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Stability and Change in Times of Fragmentation: The Limits of Pacta Sunt Servanda Revisited

Published online by Cambridge University Press:  01 November 2012

CHRISTINA BINDER
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Abstract

Stability versus change is one of the fundamental debates of the law of treaties. The limits of pacta sunt servanda – under which conditions a state may derogate from treaty obligations when circumstances change – appears as a constant throughout the history of international law. This article examines the limits of pacta sunt servanda in times of fragmentation. It first discusses the mechanisms of general international law – supervening impossibility of performance and fundamental change of circumstances (Articles 61 and 62 VCLT) in the law of treaties and force majeure and the state of necessity (Articles 23 and 25 of the ILC Articles on State Responsibility) in the law of state responsibility. It is argued that they provide only insufficient means to accommodate change. Against that background, derogation is examined in specific treaty regimes, including international human rights law, the law of the sea, and international investment law. Treaty-based termination/withdrawal clauses and emergency exceptions are analysed accordingly. Especially the latter are formulated in a regime-specific way, adapting derogation from treaty obligations to the requirements of the respective treaty regimes. On the basis of an empirical analysis of relevant state practice it is argued that this regime-specificity – a sign of fragmentation – is especially important since there is an increased need for temporary derogation in contemporary international law.

Keywords

fragmentationlaw of treatiesnecessity plearebus sic stantibus/fundamental change of circumstancestreaty-based emergency exceptions
Type
INTERNATIONAL LAW AND PRACTICE
Information
Leiden Journal of International Law , Volume 25 , Issue 4 , December 2012 , pp. 909 - 934
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2012

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References

1 See, e.g., the ILC's 2008 inclusion of ‘treaties over time’ in its programme of work. The General Assembly took note of the decision in Resolution 63/123 of 11 December 2008 (UN Doc. A/RES/63/123 (2008)).

2 See, e.g., Hafner, G., Panel ‘Große Kodifikationen – Eingefrorenes Recht oder weiterhin tauglich?’, in Nolte, G. and Hilpold, P. (eds.), Auslandsinvestitionen – Entwicklung großer Kodifikationen – Fragmentierung des Völkerrechts – Status des Kosovo: Beiträge zum 31. Österreichischen Völkerrechtstag 2006 in München (2008), 94Google Scholar.

3 Dupuy, P. M., ‘Evolutionary Interpretation of Treaties: Between Memory and Prophecy’, in Cannizzaro, E. (ed.), The Law of Treaties beyond the Vienna Convention (2011), 123Google Scholar at 124.

4 Böhmert refers to three potential cases of application out of which only one materialized. V. Böhmert, Der Art. 19 der Völkerbundsatzung (1934), at 232 et seq. See also Owada, H., ‘Peaceful Change’, in Wolfrum, R. (ed.), Max Planck Encyclopedia of Public International Law (last updated 2007)Google Scholar, available online at www.mpepil.com, at paras. 8 et seq.

5 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the ILC in its 53rd Session (2001), and submitted to the General Assembly as a part of the Commission's report covering the work of that Session, UN Doc. A/56/10 (2001), UN Doc. A/RES/56/83 (2001) (hereinafter ILC Articles). Arts. 23 and 25 of the ILC Articles are generally considered as general principle of law and as codification of customary international law respectively. (See infra notes 51 and 42.)

6 Gazzini, T., Werner, W. G., and Dekker, I. F., ‘Necessity across International Law: Introduction’, (2010) 41 NYBIL 3Google Scholar, at 5. See also the Study Group on Fragmentation under the chairmanship of Koskenniemi: ‘New types of specialized law do not emerge accidentally but seek to respond to new technical and functional requirements. . . . “Trade law” develops as an instrument to regulate international economic relations. “Human rights law” aims to protect the interests of individuals . . . Each rule-complex or “regime” comes with its own principles, its own form of expertise and its own “ethos” . . . In order for the new law to be efficient, it often includes new types of treaty clauses or practices that may not be compatible with old general law’. M. Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682 (2006), at 13).

7 As to the evolution of international law from a law of coexistence and co-ordination to a law of co-operation see generally W. Friedman, The Changing Structure of International Law (1964). As to the changing legal structure of international treaties see also Weiler, J. H. H., ‘The Geology of International Law: Governance, Democracy and Legitimacy’, (2004) 64 ZaöRV 547Google Scholar; Tietje, C., ‘The Changing Legal Structure of International Treaties as an Aspect of an Emerging Global Governance Architecture’, (1999) 42 GYBIL 26Google Scholar.

8 Arts. 61 and 62 VCLT are generally considered to codify customary international law. See for many M. E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009), at 761 and 780.

9 For a documentation of the travaux préparatoires see R. G. Wetzel and D. Rauschning, The Vienna Convention on the Law of Treaties: Travaux Preparatoires. Die Wiener Vertragsrechtskonvention: Materialien zur Entstehung der einzelnen Vorschriften (1978), at 420 et seq.

10 Art. 62 VCLT: ‘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 withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.’

11 Art. 61 VCLT: ‘1. A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty. 2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.’

12 If the impossibility is temporary, Art. 61 VCLT may be invoked only as a ground for suspending the operation of the treaty (Art. 61(1) VCLT).

13 For space constraints this overview is necessarily limited. For additional cases see Shaw, M. N. and Fournet, C., ‘Article 62: Fundamental Change of Circumstances’, in Corten, O. and Klein, P. (eds.), The Vienna Conventions on the Law of Treaties: A Commentary (2011), Vol. 2, 1411Google Scholar; P. Bodeau-Lvince and J. Morgan-Foster, ‘Article 61 VCLT’, in ibid., 1382.

14 Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction, Judgment of 2 February 1973, [1973] ICJ Rep. 3, at para. 38.

15 Ibid., at paras. 40 and 43.

16 See Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, [1997] ICJ Rep. 7, at paras. 95 and 104.

17 Ibid.

18 Ibid., at para.104.

19 Case 162/96, A. Racke GmbH & Co. v. Hauptzollamt Mainz, [1998] ECR I-3655, at paras. 55–5.

20 Dutch Government, Note Verbale of 16 December 1982, [1983] Tractatenblad No 6, reprinted in Lindemann, H. H., ‘Die Auswirkungen der Menschenrechtsverletzungen in Surinam auf die Vertragsbeziehungen zwischen den Niederlanden und Surinam’, (1984) 44 ZaöRV 64Google Scholar, at 81.

21 Libyan Arab Foreign Investment Company (LAFICO) and the Republic of Burundi of 4 March 1991, 96 ILR 279, at 317–18.

22 Ibid.; Gabčíkovo-Nagymaros case, supra note 16, at para.103.

23 The Annex to the VCLT deals with the establishment of the Conciliation Commission.

24 Arts. 65(1) and 67 VCLT.

25 Art. 65(2) VCLT.

26 Art. 65(3) VCLT refers to Art. 33 of the UN Charter.

27 Art. 66 VCLT.

28 See generally Villiger, supra note 8, at 815; G. Gaja, ‘Jus Cogens Beyond the Vienna Convention’, 172 RdC (1981-III), 285.

29 See for instance the ICJ's cryptical statement in the Gabčíkovo-Nagymaros case: ‘[The parties agreed] that Articles 65 to 67 of the Vienna Convention on the Law of Treaties, if not codifying customary international law, at least generally [reflected] customary international law.’ Gabčíkovo-Nagymaros case, supra note 16, at para. 109. See generally Villiger, supra note 8, at 813–14.

30 Art. 62(3) VCLT establishes the suspension of the treaty as an alternative right left at the disposal of the party which is relying on the fundamental change of circumstances. Art. 61(1) VCLT provides that a treaty party may only suspend a treaty if the impossibility is temporary. See supra notes 10 and 11. Both Art. 70 and Art. 72 VCLT are generally considered to codify customary international law. See, e.g., Wittich, S., ‘Article 70’, in Dörr, O. and Schmalenbach, K. (eds.), Vienna Convention on the Law of Treaties (2011), 1195Google Scholar at para. 38; S. Wittich, ‘Article 72’, in ibid., 1227 at para. 23.

31 According to Special Rapporteur Waldock, renegotiation was an ‘imperfect’ right because ‘if the other party is unwilling to accept a modification of the treaty, the “right” is somewhat illusory.’ H. Waldock, Fifth Report on the Law of Treaties, 1966 YILC, Vol. 2, at 28, para. 5. The adaptation of the treaty by an international tribunal was considered as transgressing its judicial function. See P. Reuter, Introduction to the Law of Treaties (1995), at 149.

32 Art. 70 VCLT: ‘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. . . .’

33 The ILC, in its discussions, pointed to the diversity of possible circumstances and left it to the treaty parties to find a solution in good faith. ILC, Law of Treaties, 1966 YILC, Vol. 2, at 266, para. 4.

34 See for further reference Villiger, supra note 8, at 873–4.

35 To remedy such inequalities, one must thus draw on other concepts, such as considerations of unjust enrichment. See Binder, C. and Schreuer, C., ‘Unjust Enrichment’, in Wolfrum, R. (ed.), Max Planck Encyclopedia of Public International Law, (last updated 2008)Google Scholar available online at www.mpepil.com for further reference.

36 See Schwelb, E., ‘Fundamental Change of Circumstances: Notice on Art. 59 of the Draft Convention on the Law of Treaties as Recommended for Adoption to the U.N. Conference on the Law of Treaties by Its Committee of the Whole in 1968’, (1969) 29 ZaöRV 48Google Scholar.

37 Lissitzyn, O., ‘Treaties and Changed Circumstances (Rebus sic Stantibus)’, (1967) 61 AJIL 895, at 915CrossRefGoogle Scholar.

38 See A. Verdross and B. Simma, Universelles Völkerrecht (1984), at 533.

39 See, e.g., R. Ago, Addendum to the Eighth Report on State Responsibility, UN Doc. A/CN.4/318/ADD.5–7, 1980 YILC, Vol. 2/1, 13, at 17–18; see also Barboza, J., ‘Necessity (Revisited) in International Law’, in Makarczyk, J. (ed.), Essays in International Law in Honour of Judge Manfred Lachs (1984), 27Google Scholar at 28.

40 See supra note 5.

41 Art. 33 was adopted by the ILC in the first reading. Art. 25 differs slightly from Art. 33 as it omits the qualifying addendum ‘of the state’ after ‘essential interest’ and denies reliance on necessity when interests of the ‘international community as a whole’ would be impaired.

42 Different tribunals have accepted the customary-law character of the necessity defence: the ICJ in the Gabčíkovo-Nagymaros case, supra note 16, at para. 51; the International Tribunal for the Law of the Sea (ITLOS) in M/V Saiga No. 2 (St. Vincent and the Grenadines v. Guinea), Judgment of 1 July 1999, available online at www.itlos.org, at para. 134 (both tribunals refer to the then Art. 33); see also Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, [2004] ICJ Rep. 136, at 195; CMS Gas Transmission Company v. The Argentine Republic, ICSID Case No. ARB/01/8, Award, 12 May 2005, (2005) 44 ILM 1205, at paras. 315 and 317; LG&E Energy Corp, LG&E Capital Corp, LG&E International Inc v. The Argentine Republic, ICSID Case No. ARB/02/1, Decision on Liability, 3 October 2006, (2007) 46 ILM 36, at para. 245.

43 Art. 25 of the ILC Articles: ‘1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: (a) Is the only way for the State to safeguard an essential interest against a grave and imminent peril; and (b) Does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. 2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: (a) The international obligation in question excludes the possibility of invoking necessity; or (b) The State has contributed to the situation of necessity.’ See for further reference Heathcote, S., ‘Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Necessity’, in Crawford, J., Pellet, A., and Olleson, S. (eds.), The Law of International Responsibility (2010), 491Google Scholar.

44 Commentaries to the draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its 53rd session (2001), Official Records of the General Assembly, 56th Session, Supplement No. 10, UN Doc. A/56/10, at 202–3 (hereinafter ILC Commentary).

45 Ibid.

46 Ibid.

47 Ibid., at 203–4.

48 Ibid., at 204–5.

49 Art. 26 of the ILC Articles.

50 See for further reference S. Szurek, ‘Circumstances Precluding Wrongfulness in the ILC Articles on State Responsibility: Force Majeure’, in Crawford, Pellet, and Olleson, supra note 43, 475.

51 Art. 23 of the ILC Articles: ‘1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation. 2. Paragraph 1 does not apply if: (a) The situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (b) The State has assumed the risk of that situation occurring.’ Force majeure is generally considered a general principle of law. See, e.g., ILC Commentary, supra note 44, at 186.

52 Ibid., at 183.

53 Ibid., at 184.

54 Art. 23(2)(a) of the ILC Articles. See, e.g., LAFICO v. Burundi, supra note 21, at 318.

55 Art. 23(2)(b) of the ILC Articles. ILC Commentary, supra note 44, at 188.

56 Ibid., at 184.

57 Gabčíkovo-Nagymaros case, supra note 16, at paras. 48–59.

58 This concerned Hungary's reliance on ecological necessity; ibid., at para. 56.

59 Ibid., at para. 55.

60 Rainbow Warrior of 30 April 1990 (New Zealand v. France), XX RIAA 215, at 254.

61 LAFICO v. Burundi, supra note 21, at 317.

62 Saiga, supra note 42, at para. 134.

63 Legal Consequences of the Construction of a Wall, supra note 42, at para. 140.

64 See ICSID available online at http://icsid.worldbank.org/ICSID/Index.jsp; Investment Treaty Arbitration available online at http://ita.law.uvic.ca.

65 CMS, supra note 42.

66 LG&E, supra note 42.

67 Enron Corporation Ponderosa Assets LP v. Argentine Republic, ICSID Case No. ARB/01/3, Award, 22 May 2007, available online at http://ita.law.uvic.ca/documents/Enron-Award.pdf.

68 Sempra Energy International v. Argentine Republic, ICSID Case No. ARB/02/16, Award, 28 September 2007, available online at http://ita.law.uvic.ca/documents/SempraAward.pdf.

69 Continental Casualty Company v. Argentine Republic, ICSID Case No. ARB/03/9, Award, 5 September 2008, available online at http://ita.law.uvic.ca/documents/ContinentalCasualtyAward.pdf.

70 Metalpar SA and Buen Aire SA v. Argentine Republic, ICSID Case No. ARB/03/5, Award, 6 June 2008, available online at http://ita.law.uvic.ca/documents/Metalpar-awardsp.pdf.

71 Suez, Sociedad General de Aguas de Barcelona SA and Vivendi Universal SA v. Argentine Republic, ICSID Case No. ARB/03/19, Decision on Liability, 30 July 2010.

72 Total S.A. v. Argentine Republic, ICSID Case No. ARB/04/1, Decision on Liability, 27 December 2010.

73 Impregilo S.p.A. v. Argentine Republic, ICSID Case No. ARB/07/17, Award, 21 June 2011.

74 El Paso Energy International Company v. Argentina, ICSID Case No. ARB/03/15, Award, 31 October 2011.

75 UNCITRAL, Group Plc. v. Republic of Argentina, Final Award, 24 December 2007, available online at http://ita.law.uvic.ca/documents/BG-award_000.pdf.

76 UNCITRAL, National Grid Plc v. Argentine Republic, Award, 3 November 2008, available online at http://ita.law.uvic.ca/documents/NGvArgentina.pdf.

77 The Enron and Sempra decisions were subsequently annulled. Enron Creditors Recovery Corp. Ponderosa Assets LP v. Argentine Republic, ICSID Case No. ARB/01/3, Decision on the Application for Annulment of the Argentine Republic, 30 July 2010; Sempra Energy International v. Argentine Republic, ICSID Case No. ARB/02/16, Decision on the Argentine Republic's Application for Annulment of the Award, 29 June 2010.

78 See for further reference, e.g., Bjorklund, A., ‘Emergency Exceptions: State of Necessity and Force Majeure’, in Muchlinski, P., Ortino, F., and Schreuer, C. (eds.), Oxford Handbook of International Investment Law (2008), 459Google Scholar; Reinisch, A., ‘Necessity in International Investment Arbitration: An Unnecessary Split of Opinions in Recent ICSID Cases?’, (2007) 8 Journal of World Investment and Trade 191Google Scholar; Binder, C., ‘Changed Circumstances in Investment Law: The Argentine Crisis before ICSID Tribunals’, in Binder, C.et al. (eds.), International Investment Law in the 21st Century. Essays in Honour of Christoph Schreuer (2009), 608CrossRefGoogle Scholar.

79 While both tribunals accepted the applicability of the BIT's emergency exception (Art. XI of the US–Argentina BIT), in their interpretation of Art. XI, they drew heavily on the elements of the customary law based necessity defence. See, e.g., Continental Casualty, supra note 69, at paras. 160–236.

80 France had also failed to return the officers to Hao following medical treatment.

81 Rainbow Warrior, supra note 60, at 253.

82 LAFICO v. Burundi, supra note 21, at 318.

83 Autopista Concesionada de Venezuela CA v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/00/5, Award, 23 September 2003. Although the claim was brought on the basis of a breach of Venezuela's contractual obligations under the Concession Agreement, the ICSID tribunal had nonetheless regard to international law when dealing with force majeure.

84 Ibid, at para. 106.

85 Ibid, at paras. 117–119.

86 For further reference see G. H. Aldrich, The Jurisprudence of the Iran–United States Claims Tribunal (1996), at 306–7.

87 ILC Commentary, supra note 44, at 170.

88 Notifying the treaty partner(s) as soon as possible after the knowledge of the force majeure/necessity situation will, however, be a necessary good-faith requirement. See generally on good faith J. F. O'Connor, Good Faith in International Law (1991).

89 Art. 27(7)(a) of the ILC Articles. See also ILC Commentary, supra note 44, at 209–10. Note, however, that also suspension in accordance with Arts. 61(1) or 62(3) VCLT does not permanently affect the underlying obligation.

90 Art. 27 of the ILC Articles: ‘Consequences of invoking a circumstance precluding wrongfulness. The invocation of a circumstance precluding wrongfulness in accordance with this chapter is without prejudice to: . . . (b) The question of compensation for any material loss caused by the act in question.’

91 See Gabčíkovo-Nagymoros, supra note 16, at para. 48, where the ICJ refers to Hungary's acknowledgement that it would still compensate its partner. See also ILC Commentary, supra note 44, at 211. More generally, see T. Christakis, ‘“Nécessité n'a pas de loi?” La nécessité en droit international’, in Colloque de Grenoble: La nécessité en droit international (2007), 11 at 45 et seq.

92 See ibid.; see also R. Dolzer and C. Schreuer, Principles of International Investment Law (2008), at 170.

93 As affirmed in the ILC Commentary: ‘The reference to “material loss” is narrower than the concept of damage elsewhere in the articles: article 27 concerns only the adjustment of losses that may occur when a party relies on a circumstance covered by chapter V.’ ILC Commentary, supra note 44, at 210–11.

94 See, e.g., Christakis, T., ‘Les “circonstances excluant l'illicéité”: une illusion optique?’, in Corten, O. (ed.), Droit du pouvoir, pouvoir du droit: Mélanges offerts à Jean Salmon (2007), 223Google Scholar at 256 et seq.

95 For details, see Binder, C., ‘Does the Difference Make a Difference? A Comparison between the Mechanisms of the Law of Treaties and of State Responsibility as Means to Derogate from Treaty Obligations in Cases of Subsequent Changes of Circumstances’, in Szabo, M. (ed.), State Responsibility and the Law of Treaties (2010), 1Google Scholar.

96 See, e.g., CMS, supra note 42, at para. 329.

97 Ibid., at para. 323.

98 For criticism see for instance Reinisch, A., ‘Necessity in International Investment Arbitration: An Unnecessary Split of Opinions in Recent ICSID Cases? Comments on CMS v. Argentina and LG&E v. Argentina’, (2006) 3 Transnational Dispute ManagementGoogle Scholar, at Section III.B.

99 See Widdows, K., ‘The Unilateral Denunciation of Treaties Containing no Denunciation Clause’, (1982) 53 BYBIL 83Google Scholar, at 95.

100 See also Arts. XVIII(2), XXIII(2), and XXX(2) GATT.

101 See UNCTAD, World Investment Report 2011, available online at www.unctad-docs.org/files/UNCTAD-WIR2011-Full-en.pdf, at 100.

102 See Investment Treaty Arbitration, available online at http://ita.law.uvic.ca/investmenttreaties.htm; several model BITs are also reprinted in Dolzer and Schreuer, supra note 92, at 360 et seq.

103 Art. 71 ICSID Convention.

104 Also the 2003 International Convention on the Protection of All Migrant Workers and Members of Their Families (MWC) and the 2006 Convention on the Rights of Persons with Disabilities (CRPD) allow for denunciation.

105 Likewise the 1966 International Covenant on Economic, Social and Cultural Rights (CESCR), the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the 2006 Convention on the Protection of All Persons from Enforced Disappearance (CPED), and the 1981 African (Banjul) Charter on Human and Peoples' Rights do not provide for withdrawal.

106 Art. 12 of the OP to the CCPR provides for three months; Art. 19 of the OP to the CEDAW does not contain a time period for denunciation to take effect. Six months are foreseen in Art. 20 of the OP to the CESCR, 12 months in Art. 16 of the OP to the CRPD.

107 The 1958 Geneva Conventions on the Law of the Sea, have lost most of their practical relevance since Art. 311(1) LOSC establishes that the widely ratified LOSC prevails over the Geneva Conventions as between the treaty parties.

108 These agreements are the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, the 1997 Agreement on the Privileges and Immunities of the International Tribunal for the Law of the Sea, and the 1998 Protocol on the Privileges and Immunities of the International Seabed Authority.

109 See, e.g., Art. 58(2) ECHR: ‘Such a denunciation shall not have the effect of releasing the High Contracting Party concerned from its obligations under this Convention in respect of any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective.’ See furthermore Art. 78(2) ACHR or Art. 89(3) MWC.

110 See, e.g., Art. 12(2) OP to the CCPR: ‘Denunciation shall be without prejudice to the continued application of the provisions of the present Protocol to any communication submitted under article 2 before the effective date of denunciation.’

111 Art. 317 LOSC: ‘2. A State shall not be discharged by reason of the denunciation from the financial and contractual obligations which accrued while it was a Party to this Convention, nor shall the denunciation affect any right, obligation or legal situation of that State created through the execution of this Convention prior to its termination for that State.’

112 See e.g., Art. 13 of the 2008 German Model BIT: ‘3. In respect of investments made prior to the date of termination of this Treaty, the provisions of the above Articles shall continue to be effective for a further period of twenty years from the date of termination of this Treaty.’

113 Art. XV of the WTO Agreement: ‘Withdrawal. 1. Any Member may withdraw from this Agreement. Such withdrawal shall apply both to this agreement and the Multilateral Trade Agreements’.

114 See Tietje, supra note 7; and Weiler, supra note 7 for further reference.

115 Denunciation of the European Convention and of the First Protocol, Letter of the Director of Legal Affairs of the Secretary General of the Council of Europe to the Ministers of Foreign Affairs of the Council of Europe, J/Dir 3280, Strasbourg, 24 June 1970, YB of the ECHR (1970), 4. After the end of the military dictatorship Greece reacceded to the ECHR on 28 November 1974. CoE, Greece, Human Rights, available online at http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?PO=GRE&MA=44&SI=2&DF=&CM=3&CL=ENGl.

116 Notification of withdrawal by the Ministerio de Relaciones Exteriores de Trinidad y Tobago to the OAS Secretary General, 26 May 1998, available online at www.oas.org/juridico/spanish/firmas/b-32.html; see also Ramírez, S. García, ‘The Inter-American Court of Human Rights and the Death Penalty’, Biblioteca Jurídica Virtual del Instituto de Investigaciones Jurídicas del UNAM (2009)Google Scholar, available online at http://info8.juridicas.unam.mx/pdf/mlawrns/cont/5/nte/nte5.pdf.

117 With their reservations, Guyana and Trinidad and Tobago sought to restrict the right to file communications relating to prisoners who had been sentenced to death.

118 The denunciation was not accepted by the Human Rights Committee. North Korea seems to ultimately have accepted the Committee's position since it submitted a state report in 2000. See for further reference Crawford, J., ‘The UN Human Rights Treaty System: A System in Crisis?’, in Alston, P. and Crawford, J. (eds.), The Future of Human Rights Treaty Monitoring (2000), 1Google Scholar at 10.

119 Denunciation practice was analysed with respect to the human rights treaties registered in the UNTC database (UN Treaty Collection (UNTC), Status of ratifications, 27 January 2012, available online at http://treaties.un.org/) as well as the ECHR, the ACHR, and the African Charter on Human and Peoples' Rights (Banjul Charter).

120 To exemplify, as of January 2012, 175 states were parties to the CERD, 160 to the CESCR, 167 to the CCPR, 186 to the CEDAW; 147 to the CAT, and 193 to the CRC. (See UNTC database, ibid.)

121 Senegal's withdrawals from 9 June 1971 and 1 March 1976 were registered by the UN Secretary General (Nos. 7477 and 8164, 781 UNTS 332; No. 7302, 997 UNTS 486). See C. Fulda, Demokratie und Pacta Sunt Servanda (2002), at 158–9, for further reference.

122 As of January 2012, 162 states were parties to the LOSC (UNTC database, supra note 119).

123 In this sense also Steinmann, A., ‘Article XV WTO Agreement: Withdrawal’, in Wolfrum, R., Stoll, P. T., and Kaiser, K. (eds.), WTO: Institutions and Dispute Settlement (2006), 165Google Scholar at 169.

124 See Guide to GATT Law and Practice (1994), at 937. See also Footer, M., ‘Article XXXI: Withdrawal’, in Wolfrum, R., Stoll, P. T., and Hestermayer, H. (eds.), WTO – Trade in Goods (2011), 746Google Scholar at para. 10.

125 Note, however, that it is difficult to comprehensively gather relevant data because of the lacking unification of databases. (The data stem partly from expert interviews with Christoph Schreuer (conducted in Vienna in January 2012) and Stephan Schill (conducted in Heidelberg in June 2011).)

126 See supra note 101; see also the ICSID website at http://icsid.worldbank.org/ICSID/Index.jsp.

127 Peterson, L. E., ‘Venezuela Surprises the Netherlands with Termination Notice for BIT; Treaty has been Used by Many Investors to “Route” Investments into Venezuela’, Investment Arbitration Reporter, 16 May 2008Google Scholar, available online at www.iareporter.com/articles/20091001_93.

128 ICSID website, supra note 126.

129 See, e.g., C. von Krause, ‘The European Commission's Opposition on Intra-EU BITs and Its Impact on Investment Arbitration’, 28 September 2010, available online at http://kluwerarbitrationblog.com/blog/2010/09/28/the-european-commissions-opposition-to-intra-eu-bits-and-its-impact-on-investment-arbitration. See also Tietje, C., ‘Innereuropäische Investitionsschutzverträge zwischen EU Mitgliedstaaten (Intra EU BITs) als Herausforderung im Mehrebenensystem des Rechts’, (2011) 104 Beiträge zum Transnationalen WirtschaftsrechtGoogle Scholar, available online at www.telc.uni-halle.de/sites/default/files/altbestand/Heft_104.pdf, at 6.

130 See, e.g., S. Jorgensen, ‘Italy–Czech Investment Treaty Terminated’, available online at www.smedjorgensen.com/en/italy-czech-bilateral-investment-treaty-terminated.

131 In fact, only some older treaties of commerce provide for substantive termination criteria. For details see R. Y. Jennings and A. Watts, Oppenheim's International Law, Vol. 1 (1992), at 1306. Likewise in treaties on disarmament and arms control, the occurrence of fundamental changes threatening essential state interests are made an explicit exit condition. See, e.g., Art. XVI of the Chemical Weapons Convention, Art. XV of the ABM Treaty or Art. X(1) of the Treaty on the Non-Proliferation of Nuclear Weapons.

132 This may be explained by the fact that state obligations are formulated more stringently in these treaties than in treaties on economic, social, and cultural rights (see, e.g., the weakly framed Art. 2 CESCR). The Banjul Charter does not contain an emergency exception but leaves states generally a large margin of appreciation as regards implementation.

133 See, e.g., the findings of the European Court of Human Rights in Lawless v. Ireland: ‘The Court, unanimously . . . (iv) States that the detention of G. R. Lawless . . . was founded on the right of derogation duly exercised by the Irish Government in pursuance of Article 15 (art. 15) of the Convention in July 1957; . . . Decides, accordingly, that in the present case the facts found do not disclose a breach by the Irish Government of their obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms’. Case of Lawless v. Ireland (No 3), Judgment (Merits), 1 July 1961, at para. 48, emphasis added. The wording chosen by the Court indicates that in case of lawful derogations there is no breach of treaty obligations.

134 Differences concern the list of non-derogable rights, the CCPR's requirement that the state of emergency is to be officially proclaimed, and the ACHR's failure to establish that the life of the nation has to be threatened. The most extensive list of non-derogable rights is contained in Art. 27(2) ACHR. See M. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), at 83; as regards the ECHR, see Ashauer, C., ‘Die Menschenrechte im Notstand. Eine Untersuchung zu den Voraussetzungen der Derogation nach Art. 15 EMRK unter besonderer Berücksichtigung der Figur des überpositiven Notstandes’, (2007) 45 Archiv des Völkerrechts 400CrossRefGoogle Scholar.

135 Art. 4 CCPR: ‘1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. 3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.’

136 Ibid.

137 While it is the other states parties and not the Human Rights Committee which are notified, the Committee has asserted its competence to consider whether derogations are consistent with the CCPR. See Nowak, supra note 134, at 86–7 and 101.

138 Cyprus v. Turkey, Report of the European Commission of Human Rights, 10 July 1976, available online at www.cyprus-dispute.org/materials/echr/index.html, at para. 512. See for further reference E. Wyler, L'illicité et la condition des personnes privées: La responsabilité internationale en droit coutumier et dans la convention européenne des droits de l'homme (1995), at 215.

139 The 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 970 UNTS 211. Eighty-seven states had ratified the 1969 International Convention as of 31 January 2012; available online at www.imo.org/About/Conventions/StatusOfConventions/Pages/Default.aspx.

140 Art. 221 LOSC (Measures to avoid pollution arising from maritime casualties): ‘1. Nothing in this part shall prejudice the right of states, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline and related interests including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty which may reasonably be expected to result in major harmful consequences’.

141 See generally ‘Article 221’, in M. Nordquist, S. Rosenne and A. Yankov (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. 4 (1991), at 303 et seq.; R. R. Churchill and A. V. Lowe, The Law of the Sea (1999), at 355.

142 The scope of the 1969 Intervention Convention was subsequently extended to other substances. See, e.g., the 1973 Protocol and the amendments of 1991, 1996 and 2002; available online at http://www.imo.org/Conventions/contents.asp?topic_id=258&doc_id=680.

143 See Arts. III and VIII of the 1969 Intervention Convention providing for, inter alia, obligatory conciliation proceedings if negotiations fail.

144 Art. V of the 1969 Intervention Convention; see also Art. 232 LOSC.

145 See supra note 140.

146 Art. XIX(1)(a) GATT: ‘If as a result of unforeseen developments and of the effect of the obligations incurred by a contracting party under this Agreement, . . . any product is being imported . . . in such increased quantities and under such conditions as to cause or threaten serious injury to domestic producers in that territory of like or directly competitive products, the contracting party shall be free, in respect of such product, and to the extent and for such time as may be necessary to prevent or remedy such injury, to suspend the obligation in whole or in part’.

147 Art. XX GATT: ‘General Exceptions. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: (a) necessary to protect public morals; (b) necessary to protect human, animal or plant life or health; . . . (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption’.

148 Art. XXI GATT: ‘Security Exceptions. Nothing in this Agreement shall be construed . . . (b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests . . . (iii) taken in time of war or other emergency in international relations’.

149 Arts. XIV and XIVbis GATS. Art. XIV(a) GATS, unlike Art. XX GATT, also establishes ‘public order’ as a possible exception.

150 See for instance Arts. 8, 27(2) and 39(3) TRIPS and Arts. (2)(2), (2)(5) and (5)(1)(2) of the WTO Agreement on Technical Barriers to Trade (TBT); see generally Ruiz-Fabri, H., ‘La nécessité devant le juge de l'OMC’, in Société française pour le droit international (ed.), Colloque de Grenoble: La nécessité en droit international (2007) 189Google Scholar.

151 The Appellate Body applies Art. XIX and the Safeguards Agreement jointly. The Safeguards Agreement establishes, for instance, an obligation to notify and consult with the concerned parties, the maximal duration and necessary review of measures and possible duties to compensate. For further reference see M. Matsushita, T. Schoenbaum and P. Mavroidis, The World Trade Organization. Law, Practice and Policy (2006), at 437 et seq.

152 WTO Agreement on Sanitary and Phyto-Sanitary Measures, especially Arts. 2 and 3.2.

153 Burke-White, W. and von Staden, A., ‘Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties’, (2007–08) 48 Virginia Law Journal 307Google Scholar, at 313.

154 See, e.g., the 2004 Canadian Model BIT, which contains a very detailed list of permissible exceptions. Canadian 2004 Model Foreign Investment Protection and Promotion Agreement (FIPA), Art. 10, available online at www.dfait–maeci.gc.ca/tna–nac/documents/2004–FIPA–model–en.pdf.

155 See Arts. 24 and 26 of the Norwegian Model BIT for the Promotion and Protection of Investments, Draft version of 19 December 2007, available online at http://ita.law.uvic.ca/investmenttreaties.htm.

156 This control by human rights monitoring organs has become standard practice although it is not explicitly provided for in the human rights treaties. See supra note 137; see also Art. 15(3) ECHR.

157 This with the exception of Art. XXI GATT.

158 See, e.g., Akande, D. and Williams, S., ‘International Adjudication on National Security Issues: What Role for the WTO?’, (2003) 43 VJIL 365Google Scholar. The dispute settlement bodies have so far not taken a position on the implications of the self-judging character of Art. XXI GATT. See infra note 174.

159 Joanna Gomula-Crawford, Cambridge, interview of 6 June 2008.

160 Art. 18 of the 2012 US Model BIT: ‘Essential Security. Nothing in this Treaty shall be construed: . . . 2. to preclude a Party from applying measures that it considers necessary for . . . the protection of its own essential security interests.’

161 See the references to the Russian Fur Seals controversy (1893), the Torrey Canyon case (1967) and the Fisheries Jurisdiction (Spain v. Canada) case (1998) in the ILC Commentary to Art. 25. ILC Commentary, supra note 44, at 81–2, paras. 6, 9 and 12. See also Treves, who emphasizes the ‘cross-fertilization effect’ between general international law and the law of the sea. T. Treves, ‘La nécessité en droit de la mer’, in Société française pour le droit international, supra note 150, 237 at 246.

162 A further critical distinction relates to their qualification as either primary or secondary rules. As the emergency exceptions have been incorporated at the level of primary norms, action taken on their basis does not constitute a treaty violation. The necessity defence of the law of state responsibility (Art. 25 of the ILC Articles), conversely, is generally qualified as a secondary norm, which merely precludes the wrongfulness of non-compliance with treaty obligations. See for further reference Binder, supra note 78, at 624 et seq.

163 Such explicit derogations are even more noteworthy in view of the margin of appreciation enjoyed by states as regards the implementation of their human rights obligations. See for margin of appreciation more generally Shany, Y., ‘Toward a General Margin of Appreciation Doctrine in International Law?’, (2005) 16 EJIL 907CrossRefGoogle Scholar.

164 Nowak, supra note 134, at 83 et seq. and 984 et seq. (Appendix listing notifications under Art. 4(3) CCPR until May 2004). Between May 2004 and January 2012 figures draw on notification statistics provided by the Austrian Foreign Ministry (Staatsnotariat). Notifications on file with the author.

165 Guatemala also argued the disastrous situation brought about by Hurricane Mitch (1998), Jamaica the emergency caused by Hurricane Dean (2007), and Venezuela the social unrest due to the country's economic crisis in 1989. Nowak, supra note 134, at 91 and 1038.

166 See for further reference C. Grabenwarter and K. Pabel, Europäische Menschenrechtskonvention (2012), at 11.

167 The UK terminated the derogation in March 2005. See ibid. for further reference.

168 The WTO Dispute Settlement Bodies have, however, interpreted the provision's elements restrictively and emphasized that reliance on Art. XIX GATT was admissible merely in exceptional situations. See e.g., Appellate Report Argentina: Safeguard Measures on Imports of Footwear, adopted 14 December 1999, WT/DS121/AB/R, at 28–34 and 53. For criticism as to the restrictive concretization see Sykes, A., ‘The Safeguards Mess: A Critique of WTO Jurisprudence’, (2003) 2 World Trade Review 261CrossRefGoogle Scholar.

169 Appellate Report United States: Import Prohibition of Certain Shrimp and Shrimp Products, adopted 12 October 1998, WT/DS58/AB/R, at 39 et seq.

170 Appellate Report Brazil: Measures Affecting Imports of Retreaded Tyres, adopted 3 December 2007, WT/DS332/AB/R.

171 Appellate Report China: Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, adopted 21 December 2009, WT/DS363/AB/R.

172 Appellate Report European Communities: Measures Affecting Asbestos and Asbestos-Containing Products, adopted 12 March 2001, WT/DS135/AB/R.

173 See generally Ruiz Fabri, supra note 150; R. Wolfrum, ‘Article XX: General Exceptions [Introduction]’, in Wolfrum, Stoll, and Hestermeyer, supra note 124, 455. More specifically see N. Wenzel, ‘Article XX: General Exceptions. (a) necessary to protect public morals’; in ibid., 479 at 480; P. T. Stoll and L. Strack, ‘Article XX: General Exceptions. (b) necessary to protect human, animal or plant life or health’, in ibid., 497; S. Reyes-Knoche and K. Arend, ‘Article XX: General Exceptions. (d) necessary to secure compliance with laws and regulations. . .’, in ibid., 527 at 528; N. Matz-Lück and R. Wolfrum, ‘Article XX: General Exceptions. Art XX (g) relating to the conservation of exhaustible natural resouces. . .’, in ibid., 544 at 545.

174 Art. XXI GATT was either excluded from the terms of reference of the panel or the dispute was concluded by friendly settlement. See H. P. Hestermeyer, ‘Art XXI: Security Exceptions’, in Wolfrum, Stoll, and Hestermeyer, supra note 124, 569 at para. 5.

175 The other BITs of relevance – the 1990 Argentina–UK BIT, the 1988 Argentina–Italy BIT and the 1991 France–Argentina BIT – do not contain emergency exceptions which would be comparable with Art. XI of the US–Argentina BIT.

176 See, e.g., Reinisch, supra note 78; Binder, supra note 78, at 629.

177 The ‘Torrey Canyon’, Cmnd 3246 (London, Her Majesty's Stationery Office, 1967).

178 d'état, Conseil, Société Nachfolger Navigation Co. Ltd, (1988) 104 Revue de droit international public et de la science politique 851Google Scholar. See also Heathcote, supra note 43, at 494.

179 For details on the necessity plea in specialized systems of international law see also the (2010) 41 NYBIL: ‘Necessity across International Law’.