For the comparable Order in Federal Republic of Germany v. Iceland, ibid., 30.

51 ICJ Reports, 1973, par. 12, citing Art. 53 of the Court Statute under which the Court may give default judgments where it is satisfied that it has jurisdiction.

52 Ibid., 35.

53 Ibid., 39.

54 Ibid., 14, par. 24.

55 Ibid.

56 Ibid., Cf., the Court’s review of the negotiations, pars, 18–23 (U.K. v. Iceland), and of the German-Icelandic negotiations, ibid. (F.R.G.-Iceland), pars. 19–23.

57 Ibid., 14.

58 Ibid., pars. 25 ff.

59 Ibid., 16.

60 Ibid., 39.

61 Ibid., 9–14, Cf., supra note 12.

62 Ibid., 16–17.

63 See 2 Y.B. Int. L. Comm., 1963, at 64–70, Second Report on the Law of Treaties, by Sir Humphrey Waldock, Arts. 16 and 17, with Commentary. For the debate in the International Law Commission, see 1 ibid,, 98–107 (688th-89th meetings), 239–41 (709th meeting), 293–94 (717th meeting); and (as Art. 39), 1 ibid., 1966, Part I, 43–48 (829th meeting).

64 As rephrased by the Drafting Committee. See Vienna, O.R. III, 177–78 (on Art. 53 of the ILC text). For the debate in the Committee of the Whole, ibid., O.R. I, 336–43 (58th and 59th meetings, May 8, 1968); and in plenary, ibid., O.R. II, 108–10 (20th and 21st meetings, May 12–13, 1969), where the amended text of Art. 53 was adopted by a vote of 95–0-6, and became Art. 56 of the Vienna Convention.

65 Art. 4. Cf., Art. 28.

66 ICJ Reports, 1973, at 17.

67 Ibid., 18.

68 The Court itself did not employ the term rebus sic stantibus, which had also been abandoned by the International Law Commission so as to avoid its doctrinal implications. Cf., 2 Y. B. Int. L. Comm. (1966), at 258 (Report of the International Law Commission, 18th Sess., Commentary (par. 7) on Art. 59); 61 AJIL 432 (1967). Nor does the term appear in the Vienna Convention.

69 ICJ Reports, 1973, par. 36. The text of Art. 62 of the Vienna Convention reads:

Fundamental change of circumstances

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

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

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change 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.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawang from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

70 Ibid., 19.

71 Ibid., 20.

72 Ibid., 20–21.

73 Ibid., 21–22.