Page 169 - Law of Peace, Volume ,

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Section V. TERMINATION AND MODIFICATION OF INTERNATIONAL AGREEMENTS
8-31. Denunciatioo of or Withdrawal From a Treaty. a. further performance of its obligations under the treaty. 135
General. The Vienna Convention states that a treaty may b. The term "material breach" is defined as a repudia-
be terminated, a party may withdraw from it, or its opera- tion of the treaty not sanctioned by the Convention or the
tion in regard to a party may be suspended if this is Pro- violation of a provision essential to the accomplishment of
vided for in the treaty or if all the parties consent to those th, object or purpose of the treaty. Because of concern
terms. 131 Unless it SO provides, a multilateral treaty will that the right of unilateral denunciation due to breach
not be terminated automatically when the mnber of sig- wodd seriously undercut law-making treaties, a paragraph
natories to it falls below the number necessary for its entry added to Article 60 which provides that material
into force. 132 Parties to a multilateral treaty may agree to breach by a party does not permit termination or suspen-
suspend its operation, temporarily and as between them- sion of provisions ". . . of an agreement relating to the
selves alone, if provided for by the treaty or if suspension protection of the human person contained in treaties of a
not prohibited by the treaty and does not affect the humanitarian character, in particular to provisions
rights or obligations of other parties. However, a SusPen- prohibiting any form of reprisals against persons protected
sion of an agreement's operation must be compatible with
by such treaties." 136
its object and purpose. 133
Article 61 permits a party to terminate or withdraw
b. Despite the doctrine of pacta sunt servanda, under
from a treaty on the ground of impossibility of perform-
customary international law, states have been permitted
ance ". . .if the impossibility results from the permanent
to withdraw from certain types of treaties which contain
disappearance or destruction of an object indispensable for
no express provision regarding termination. Treaties of
the execution of the treaty." However, if the impossibility
political alliance and commercial arrangements are
is temporary, it justifies only suspension of the operation
generay regarded as agreements of fype'
of the treaty. If the impossibility is the of a
56 of the Convention states that a treaty own breach of an obligation under the treaty or any other
provision regarding termination is not subject to denun-
ciation or withdrawal unless: international obligation owed to another party to the
agreement, the party may not invoke it as grounds for ter-
(1) It is established that the parties intended to admit
the possibility of denunciation or withdrawal; or mination, withdrawal, or
(2) A right of denunciation or withdrawal may be 8-33. Fundamental Change of Circumstance. a. Rebus
implied by the nature of the treaty. sic stantibus. The doctrine of rebus sic stantibus (change of
A party must give not less than twelve months' notice of circumstances) fell into disrepute as a result of indiscrimi-
itsintent to denbun= or withdraw under these conditions. nate invocation by states prior to 1914 in order to escape
from inconvenient treaty obligations. 137 Article 62 of the
8-32. Termination or Suspension of Treaty Due to
Vienna Convention states the doctrine in negative terms,
Breach or Impossibility of Performance. a. Article 60 of
the Convention provides that: holding that a fundamental change in circumstances not
foreseen by the parties may not be invoked to terminate or
". . . [a] material breach of a bilateral treaty by one of the parties entitles
the other to invoke the breach as a ground for terminating the treaty or withdraw from a treaty
suspending its operation in whole or in part." (1) The existence of those circumstances constituted
A material breach of a multilateral treaty by one of the an essential basis ofthe consent of the parties to be bound
parties permits: by the treaty; and
(1) The other parties by unanimous agreement to (2) The effect of the change is radically to transform
suspend the operation of the treaty in whole or in part or the extent of obligations still to be performed under the
to terminate it either as between themselves and the treaty.
defaulting state or between all the parties; b. Even if the exceptions stated in the above paragraph
(2) A Party specially affected by the breach to invoke are met, a fundamental change in circumstances may not
it to suspend the operation of the treaty in whole or in Part be invoked for terminating or withdrawing from a treaty if
as between itself and the defaulting state; the agreement establishes a boundary or if the change is
(3) Any party other than the defaulting state to in- the result of a breach by the party invoking it either of an
voke the breach to suspend the operation of the treaty in obligation under the treaty or of any international obliga-
whole or in part with respect to itself if the treaty is of such tion owed to any other party to the agreement. 138
a character that a material breach by one party radically
changes the position of every party with respect to the 135. Viema Convention, ~rt.60(2).
136. Id. at Art. 60(5). Agreements of this nature would include the
131. Vienna Convention, Arts. 54 and 57. Hague Regulations and Geneva Conventions Regulating Armed Con-
132. Id. at Art. 55. tlict.
133. Id. at Art. 59. 137. Sinchir, supra, note 66 at 106.
134. G.l?Qmaurice, Second Report on the Law of Treaties. U.N. 138. For a thorough analysis of this concept, see Friedmann, supra,
Doc.A/CN 4/107 (IS March 1967). note 23 at 413-21.