An Inquiry whether the International Court of
Justice has found the right application of article 62
Vienna Convention on the Law of Treaties –
Fundamental Change of Circumstances?
Written by
Peter Szilvasi LLM. Candidate,
supervised by
Dr. I. Heko Scheltema,
at
The University of Amsterdam,
for the course
LLM. in European Union and Public International Law
2015
Word count: 13.990 Student number: 10866523
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T
ABLE OFC
ONTENTSTABLE OF CONTENTS ... i
INDEX OF AUTHORITIES ...iii
ABBREVIATIONS USED IN THE THESIS ... vii
KEYWORDS ... vii
ABSTRACT ...viii
INTRODUCTION ... 1
1.CIRCUMSTANCES CONCERNING THE DRAFTING OF ARTICLE 62 AND INHERENT PROBLEMS ... 3
1.1 Legal status of article 62 – the lex lata ... 3
1.2 Content and cumulative requirements of application ... 6
1.3 Debate over the inclusion of the rebus doctrine in the Vienna Convention on the Law of Treaties ... 7
1.4 Interpretation of the Vienna Convention on the Law of Treaties ... 9
1.5 The meaning of ‘fundamental’ ... 10
2.PROBLEMS ARISING FROM THE APPLICATION OF ARTICLE 62 ... 12
2.1 Analysis of the second requirement of article 62 - Fisheries Jurisdiction case: restrictive interpretation of ‘fundamental’ change ... 12
2.2 Vital Interests ... 15
2.3 Terminological difference regarding the nature of ‘change’ ... 15
2.4 Application of article 62 contravenes the intention of the drafters ... 16
2.5 Analysis of the fifth requirement of article 62 through the Dutch-Suriname Treaty on Development Assistance ... 17
2.6 An alternative approach to the ‘extent of obligations’ criteria – serious violation of international human rights law ... 20
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3.LACK OF CONSENSUS OVER POLITICAL CHANGE, ITS CONSEQUENCES IN APPLICATION,
AND INSUFFICIENT CONSIDERATION OF CLAIMS BY THE ICJ ... 22 3.1 Debate within the International Law Commission over political changes ... 22
3.2 Insufficient consideration of political change - the Gabcikovo-Nagymaros case .... 24
3.3 Judgements of the ICJ lack proper evaluation of article 62 claims ... 25
4.STATE PRACTICE CONFLICTS THE INTERPRETATION OF THE ICJ ... 27 4.1 Application of article 62 by the ICJ excludes it to be 'an instrument of
peaceful change' and disregards military-strategic realities ... 27
4.2 France’s withdrawal from the NATO Treaty and termination of bilateral
agreements with the US ... 27
4.3 Unilateral termination of the ABM Treaty by the USA... 30
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I
NDEX OFA
UTHORITIESInternational Treaties and related documents:
Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems 1972 (ABM Treaty)
<http://www.state.gov/www/global/arms/treaties/abm/abm2.html> accessed 10 July 2015
Charter of the United Nations (adopted 24 October 1945, entered into force 24 September 1973 – last amendment) 1 UNTS XVI
Cooperation agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia. Agreement between the Member States of the European Coal and Steel Community and the European Coal and Steel Community, of the one part, and the Socialist Federal Republic of Yugoslavia, of the other part. Final act. Signed in Belgrade on 2 April 1980 <http://aei.pitt.edu/41150/1/A4827.pdf> accessed 28 July 2015
Geneva Convention on the Law of the Sea (adopted 29 April 1958, entered into force 10 September 1964) A/CONF.13/L.58, 1958, UNCLOS, Official Records 2 146
Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 33 UNTS 993
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331
Memorandum of Understanding on Succession to the ABM Treaty 1997
<http://fas.org/nuke/control/abmt/docs/97092616_wpo.html> accessed 20 May 2015 Overeenkomst tussen het Koninkrijk der Nederlanden en de Republiek Suriname 1975
<http://www.suriname.nu/101alg/uitleveringsverdragnederlandsuriname.html> accessed 05 May 2015
Documents of, and related to the work of the International Law Commission:
A/CN.4/SR.694 Summary record of the 694th meeting (Extract from the Yearbook of the International Law Commission (1963) 1
A/CN.4/SR.695 Summary record of the 695th meeting (Extract from the Yearbook of the International Law Commission (1963) 1
A/CN.4/SR.696 Summary record of the 696th meeting (Extract from the Yearbook of the International Law Commission 1963) 1
A/CN.4/SR.697 Summary record of the 697th meeting (Extract from the Yearbook of the International Law Commission (1963) 1
ILC 1957 Draft Articles on the Law of Treaties with Commentaries: Article 19 Termination or suspension by operation of law. Case of fundamental breach of the treaty (conditions and limitations of application) Yearbook of the International Law Commission (1957) 2 31
ILC 1963 Draft Articles on the Law of Treaties with Commentaries, Yearbook of the International Law Commission (1963) 2 A/CN.4/163 209
ILC 1966 Draft Articles on the Law of Treaties with Commentaries, Yearbook of the International Law Commission (1966) 2 A/CN.4/SER.A/1966/Add.1 259
Reports of the International Law Commission to the General Assembly Yearbook of the International Law Commission (1966) 2 258
iv
Special Rapporteur, GG Fitzmaurice, ‘Second Report on the Law of Treaties’ in Yearbook of the International Law Commission (1957) 2 A/CN.4/SER.A/1957/Add.1 56
Special Rapporteur Waldock, ‘Second Report on the Law of Treaties’ in Yearbook of the International Law Commission (1963) 2 A/CN.4/SER.A/1963/ADD.1 83
Website of the International Law Commission “Origin and background” <http://legal.un.org/ilc/ilcintro.shtml> accessed 7 May 2015
Case law:
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia)
ICJ Reports 2007 60
Avena and other Mexican Nationals (Mexico v United States of America) ICJ Reports 2004 48 A. Racke GmbH & Co. v Hauptzollamt Mainz Case C-162/96 ECR-I 3655
Case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 25 September 1997, ICJ
Reports 1997 7
Case of the Free Zones of Upper Savoy and the district of Gex 1932 PCIJ 156-158 < http://www.icj-cij.org/pcij/serie_AB/AB_46/01_Zones_franches_Arret.pdf> accessed 10 June 2015
Dissenting Opinion of Judge Luis Padilla Nervo, Fisheries Jurisdiction (United Kingdom v. Iceland), Order of the Court ICJ Reports 1973 20
Dissenting Opinion of Judge Luis Padilla Nervo, Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court ICJ Reports 1973 37
Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, ICJ Reports 1973 3 LaGrand Case (Germany v United States of America) ICJ Reports 2001 501
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)
ICJ Reports 2004 174
Nationality Decrees Issued in Tunisia and Morocco, PCIJ, Series B, no. 4, 29
Official documents of National archives:
A Statement Made by Russian President Vladimir Putin on December 13, 2001, Regarding the Decision of the Administration of the United States of America to Withdraw from the Antiballistic Missile Treaty of 1972 <http://www.state.gov/t/isn/10527.htm> accessed 20 May 2015
Exchange of Notes Setting the Fisheries Dispute between the Government of the United Kingdom of Great Britain and the Government of Iceland, UKTS 17 (1961) <http://treaties.fco.gov.uk/docs/pdf/1961/TS0017.pdf> accessed 14 May 2015
Government of Iceland’s aide-mémoire of 31 August 1971, Annex C to United Kingdom Application, Annex 14 <http://www.icj-cij.org/docket/files/55/9409.pdf> accessed 28 July 2015
Overeenkomst tussen het Koninkrijk der Nederlanden en de Republiek Suriname 1975
<http://www.suriname.nu/101alg/uitleveringsverdragnederlandsuriname.html> accessed 05 May 2015
The Department of State Bulletin – The official weekly record of United States Foreign Policy (May 2, 1966) 54 699 <https://ia801403.us.archive.org/19/items/departmentofstat5466unit/departmentofstat5466unit_bw.pdf> accessed 12 June 2015
v
Tractatenblad van het Koninkrijk der Nederlanden (1983) No. 6, note 7
<https://zoek.officielebekendmakingen.nl/trb-1983-6.pdf> accessed 10 July 2015
Protocol voor Procedureregels inzake de Ontwikkelingssamenwerking, Tractatenblad van het Koninkrijk der Nederlanden (1976) No.8 <https://zoek.officielebekendmakingen.nl/trb-1976-143.pdf> accessed 03 June 2015 US Department of State, Treaty Between the United States of America and the Russian Federation On Strategic Offensive Reductions (The Moscow Treaty) 24 May 2002 <http://www.state.gov/t/isn/10527.htm> accessed 20 May 2015
Books:
Antonios Tzanakopoulos and Sotirios-Ioannis Lekkas Pacta sunt servanda versus Flexibility in the Suspension
and Termination of Treaties (2013) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2362526 accessed 08 May 2015
Anthanassios Vamvoukos, Termination of Treaties in International Law (Clarendon Press 1985) Arthur Nussbaum, Geschichte des Völkerrechts in gedrängter Darstellung (Beck 1960)
Hersch Lauterpacht, The Development of International Law by the Permanent Court of International Justice (Longmans, Green, 1934)
Karl Joseph Partsch, ‘Vital Interests’ in Encyclopedia of Public International Law (North-Holland 2000) Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Brill Nijhoff, 2009) Olivier Corten, Pierre Klein: The Vienna Conventions on the Law of Treaties Volume II, Part V Invalidity, Termination and Suspension of the Operation of Treaties (Oxford University Press 2011)
Oliver Dörr, Kirsten Schmalenbach, Vienna convention on the law of treaties A commentary, Part V. Invalidity, Termination and Suspension of the Operation of Treaties (Springer Verlag 2012)
Taslim Olawale Elias, The Modern Law of Treaties (Oceana Publications 1974) Thomas of Aquinas, Summa Theologica II
Oxford Dictionary of Law (7th edn, Oxford University Press 2009)
Journal and online Articles:
Baron de Taube, ‘L’inviolabilite des Traits’, Recueil des Cours [1930]
Betty Sedoc-Dahlberg, ‘The Dutch Caribbean: Prospects for Democracy’ [1990] 5 Caribbean Studies 20 Chesney Hill, ‘The Doctrine of Rebus Sic Stantibus in International Law’ [1934] The University of Missouri Studies vol. IX, no 3 18
Christina Binder, ‘Stability and Change in Times of Fragmentation: The Limits of Pacta Sunt Servanda Revisited’ [2012] LJIL 25(4)
Christina Binder, ‘Summary – The Limits of Pacta Sunt Servanda in International Law’ Beiträge zum ausländischen öffentlichen Recht und Völkerrecht (2013) 245 <http://www.mpil.de/files/pdf3/beitr2452.pdf> accessed 01 May 2015
Dionne Bosma, ‘The Dutch-Suriname Treaty on Development Assistance: A Correct Appeal to a Fundamental Change of Circumstances?’ [1990] 3 LJIL 204
Egon Schwelb, ‘Fundamental Change of Circumstances: Noten on Article 59 of the Draft Convention on the Law of Treaties’ Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht [1969] vol. XXIX 43
vi
Eirik Bjorge, ’Introducing The Evolutionary Interpretation of Treaties’ Blog of the European Journal of International Law (2014) <http://www.ejiltalk.org/introducing-the-evolutionary-interpretation-of-treaties/> accessed 20 July 2015
Eric Stein and Dominique Carreau, ’Law and Peaceful Change in a Subsystem: ”Withdrawal” of France from the North Atlantic Treaty Organization’ [1968] AJIL 62(3)
Federation of American Scientists, Anti-Ballistic Missile Treaty Chronology <http://fas.org/nuke/control/abmt/chron.htm> accessed 22 July 2015
György Haraszti, ’The effect of a change of circumstances upon the operation of international treaties’ [1968] Questions of International Law 74
John B. Rhinelander, ‘The ABM Treaty – Past, Present and Future (Part II)’ [2001] Journal of Conflict and Security Studies 6(2)
John J. Mearsheimer, ‘Imperial by Design’ [2011] The National Interest 111
Jonathan Masters, ’Ballistic Missile Defense’ (2014) < http://www.cfr.org/missile-defense/ballistic-missile-defense/p30607> accessed 20 July 2015
Julian Davis Mortenson, ’The travaux of the travaux: is the Vienna Convention Hostile to Drafting History?’ American Journal of International Law [2013] 107(4)
Martin Dixon, ‘The Danube Dams and International Law’ [1998] The Cambridge Law Journal 57(1) 1-4 Missile Defense Agency, The System – The Threat – Ballistic Missile Proliferation (2015)
<http://www.mda.mil/system/threat.html> accessed 20 July 2015
NPQ Global, ‘Arms Agreements Are Invalid If US Abandons ABM Treaty’ [2001] New Perspectives Quarterly 18(4)
Oliver Lissitzyn, ‘Stability and Change: Unilateral Denunciation or Suspension of treaties by reason of changed circumstances’ Proceedings of the American Society of International Law at Its Annual Meeting (1921-1969) [1967] 61
Oliver Lissitzyn, ’Treaties and Changed Circumstances (Rebus Sic Stantibus)’ [1967] 61 American Journal of International Law 915
Rein Müllerson, ‘The ABM Treaty: Changed Circumstances, Extraordinary Events, Supreme Interests and International Law’ [2001] 50(3) International and Comparative Law Quarterly
The Economist, ‘The unsheltering sky’ (2014)
http://www.economist.com/news/technology-quarterly/21615068-even-new-technology-americas-multi-billion-dollar-efforts-build-shield accessed 20 July 2015
Other Sources:
Declaration on the Establishment of a New International Economic Order 1974, A/RES/S-6/3201 <http://www.un-documents.net/s6r3201.htm> accessed 10 July 2015
Takhmina Karimova, ‘What amounts to a serious violation of international human rights law?’ (2014) <
http://www.geneva-academy.ch/docs/publications/Briefings%20and%20In%20breifs/Briefing%206%20What%20is%20a%20seriou s%20violation%20of%20human%20rights%20law_Academy%20Briefing%20No%206.pdf> accessed 05 July 2015
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A
BBREVIATIONS USED IN THE THESISABM Treaty Anti-Ballistic Missile Treaty
ECJ European Court of Justice
EU European Union
ICBM Inter-Continental Ballistic Missile
ICJ International Court of Justice
ILC International Law Commission
NATO North Atlantic Treaty Organization PCIJ Permanent Court of International Justice
UK United Kingdom of Great Britain
UN United Nations
US United States of America
USSR Union of Soviet Socialist Republics VCLT Vienna Convention on the Law of Treaties
KEYWORDS
Article 62, Vienna Convention on the Law of Treaties, fundamental change of circumstances, rebus sic stantibus, change, denunciation, suspension, stability, pacta stunt servanda, International Law Commission, evolutionary interpretation, political change, peaceful change, Fisheries
Jurisdiction, Gabcikovo-Nagymaros, ABM Treaty, Dutch-Suriname Treaty on Development Assistance
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BSTRACTThe following thesis is a contribution to the long standing debate between the stability of treaty relations (pacta sunt servanda) and the need for the possibility of withdrawal from and the suspension or termination of treaties in changed circumstances (article 62 Vienna Convention on the Law of Treaties 1969 [‘VCLT’]). Its primary purpose is to determine whether the International Court of Justice (ICJ) has found the right application of article 62? The research was based on primary, secondary sources of international law, and academic contributions. The main sources of the research were article 62, jurisprudence of the ICJ on article 62, commentaries on the Vienna Convention on the Law of Treaties, travaux préparatoires of the VCLT, diplomatic records, published books and articles of experts of treaty law, and journal, online articles. The thesis follows empirical legal research methodology.
First it will introduce the reader to the content and application of article 62. The first section introduces the context of article 62 and gives a general overview of the thesis. The second section of the thesis shows the content of the doctrine and introduces the inherent problems stemming from its application. The third section claims that fundamental change has been interpreted by the ICJ too restrictively. Further, three claims are made: first, that the application of article 62 by the ICJ contravenes the intention of the drafters; second that the application contravenes
considerations of political change; and third that the application excludes to be an instrument of peaceful change in the realities of military-strategic relations.
The thesis concludes that the ICJ in its jurisprudence did not find the right application of fundamental change of circumstances: the ICJ in its judgements favored the sanctity of treaties and at the same time over-restricted the application of fundamental change of circumstances. It is claimed that the ICJ set such a high threshold for the application of article 62 that is virtually impossible to satisfy and therefore the ICJ contributed to the insufficiency that international law provides to accommodate change.
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I
NTRODUCTIONThe tension between stability of treaty relations and the need for change in cases of fundamental change of circumstances has been in the focus of fundamental theoretical and practical debates in international law. As treaties ‘freeze’ the law at the moment of adoption, they are in permanent tension with the pass of time and changed circumstances1. Relying on the finding of Christina Binder, that international law offers only insufficient means to accommodate change2, this thesis will examine whether if that finding is true, and if so, what may the reasons be of the insufficiency.
The first part of this thesis presents the state of the law with respect to fundamental change of circumstances. It gives an outline of the drafting procedure by the International Law Commission (ILC) on the law of treaties and also shows the connection between the doctrine rebus sic stantibus and article 62 - fundamental change of circumstances. Further the cumulative requirements of article 62 are put forward, the interpretation of the Vienna Convention on the Law of Treaties is shown, and the meaning of the term ‘fundamental’ is analyzed. Through an analysis of the travaux préparatoires the problems of drafting is also provided.
The second part is concerned with the problems arising out of the application of article 62 by the ICJ. The primary claim in this part of the thesis is that the ICJ by interpreting ‘fundamental change’ according to the traditional viewtook a very restrictive approach and set such a high threshold of application that seriously undermines the success of possible claims. In order to show that, the Fisheries Jurisdiction case will be analyzed in connection with the reasoning of Judge Luis Padilla Nervo in his strong dissenting opinion to the case. In the second and third sections of the second part the ambiguity over ‘vital interests’ and the terminological inconsistency around the nature of ‘change’ shown. Further, the third section claims that the application of article 62 contradicts the intention of the drafters. Section 2.5 provides an analysis of the fifth cumulative requirement of article 62 based on the Dutch-Suriname Treaty on Development Assistance, namely that the effect of the change is to transform radically the extent of obligations still to be performed under the treaty. It is claimed that the ICJ did not properly apply the criterion: evolutionary treaty interpretation method is offered as a solution to apply article 62 in a way more friendly to the drafting history.
1
Christina Binder, ‘Summary – The Limits of Pacta Sunt Servanda in International Law’ Beiträge zum ausländischen öffentlichen Recht und Völkerrecht (2013) 245 <http://www.mpil.de/files/pdf3/beitr2452.pdf> accessed 01 May 2015 2 Christina Binder, ‘Stability and Change in Times of Fragmentation: The Limits of Pacta Sunt Servanda Revisited’ [2012] 25(4) LJIL 909-934
2
The third part introduces different opinions of members of the ILC and future state signatories regarding the inclusion of political changes as a possible ground for fundamental change of
circumstances. The judgement of the ICJ in the Gabcikovo-Nagymaros case will be scrutinized. It is claimed in section 3.2 that the Court erred in finding that political change was not closely related to the Treaty between Hungary and Czechoslovakia. This part reaches the conclusion that the
interpretation of the ICJ impedes the application of article 62 in the context of political and ideological change. The final part of this section claims that the Court has a very long tendency of providing judgements on fundamental change of circumstances that lack proper evaluation of parties’ claims.
The fourth part highlights that state practice is contrary to the approach of the ICJ. The claim will be advanced that the interpretation of article 62 excludes to be an ‘instrument of peaceful change’ as the ICJ failed to take into proper consideration state practice when military-strategic considerations closely related to state sovereignty were at stake. This will be shown through France’s withdrawal from the NATO Command and its termination of bilateral treaties with the US. A second example will be the unilateral withdrawal of the US from the ABM Treaty. Although none of these cases were adjudicated by the ICJ, the cases are analyzed according to the jurisprudence of the ICJ. This section concludes that in none of these cases would have the ICJ accepted the application of article 62. Regardless that assumed outcome, the fundamental change of circumstances argument has been successfully advanced in diplomatic and political channels and therefore provided a mean to
accommodate change.
The fifth part concludes the thesis. In the last part of this thesis, the conclusion is reached that the ICJ has not found the right balance between the stability of treaty relations and the fundamental change of circumstances exception to that rule.
Although it is claimed by Tzanakopoulos and Lekkas that whatever tension between stability and change is apparent, rather than real3, in the following sections it will be shown that the tension is real and tangible. The whole debate between stability and change, and the challenging task in applying article 62 can be summarized in the following terms: ‘The Commission should exercise great caution and avoid opening the door to abuses, but it should not fail to recognize the rights of the party to which a change of circumstances might be unduly prejudical’4.
3 Antonios Tzanakopoulos and Sotirios-Ioannis Lekkas, ‘Pacta sunt servanda versus Flexibility in the Suspension and Termination of Treaties’ 13, 24 (2013) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2362526 accessed 08 May 2015
4 Extract from the Yearbook of the International Law Commission 1 [‘YBILC’] (1963) (A/CN.4/SR.694 Summary record of the 694th meeting) 138 [21]
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1.
C
IRCUMSTANCES CONCERNING THE DRAFTING OF ARTICLE62
AND INHERENTPROBLEMS
1.1 Legal status of article 62 – the lex lata
In this section the legal status of article 625 within international legal order will be presented. The VCLT was drafted by the International Law Commission (ILC). The ILC was established as a subcommittee of the sixth committee of the United Nations (UN) in 19496. Its legal capacity to act stems from article 13 UNC7, its main task is the codification and progressive development of international law. The work of the ILC consists of a long drafting procedure surrounded by continuous debates within the ILC and dialogue with states. When codifying existing rules of international law into articles, certain articles may be accepted as having customary status in international law. Those articles which are accepted as customary, are binding on subjects of international law. By virtue of article 38(b) ICJ Statute8, the ICJ shall apply international custom in its judgements and advisory opinions. Hence, the importance of the question, whether article 62 has customary status.
Article 62 codifies the principle of Conventio omnis intellegitur clausula rebus sic stantibus9, which might date back to the Greek city-States10, or Roman Law11. Even though the doctrine can be traced back to Thomas of Aquinas12 and canon law13 with certainty, its customary status is uncertain. The principle is well-known in national legal systems: in British and common law it is known as ‘the doctrine of frustration’14, in French, Spanish and Italian law it is known as the theory of
‘imprévision’15, in Swiss law as clausula rebus sic stantibus and in German law as Wegfall der
5 Article 62 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (‘VCLT’)
6 Website of the International Law Commission ‘Origin and background’ (2015) <http://legal.un.org/ilc/ilcintro.shtml> accessed 7 May 2015
7 Article 13 Charter of the United Nations (adopted 24 October 1945, entered into force 24 September 1973 – last amendment) 1 UNTS XVI
8 Article 38(b) Statute of the International Court of Justice (‘ICJ Statute’) (adopted 26 June 1945, entered into force 24 October 1945) 33 UNTS 993
9 Latin, means ‘matter so standing; in the existing state of matters’. A phrase used when a state or an international organization seeks to avoid or renegotiate its treaty obligations because a change of circumstances has rendered the objective of the treaty difficult or impossible. From the Oxford Dictionary of Law (7th edn, Oxford University Press 2009) 454
10 György Haraszti, ’The effect of a change of circumstances upon the operation of international treaties’ [1968] Questions of International Law 74
11 Special Rapporteur GG Fitzmaurice, ‘Second Report on the Law of Treaties’ in YBILC (1957) 2 A/CN.4/SER.A/1957/Add.1 56 footnote 76. See also Chesney Hill ‘The Doctrine of Rebus Sic Stantibus in International Law’ (1934), The University of Missouri Studies vol. IX, no 3 18
12
Special Rapporteur Waldock, ‘Second Report on the Law of Treaties’ in YBILC (1963) 2
A/CN.4/SER.A/1963/ADD.1 83 [8]. See also Thomas of Aquinas, Summa Theologica II 2, 9, 110 See further Baron de Taube, ‘L’inviolabilite des Traits’, 11 Recueil des Cours, [1930] 361
13 Arthur Nussbaum, Geschichte des Völkerrechts in gedrängter Darstellung (Beck 1960) 74, 124 14
Malcolm N Shaw & Caroline Fournet in Olivier Corten and Pierre Klein, The Vienna Conventions on the Law of
Treaties – A Commentary Part V Invalidity, Termination and Suspension of the Operation of Treaties (Oxford
University Press 2011) 1415-1416
4
Geschaftsgrundlage16. Vamvoukos wrote extensively on how municipal courts apply the rebus sic stantibus principle17. Through the judicial acceptance and continuous application of rebus sic stantibus, it has been accepted as a general principle of international law18. Hence, its application is possible by virtue of article 38(d) ICJ Statute. The Permanent Court of International Justice (PCIJ) in the Free Zones case held that the facts at hand could not justify the application of the principle19. From that decision Lauterpacht inferred that the Court was ‘prepared to recognize the principle’20. Special Rapporteur Waldock did not agree and claimed that the Court confined itself to the case at hand, without taking a position on rebus sic stantibus21. The ICJ in the Fisheries Jurisdiction case used the following ambiguous description of the customary status of article 62: ‘Article 62 of the Vienna Convention on the Law of Treaties […] may in many respects be considered as a
codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances’22. This statement, at the same time means that article 62 may (at least) in some respects not be considered as a codification of customary law. More recently, the ICJ in the Gabcikovo-Nagymaros case re-stated its position on the customary status, unfortunately without any further clarification: ‘The Court takes the view that in many respects this [customary status] applies to the provisions of the Vienna Convention concerning the termination and the suspension of the operation of treaties, set forth in Articles 60 to 62’23. It is claimed that the above quoted parts of the judgements cannot be considered as adequate judicial pronunciation of
customary status. The language used in both cases is vague and ambiguous, and thus it cannot be said with certainty whether article 62 is customary in its entirety, or in the alternative which parts of article 62 are customary and which are not.
Authors of Commentaries on the Vienna Convention on the Law of Treaties have faced the same problem. Villiger states that article 62 ‘can be considered as declaratory of customary international law’ relying on the above mentioned judgements and the Racke case by the European Court of Justice (ECJ)24. He further notes that States, members of the ILC and authors regarded article 62 as having customary status25.
Commission (1963) 1 152 [26]
16 Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Brill Nijhoff 2009) 766 17 Anthanassios Vamvoukos, Termination of Treaties in International Law (Clarendon Press 1985) Chapter 2, 31-59 18
ibid 57
19 Case of the Free Zones of Upper Savoy and the district of Gex 1932 PCIJ 156-158 <http://www.icj-cij.org/pcij/serie_AB/AB_46/01_Zones_franches_Arret.pdf> accessed 10 June 2015
20 H. Lauterpacht, The Development of International Law by the Permanent Court of International Justice (Longmans, Green, 1934) 43 cited in Fitzmaurice ‘Second Report’ (n 11) 65 [144]
21
Waldock, ‘Second Report’ (n 12) 80-81
22 Fisheries Jurisdiction case (Federal Republic of Germany v Iceland), Judgment, 2 February 1973, ICJ Reports 1973 63 [36]
23Case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 25 September 1997, ICJ Reports 1997 38 [46]
24 Case C-162/96 A. Racke GmbH & Co. v Hauptzollamt Mainz ECR-I 3655 25 Villiger (n 16) 780
5
The ECJ in the Racke judgement held, ‘even though the Vienna Convention does not bind either the Community or all its Member States, a series of its provisions, including Article 62, reflect the rules of international law which lay down, subject to certain conditions, the principle that a change of circumstances may entail the lapse or suspension of a treaty’26. However, this statement explicitly relied on the above quoted dubious phrasing of the Fisheries Jurisdiction case. Shaw and Fournet in the Corten-Klein Commentary notes ‘The customary status of the principle as embodied in Article 62 is far from obvious’27. Pointing to the ever cautions approach of states as well as courts to article 62 and enumerating the same line of authoritative cases, they reach the ultimate conclusion that article 62 has customary status28. Giegerich in the Commentary by Dörr and Schmalenbach highlights that there was no agreement at the time of drafting whether the principle rebus sic stantibus formed part of customary law29. The Commentary describes the state of the law through the above mentioned Free Zones and Fisheries Jurisdiction cases. At the same time the precedential value of the Racke case is highly contested30 as the ECJ had only limited power as to assess
whether the Council made manifest errors in reaching its conclusion that the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia31 could be terminated based on the doctrine rebus sic stantibus. The ECJ noted: ‘it does not appear that […] the Council made a manifest error of assessment’32 in suspending the trade concessions provided for by the Cooperation Agreement. The precedential value is discounted further as in later cases the ECJ refrained from relying on the same principle and on international law because it was claimed to produce uncertain effects possibly outside the framework of EU law33. Clarification of the customary status of article 62 is a topic worth to be considered in future research. Much is left to interpretation and foreseeability of the law is not achieved. Arguably, a legal loophole was created34 which has not been revised. Regardless the ambiguity introduced above, in this thesis it is recognized that article 62 is widely accepted35 as reflecting customary principles and as embodied in article 62 it is an authoritative codification of custom. For that reason article 62 will be considered as customary throughout the thesis. The approach of the ICJ is to admit the existence of the rebus sic stantibus doctrine, but grant only a severely restricted scope to its application: ‘International law admits that a fundamental change in the circumstances which
26 (n 24) 3700 [24]
27 Corten and Klein (n 14) 1416 [7] 28
ibid 1419 [15]
29 Oliver Dörr, Kirsten Schmalenbach, Vienna convention on the law of treaties A commentary, Part V. Invalidity, Termination and Suspension of the Operation of Treaties (Springer Verlag, 2012) 1101 [103]
30 ibid 1102 [106] 31
Cooperation agreement between the European Economic Community and the Socialist Federal Republic of
Yugoslavia. Agreement between the Member States of the European Coal and Steel Community and the European Coal and Steel Community, of the one part, and the Socialist Federal Republic of Yugoslavia, of the other part. Final act. Signed in Belgrade on 2 April 1980 <http://aei.pitt.edu/41150/1/A4827.pdf> accessed 28 July 2015
32
Case C-162/96 A. Racke GmbH & Co. v Hauptzollamt Mainz ECR-I 3655 3707 [56] 33 (n 29) 1102 [107]
34 Corten, Klein (n 14) 1417 [8]
6
determined the parties to accept a treaty, if it has resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, afford the party affected a ground for invoking the termination or suspension of the treaty’36.
1.2 Content and cumulative requirements of application Article 62 reads as:
‘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’37.
The textual analysis of article 62 leads to certain requirements that have to be satisfied cumulatively in order to bring a successful claim. The five cumulative requirements imposed by article 62 that will be used throughout this thesis in order to test whether or not the
principle was applied correctly, or could have been applied correctly are the following38:
1. The change concerns circumstances existing at the time of the conclusion of the treaty.
2. The change is fundamental. 3. The change is unforeseen.
4. The existence of circumstances constituted an essential basis for the consent of the parties to be bound by the treaty; and
5. The effect of the change is to transform radically the extent of obligations still to be performed under the treaty.
36 Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, ICJ Reports 1973 3 [36] 37
Olivier Corten, Pierre Klein: The Vienna Conventions on the Law of Treaties Volume II, Part V Invalidity, Termination and Suspension of the Operation of Treaties (Oxford University Press, 2011) 1411
38 Dionne Bosma, ‘The Dutch-Suriname Treaty on Development Assistance: A Correct Appeal to a Fundamental Change of Circumstances?’ [1990] 3 LJIL 204
7
These conditions will be referred to in the thesis as first, second, third, fourth and fifth conditions. Special attention will be given to the second requirement in section 2.1: through the Fisheries Jurisdiction case it will be shown, that the approach of the ICJ makes it virtually impossible to satisfy that requirement. The fifth requirement will also be given close consideration in section 2.5, where the approach of the ICJ will be applied to the Dutch-Suriname Treaty on Development Assistance. The other conditions are not analyzed in this thesis as their application caused no controversy. The first condition is a factual matter, the third condition is likely to be imputed rather than shown as a fact, and the fourth condition has been accepted as satisfied by the Court in the cases it has dealt with.
1.3 Debate over the inclusion of the rebus doctrine in the Vienna Convention on the Law of Treaties
Some members of the ILC and jurists who believed in the sanctity of the pacta sunt servanda rule strongly opposed the inclusion of the rebus sic stantibus doctrine in the Vienna Convention39. Early debates are taken note of in the travaux préparatoires of the VCLT, however great majority of the records are dedicated to the arguments for the inclusion of the rebus doctrine to the Vienna
Convention40.
Emphasizing the strict application of the pacta stunt servanda principle and good faith obligations to respect treaty relations can be traced back to Grotius41. Strong criticism against the doctrine was formed by Special Rapporteurs Fitzmaurice and Waldock. Fitzmaurice put forward that ‘It is all too easy to find grounds for alleging a change of circumstances, since in fact, in international life, circumstances are constantly changing42’ and Waldock added that there had been an ‘almost universal distrust to the doctrine’43. Waldock claimed that state practice had indicated a wide acceptance that a fundamental change of circumstances may justify the termination of a treaty; however a strong disposition to the right of termination was also present44. On behalf of jurists of his generation Mr. Amado noted that they should advise caution because of the exceptional
character of the rebus doctrine and that those who believed in the inviolability of treaties adopted a defensive attitude to the rebus clause45.
Others had promoted a much more lenient approach that was finally accepted by arguing for a
39 Egon Schwelb, ‘Fundamental Change of Circumstances: Notes on Article 59 of the Draft Convention on the Law of Treaties’ Zeitschrift für Auslandisches Öffentliches Recht und Völkerrecht [1969] vol. XXIX 43
40
For an exhaustive overview of the history of the doctrine see Haraszti (n 10) 74-84
41 A/CN.4/SR.694 Summary record of the 694th meeting Extract from the YBILC (1963) 1 136 [7] 42 Fitzmaurice, ‘Second Report’ (n 11) 56 footnote 142
43
Waldock, ‘Second Report’ (n 12) 80 [2] 44 ibid 81 [4]
45 Schwelb (n 39) 43 See also A/CN.4/SR.694 Summary record of the 694th meeting Extract from the YBILC (1963) 1 142 [64]
8
positive wording46 and against that the cumulative requirements, which ‘would mean that the rule would practically never apply’47. Mr. Tunkin reasoned for the inclusion of the rebus doctrine in the following terms: ‘The rule in article 22 was objectively necessary. The development of international law was determined by the laws of development of human society. If a rule of law came into
conflict with new social forces, it must give way to those forces. It was therefore clear that the rule in article 22 served a useful purpose by providing one of several legal possibilities for the
adaptation of rules of law to the requirements of life’.48 Further, he found acceptable the unilateral right of termination as ‘situations could arise in which no other course was open to the State concerned. That State could have valid reasons for terminating the treaty or withdrawing
unilaterally from it, and its right to do so should be recognized.’49 Sir Humpley Waldock although forming criticism against the doctrine recognized that termination was a necessary element, he reasoned in the following terms: ‘to oblige one of the parties to maintain a treaty because it had failed to persuade the other to revise it would be to place one at the mercy of the other's
intransigence and would be contrary to the doctrine’50. Mr. Tunkin understood that development in life can have the effect of ‘making a treaty out of date’51. Mr. Bartos found the rebus doctrine necessary in order to avoid ‘insoluble problems’52 which arose had the pacta stunt servanda principle been applied literally and without exceptions. He claimed, such application would lead to absurd situations, impossibilities, provoke disputes and hamper relations between states. He
recognized the rebus doctrine as a tool to mitigate inconsistencies of pacta stunt servanda and as a step towards justice ‘that was not abstract, but real’, founded on elements of international life53. Mr. de Luna regarded rebus as a particular aspect of peaceful change and as a safety-valve for the law of treaties by mitigating the rigidity of pacta stunt servanda54. He observed that the need for a doctrine of peaceful change has been greater in modern times and the trend of universalization of
international law should result in conventional law becoming more flexible.55 He concluded his observations by pointing out that ‘to enforce treaties too strictly might encourage their breach’56. His observation is shared by the scholar Lissitzyn, who claimed that community interest may also be served by putting an end to obligations which become burdensome, and using legal means of termination excludes attempts to exact their performance, which would threaten the maintenance of stability and peace57.
46
Schwelb (n 39) 45
47 A/CN.4/SR.695 Summary record of the 695th meeting Extract from the YBILC (1963) 1 145 [21] 48 ibid [19]
49 ibid [24] 50
A/CN.4/SR.697 Summary record of the 697th meeting Extract from the YBILC (1963) 1 157 [10] 51
A/CN.4/SR.696 Summary record of the 696th meeting Extract from the YBILC (1963) 1 148 [55] 52 A/CN.4/SR.695 Summary record of the 695th meeting Extract from the YBILC (1963) 1 148 [56] 53 ibid [56]
54
A/CN.4/SR.696 Summary record of the 696th meeting Extract from the YBILC (1963) 1 151-152 [20]-[22] 55 ibid 152 [24]
56 ibid 153 [33]
9
The most important considerations for the inclusion of the doctrine in the Vienna Convention are the following: a) if a rule of law comes into conflict with new social forces, law must give way to social forces58, b) the need for a doctrine of peaceful change is greater in modern times59, c) stemming from universalization and socialization, conventional law should be more flexible60, d) enforcing treaties too strictly might encourage their breach61, e) the field of application of article 22 was limited and its importance should not be over-estimated62. Although members of the ILC had a different understanding as to the exact meaning and application of fundamental change of
circumstances, they all agreed that the application of the doctrine must be properly circumscribed with the necessary safeguards63. The Commission attached ‘great importance to the strict
formulation’64 of the article in order to prevent abuses. From the above quoted lines and the long debate surrounding article 62 it can be inferred that article 62 was intended to be relied on in multiple instances. The ICJ however up until today has found no such a case in which the application of the doctrine could be found.
1.4 Interpretation of the Vienna Convention on the Law of Treaties
Relations between parties are governed by rules, however from time to time rules prove to be ambiguous or give ground to multiple interpretations. In order to be able to decide which
interpretation should be accepted by a court, treaties have to be interpreted in line with article 31 VCLT 196965. According to article 31 VCLT, treaties shall be interpreted in good faith, in
accordance with the ordinary meaning of their terms, in their context and in the light of the object and purpose of the whole treaty66. Further, any subsequent agreement of the parties regarding interpretation, any subsequent practice in the application of the treaty, and any relevant rules of international law applicable between the parties shall be taken into account, together with the context67. As per article 4 VCLT68, this criterion applies only to treaties concluded after the entry into force of the VCLT. Seemingly, there is a problem: according to which principles or set of rules can the Vienna Convention on the Law of Treaties be interpreted? Although it was not clear,
whether the final version of article 31 in the drafting procedure was codification of customary law
circumstances’ Proceedings of the American Society of International Law at Its Annual Meeting (1921-1969) [1967] 61 189
58 A/CN.4/SR.695 Summary record of the 695th meeting Extract from the YBILC (1963) 1 145 [19] 59 A/CN.4/SR.696 Summary record of the 696th meeting Extract from the YBILC (1963) 1 152 [22] 60 ibid [24]
61
ibid 153 [33] 62
ibid 155 [55]
63 As inferred from the Summary records of the 694th-697th meetings of the ILC.
64 ILC 1966 Draft Articles on the Law of Treaties with Commentaries (‘1966 Draft’), Yearbook of the International Law Commission (1966) 2 A/CN.4/SER.A/1966/Add.1 259 [9]
65
Article 31 VCLT (n 5) 66 Article 31(1) VCLT (n 5) 67 Article 31(3) a-c VCLT (n 5) 68 Article 4 VCLT (n 5)
10
or rather progressive development, the Convention itself rendered interpretation principles
customary69. By now it is accepted that article 31 VCLT possesses customary status: it has been so declared by the ICJ in the LaGrand70, Avena71 and Croatia v Serbia Genocide72 cases and further in the Advisory Opinion on the Wall73. By virtue of the customary status, article 31 VCLT can be applied retroactively, and therefore any article of the Vienna Convention on the Law of Treaties, including article 62 can indeed be interpreted according to article 31 VCLT. Supplementary means of treaty interpretation are provided by article 32 VCLT74, which also has an accepted customary status75.
1.5 The meaning of ‘fundamental’
Bosma argues that regardless the fact that the ICJ interpreted ‘fundamental’ as a change that
‘imperils the existence or the vital development of one of the parties’, the fundamental nature of the change has a different threshold of application as most authors and the International Law
Commission did not agree with the interpretation of the ICJ76. According to the understanding of the ILC and many authors the change is fundamental, if it results in an imbalance of obligations, which becomes unnecessary or intolerable77. The ILC did not define what is meant by fundamental, rather it explained in what situations the doctrine may apply. Not even an exhaustive research of the travaux préparatoires of article 62 has resulted in finding a definition or set of criteria that would define the meaning or content of ‘fundamental’. Some guidance as to the meaning however can be traced from the Second Report of Special Rapporteur Fitzmaurice on article 1978 – ‘Fundamental breach’79. According to him, a breach has fundamental character if the breach goes to the
foundation of the treaty and calls in question the continued validity or possibility of the treaty relationship. In 19(2) he adds, a breach is fundamental, if it is tantamount to a denial of treaty obligation such as to either a) destroy the value of the treaty for the other party, b) justify the conclusion that no further confidence can be placed in the execution of the treaty,
69 Villiger (n 16) 812 [15]
70 LaGrand Case (Germany v United States of America) ICJ Reports 2001 501 [99] 71
Avena and other Mexican Nationals (Mexico v United States of America) ICJ Reports 2004 48 [83]
72 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) ICJ Reports 2007 60 [160]
73 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports 2004 174 [94]
74 Article 32 VCLT (n 5) 75 Villiger (n 16) 845 [6]-[8]
76 Dionne Bosma, ‘The Dutch-Suriname Treaty on Development Assistance: A Correct Appeal to a Fundamental Change of Circumstances?’ [1990] 3 LJIL 205
77
Reports of the International Law Commission to the General Assembly YBILC (1966) 2 258. See also T.O. Elias,
The Modern Law of Treaties (Oceana Publications 1974) 121
78 1957 Draft Article 19 Termination or suspension by operation of law. Case of fundamental breach of the treaty (conditions and limitations of application) YBILC (1957) 2 31
79 It is important to note, that Sir Fitzmaurice expressed views on the qualities of the term ’fundamental’ with respect to treaty breaches, not change of circumstances. Regardless, his observations on the meaning of ’fundamental’ are assumed to be analogous to changed circumstances as well.
11
c) render abortive the purposes of the treaty80. Applying these qualities to changed circumstances, a fundamental change of circumstances occurs when the change a) destroys the value of the treaty for the other party, b) justifies the conclusion that no further confidence can be placed in the execution of the treaty, c) renders abortive the purposes of the treaty.
Further, according to the 1966 Commentary, if treaty stipulations ‘come to place an undue burden on one of the parties as a result of a fundamental change of circumstances’81, or one party is ‘left powerless under the treaty to obtain any legal relief from outmoded and burdensome provisions’82, and if the other party opposes any change, ‘the fact that international law recognized no legal means of terminating or modifying the treaty otherwise than through a further agreement between the same parties might impose a serious strain on the relations between the States concerned; and the
dissatisfied State might ultimately be driven to take action outside the law’83. The above quoted lines serve as a vague guidance, rather than a definition, however it is clear, that the ILC did not intend to give such a restrictive meaning of the word ‘fundamental’ as did the ICJ in the Fisheries Jurisdiction case when the Court interpreted fundamental change as a change that imperils the existence or the vital development of one of the parties. Travaux préparatoires of treaties are separate from the adopted Convention; they have no binding force on the parties. The Vienna Convention is no exception, however, articles 31-32 VCLT84 allow the ICJ to rely on the travaux préparatoires as a subsidiary mean of treaty interpretation when the interpreter is in doubt as to the ‘correct’ meaning of a term (in this case ‘fundamental’). Recourse to the travaux préparatoires is only possible when there is a lack of a clear provision of the meaning of a term85. As the meaning of ‘fundamental’ lacks clarity, the ICJ when applying article 62 could rely on the travaux
préparatoires in finding guidance. The ICJ did so, however it is claimed that had the ICJ been properly considered the relevant content of the travaux préparatoires of the Convention, it could not have arrived to such a restrictive interpretation. The Vienna Convention was drafted by the ILC and also by States, who later became parties to it. The drafting procedure has been a long process of dialogue between the ILC and future state signatories over the content of the Convention. Although the travaux préparatoires have no binding force on the parties to the Convention, it reflects a general consensus and a final understanding between the ILC and future state signatories of the terms, their context, and meaning contained within the Convention.
80
1957 Draft (n 78)
81 Reports of the International Law Commission to the General Assembly (1966) 2 YBILC 258 82 ibid
83 ibid
84 Articles 31-32 VCLT (n 5)
85 Julian Davis Mortenson, ’The travaux of the travaux: is the Vienna Convention Hostile to Drafting History?’ American Journal of International Law (AJIL) (2013) 107(4) 784
12
2.
P
ROBLEMS ARISING FROM THE APPLICATION OF ARTICLE62
2.1 Analysis of the second requirement of article 62 - Fisheries Jurisdiction case: restrictive interpretation of ‘fundamental’ change
In this section it will be claimed that in the Fisheries Jurisdiction case the ICJ in interpreting ‘fundamental change’ contained in article 62 exceeded the intended meaning and set a too high threshold of application.
Iceland in 1971 expressed its claim through a formal notice to extend its exclusive fisheries jurisdiction to a zone of 50 nautical miles around Iceland. The Exchange of Notes 196186 between Iceland and the United Kingdom provided the Court to exercise jurisdiction under article 36(1) ICJ Statute87. The Exchange of Notes contained a definite compromissory clause, which gave a right to refer disputes to the ICJ. The compromissory clause did not contain a provision as to its termination or temporal application88. On 31 August 1971 in its aide-mémoire the Government of Iceland formed an opinion according to which the object and purpose of the compromissory clause had been fulfilled. Iceland relied on the aide-mémoire as a notice given to the United Kingdom on unilateral termination of the compromissory clause. In the same mémoire Iceland notified the United Kingdom that it intended to extend its fisheries jurisdiction to 50 nautical miles, contrary to the 12 nautical miles agreed in 1961. The Icelandic Parliament, the Althing adopted a resolution on 15 February 1972 which claimed: ‘owing to changed circumstances the Notes concerning fishery limits exchanged in 1961 are no longer applicable’89. In a letter to the Registrar of the Court, changed circumstances are also referred to, in the context of exploitation of fishery resources90.
The claim of extending the fisheries jurisdiction to 50 nautical miles conflicted with the interests of the United Kingdom that initiated proceedings against Iceland before the ICJ on 14 April 1972. Iceland denied that the Court had jurisdiction and substantiated its claim by relying on the unilateral termination of the compromissory clause. Iceland did not take part in the proceedings; however communication through letters existed between the Court and Iceland. The Court by virtue of article 53 ICJ Statute91 examined proprio motu whether it had jurisdiction to consider the application by the United Kingdom. The Court found that the claim that the compromissory clause lapsed or terminable could not be accepted and that it could exercise jurisdiction.
86 Exchange of Notes Setting the Fisheries Dispute between the Government of the United Kingdom of Great Britain and the Government of Iceland, UKTS 17 (1961) <http://treaties.fco.gov.uk/docs/pdf/1961/TS0017.pdf> accessed 14 May 2015
87
Article 36, ICJ Statute (n 8)
88 Exchange of Notes Setting the Fisheries Dispute between the Government of the United Kingdom of Great Britain and the Government of Iceland, UKTS 17 (1961) <http://treaties.fco.gov.uk/docs/pdf/1961/TS0017.pdf> accessed 14 May 2015
89 Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, ICJ Reports 1973 3 [35] 90 ibid
13
Through communications submitted to the Court, Iceland relied on changed circumstances resulting from the increasing exploitation of fish stocks surrounding Iceland. The resolution by the Althing extending fisheries jurisdiction to 50 nautical miles also emphasized the changed circumstances92. The Prime Minister of Iceland claimed that the change of circumstances were twofold: first, changes in the fishing techniques and second, changes regarding ‘legal opinion on fisheries jurisdiction’. The Court inferred, that the substance of the Icelandic claim was a fundamental change of circumstances claim, as codified in article 6293. The Court found, ‘fundamental change’ is one of the basic requirements of article 6294. Iceland claimed that the increased exploitation of fisheries and the danger of further exploitation as a consequence of technical development resulting in increased fishing capacity endangered the vital interests of the people of Iceland95. The same language is used in the Althing Resolution: ‘because of the vital interests of the nation and owing to changed circumstances the Notes concerning fishery limits exchanged in 1961 are no longer
applicable’96. Although the Court noted that such a claim relates to the merits of the case97, it nevertheless gave a pronunciation on the threshold of application of fundamental change. The Court relied on the traditional view98 and applied fundamental change as: ‘changes of circumstances which must be regarded as fundamental or vital are those which imperil the existence or vital development of one of the parties’99. The Court did not consider any of the alternative applications provided by the ILC and jurists (see section 1.5). At the case at hand, the Court recognized that the Exchange of Notes explicitly recognized the ‘exceptional dependence’ of Icelandic people on coastal fisheries, and had found that account ‘must be taken of the need for the conservation of fish stocks’100. However, the Court did not decide on the issue as it was only concerned with the
jurisdictional stage101. The Court stressed two requirements were crucial: the ‘fundamental’ nature of the change and the extent of obligations still to be performed under the treaty102. Finally the Court enumerated all the rest of the cumulative requirements of article 62 and held that even if there may be fundamental change, it does not affect the compromissory clause103. The Court did not dwell upon the fundamental change of circumstances argument in the merits phase of the dispute.
92 (n 89) 93 ibid [36] 94 ibid [37] 95 ibid [37] 96 ibid 97 ibid [40] 98 Dörr, Schmalenbach (n 29) 1084 [47]
99 Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, ICJ Reports 1973 3 [38] 100
ibid [41] 101 ibid [42] 102 ibid 103 ibid [43]
14
In a strong dissenting opinion to the order of the Court104 as well as the judgement105, Judge Luis Padilla Nervo expressed his disagreement to the approach of the Court. Both dissents contain the same substantive arguments. Judge Nervo criticized the judgement for not taking into proper consideration the exceptional characteristics and special features of the case106. He agreed with the reasoning of Iceland that the Exchange of Notes had achieved its object and purpose and was therefore terminated. In his view, the law concerning fisheries jurisdiction has undergone
fundamental change and new customary rules on the issue have emerged107. This claim was also put forward in the Althing Resolution. He took note of the fact that more and more states claimed to extend their jurisdiction over their continental shelf based on article 2 Geneva Convention on the Law of the Sea108, which in his views was sufficient to trigger the application of fundamental change109. He claimed that Iceland had a ‘continuous and permanent interest’ in extending its jurisdiction over the continental shelf, which touches upon the sovereignty of Iceland. He expressed five changes that may give ground to a fundamental change of circumstances argument: first, a universal understanding that any coastal nation has the right to extend its jurisdiction to 12 miles110, second, great changes in political, social, economic and technical fields111, third, emerging claims of sovereign rights over natural resources, fourth, a need and will to liquidate unjust privileges obtained through superior strength, and fifth, international regional conferences and declarations that advance progressive development of the law of the sea112. The first point renders the 1961 Exchange of Notes meaningless, as the recognized 12 mile jurisdiction is not a privilege, but has become a universally accepted default rule. The third point is in line with the activism within the United Nations General Assembly to foster a new international economic order113. Although the doctrine of permanent sovereignty over national resources remained underdeveloped, at the time of judgement it could have been considered by the Court as a serious element of the change. The fourth point was raised by Iceland when it claimed that the Exchange of Notes was negotiated in the presence of the British Royal Navy114. As for the fifth point, the law of the sea and the
understanding of jurisdiction have clearly undergone a substantial change between 1961 and 1972.
104
Dissenting Opinion of Judge Luis Padilla Nervo, Fisheries Jurisdiction (United Kingdom v. Iceland), Order of the Court ICJ Reports 1973 20
105 Dissenting Opinion of Judge Luis Padilla Nervo, Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court ICJ Reports 1973 37
106 ibid 107 ibid 42
108 Article 2, 1958 Geneva Conventions on the Law of the Sea (adopted 29 April 1958, entered into force 10 September 1964) A/CONF.13/L.58, 1958, UNCLOS, Official Records vol. 2, 146
109
Dissenting Opinion of Judge Luis Padilla Nervo, (n 105) 44 110
ibid 42 111 ibid 44 112 ibid 45 113
Declaration on the Establishment of a New International Economic Order 1974, A/RES/S-6/3201 <http://www.un-documents.net/s6r3201.htm> accessed 10 July 2015
114 Dissenting Opinion of Judge Luis Padilla Nervo, Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of the Court ICJ Reports 1973 37
15 2.2 Vital Interests
Judge Nervo emphasized the vital interests of Iceland in extending its jurisdiction115. He pointed to the fact that coastal fisheries have always been the foundation of Iceland’s economy. He found those fisheries a condition sine qua non for the economy, and generally that the livelihood of the nation depends on the preservation of spawning areas and nursery grounds116. He concluded that vital interests of Icelandic people were at stake and those interests must have been protected. Iceland in its aide-mémoire also claimed that the continuous fishing and overfishing of the
territories by the UK ‘in the light of intervening scientific and economic evolution’117 is excessively onerous and harmful for sea resources118. Judge Nervo concluded that the Order does not strike a fair balance between the two sides and is contrary to article 41 ICJ Statute119. The only conclusion as to vital interests that can be drawn is that the ICJ was not unanimous in finding that extending the fisheries jurisdiction was not a vital interest of a nation, whose livelihood depends on fish stocks. Unfortunately no test or analysis was put forward by the Court, so nothing more than a general reluctance of accepting a vital interest claim can be inferred.
Unfortunately the Court has not given its view on what amounts to vital interests. Vital interests follow from the sovereignty of states: it was used to ‘preserve the dominant interests of states to act freely without being bound by international obligations’120. Among recognized vital interests of states are: self-preservation, self-defense, the use of reprisals, the termination and suspension of treaties, and the right to declare reservations121. Although theorists have tried to define vital interests, state practice shows that states have different opinion as to their respective vital
interests122. It must be noted that problems as to the acceptance or rejection of vital interests may easily arise in view of the self-judging character of the claim123.
2.3 Terminological difference regarding the nature of ‘change’
Further inconsistency surrounds fundamental change: not only its substance is vague and
ambiguous, but terminology used to describe ‘change’ is differing as well. De Vattel124 and later Oppenheim used ‘vital change’125. The traditional view as relied on by the ICJ in the Fisheries
115
Dissenting Opinion of Judge Luis Padilla Nervo (n 105) [39]-[40] 116
Dissenting Opinion of Judge Luis Padilla Nervo (n 104) 23
117 Government of Iceland’s aide-mémoire of 31 August 1971, Annex C to United Kingdom Application 118 Dissenting Opinion of Judge Luis Padilla Nervo (n 104) 24
119 ibid 27 120
Karl Joseph Partsch ‘Vital Interests’ in Encyclopedia of Public International Law (North-Holland 2000) 1320 121 ibid
122
ibid 1321 123 ibid 1321
124 A/CN.4/SR.694 Summary record of the 694th meeting Extract from the YBILC (1963) 1 136 [8] 125 ibid 137 [13]
16
Jurisdiction case, was defined by Oppenheim as ‘imperil the existence or vital development of one of the parties’. Mr. Tsuruoka126 and Mr. Paredes127, both members of the ILC drafting committee, used the term ‘material change of circumstances’. The Chairman of the 694th-697th Meetings, when fundamental change was considered, Mr. Jiménez de Aréchaga emphasized that the change itself ‘must be of an essential or fundamental nature’128. Mr. Rosenne as well used the phrase ‘essential change’ of circumstances129. Unfortunately, members of the drafting committee did not elaborate on the substance or meaning they attached to the terminology they used. They all attached great
importance to emphasize that the change must have a certain quality (vital, material, essential, or fundamental), it cannot be any change. However, no guidance was given, if these qualities mean the same thing, or they each have a different threshold of application? As different terminology was used to describe the same application of article 62 and there was no debate in the ILC over
terminology, prima facie it seems they mean the same thing. However it is clear from the drafting history of article 60 VCLT, that Special Rapporteur Fitzmaurice changed ‘fundamental breach’ to ‘material breach’ as in his explanation they have different thresholds of application, ‘fundamental’ having a higher threshold. In the adopted version of the Vienna Convention, article 62 contains the word ‘fundamental’. As States did not opt for vital, essential, or material change, it reflects that the Vienna Convention in many respects was a compromise130. The most striking issues remain that no proper definition of ‘fundamental’ was given by the ILC and the substance and meaning of the above mentioned qualities were not presented.
2.4 Application of article 62 contravenes the intention of the drafters
This section claims that the interpretation of article 62 taken by the ICJ contradicts the intention of the drafters (State signatories through the ILC). It has been shown that draft versions of article 62 were intensively debated among members of the ILC over the correct application of the rebus doctrine (see sections 1.3, 1.5, 2.3). Stability of treaty relations is a cornerstone of not only treaty law, but of international relations as well. The principle pacta sunt servanda is codified in article 26 VCLT as ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’131 In a globalizing world predictability is unquestionably necessary in all social, economic, and political issues in order to maintain relations with other States and International Organizations.
126 ibid 138 [18]
127 A/CN.4/SR.697 Summary record of the 697th meeting Extract from the YBILC (1963) 1 146 [38] 128
A/CN.4/SR.695 Summary record of the 695th meeting Extract from the YBILC (1963) 1 149 [67] 129 A/CN.4/SR.696 Summary record of the 696th meeting Extract from the YBILC (1963) 1 151 [14] 130 Villiger (n 16) 1432
