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Article 62 of the Vienna Convention Essay

The doctrine of fundamental change of circumstances, (rebus sic stantibus) is a principle of customary international law allowing a part to an agreement to withdraw or terminate it where there has been a fundamental change in circumstances. The main justification for this principle is that treaties often remain in force for many years, during which time fundamental changes may occur in the political or international environment which may require a departure from the provisions set out in the treaty. However, this principle has also been criticized for disrupting the binding force of obligations taken by states, particularly when bearing in mind that there is no compulsory jurisdiction forcing states who terminate a treaty on this ground, to have the legitimacy of their decision scrutinised before an international tribunal.

Nevertheless, this principle has been codified in Article 62 of the VCLT, although its scope has been severely restricted. Article 62 (1) is drafted it negative terms, stating that a fundamental change of circumstances which has occurred since 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.

This is further restricted by Article 62 (2) which states that fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty if the treaty establishes a boundary or 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.

If these conditions are met, Article 62 (3) allows a state to suspend the operation of the treaty if it does not wish to terminate it or withdraw from it.

Therefore, in order for Article 62 to apply, five conditions must be met. First, the change must be of circumstances existing at the time the treaty was made. Second, the change of circumstances must be “fundamental”. Third, the change must not have been foreseen by the parties. Fourth, the existence of those circumstances must have constituted an essential basis of the consent of the parties to be bound by the treaty in the first place. Fifth, the effect of the change must be radically to transform the “extent” of obligations still to be performed under the treaty.

The possibility of terminating a treaty on grounds of fundamental change of circumstances was recognised in the Fisheries Jurisdiction case, but was not held to be applicable on the particular facts of that case. In this case, Iceland and the UK entered into an agreement to limit their fisheries jurisdiction to within their 12 mile continental shelf limit. However, as the law of the sea developed, greater fishing zones became permissible, and Iceland argued that these developments where a fundamental change of circumstances allowing them to withdraw from the treaty. The ICJ held that a change in the law is not sufficient to constitute a fundamental change of circumstance.

A change in international law could however terminate the treaty on grounds of supervening impossibility of performance if the change made the carrying out of the treaty illegal. It was stated that changes in circumstances will only be regarded as fundamental if they “imperil the existence or vital development of one of the parties.” Moreover, it was added that “the change must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that initially undertaken”. As these requirements had not been met, Iceland could not withdraw from the agreement.

Similarly, the scope and application of Article 62 was also examined in the Gabcikovo-Nagymaros Project (Danube Dam) case. Here the ICJ stated that “The changed circumstances advanced by Hungary are, in the Court’s view, not of such a nature…that their effect would radically transform the extent of the obligations still to be performed in order to accomplish the Project. A fundamental change of circumstances must have been unforeseen; the existence of the circumstances at the time of the Treaty’s conclusion must have constituted an essential basis of the consent of the parties to be bound by the Treaty. The negative and conditional wording of Article 62 of the Vienna Convention on the Law of Treaties is a clear indication moreover that the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases”.

This reasoning was followed by the ECJ in the Racke v Hauptzollamt Mainz case. In this case, the ECJ considered whether the EC could suspend the operation of a trade concession agreement between itself and the former Republic of Yugoslavia on the grounds that the break-up of Yugoslavia into several new States were factors to be regarded as a political change, involving a fundamental change in the material circumstances underlying the consent of the contracting parties bound by the agreement. It was held not to be, because the change did not fundamentally alter the extent of the obligations under the agreement, which was essentially an economic agreement to promote the development of trade between the contracting parties.

These cases demonstrate the severe restriction which is place on the scope of Article 62, and that it will require a truly exceptional case for the ICJ to conclude that the requirements of Article 62 have been met.

In relation to the provisions of Article 62, a question has arisen as to whether these provisions could apply to the Anti-Ballistic Missile (ABM) Treaty between the USA and the USSR in 1972, which was concluded in the circumstances of the Cold War. Can it be said that there has been a fundamental change in the circumstances which determined the parties to accept the treaty and which has resulted in a radical transformation in the extent of their obligations still to be performed under the treaty?

In 2001, President Bush announced that he had given formal notice to Russia, that the US is withdrawing from the Treaty. The treaty sought to limit the development and deployment of nationwide ballistic missile defence systems. Explaining the withdrawal, President Bush referred to the terrorist events of September 11 as a fundamental change of circumstances which have resulted in the US now being put in danger from rogue states or terrorists who may have acquired nuclear weapons. Consequently, US wants the freedom to develop effective defenses against missile attacks from such sources, and this can be done only if the restrictions of the ABM Treaty are removed.

A further argument that can be made is that the disintegration of the Soviet Union and the removal of the Cold War threat may also constitute a fundamental change in circumstances allowing the US to withdraw from the treaty. However, the problem here is that despite the end of the Cold War and the disintegration of the Soviet Union, both the US and Russia have continued to regard the treaty as remaining in force between themselves.

The most obvious resolution to this problem would be for Russia to grant its consent to the US to withdraw from the treaty, or for both states to terminate the treaty by mutual agreement, according to Article 54 of the VCLT. However, it is unlikely that Russia will grant its consent for the USA to withdraw from the treaty. Therefore, the question of whether the US can unilaterally withdraw from the treaty arises.

The only provision under the VCLT which may provide the US with the opportunity to unilaterally withdraw from the treaty is fundamental change of circumstances, under Article 62. In order for Article 62 to apply, five conditions must be met.

First, the change must be of circumstances existing at the time the treaty was made. The first condition is clearly met as there certainly has been a change of circumstances from the height of the cold war in 1972 to the present post-cold war era. The Cold War has now subsided, and the Iron Curtain and the Soviet Union no longer exist.

Second, the change of circumstances must be “fundamental”. This change can be said to be fundamental because in 1972, the threat from the Soviet Union was real and vivid, whereas the improvement in relations since then has greatly reduced this threat. This disparity between US and Russian military power can be seen by the fact that the US spends more on its military than the next ten military powers (including Russia) taken together. Furthermore, few countries other than the US and Russia had nuclear weapons in 1972, and the majority that did were allies of the US. Any threat from other countries (let alone terrorists) was mostly a distant threat, not yet a reality.

Third, the change must not have been foreseen by the parties. It is questionable whether the change in circumstances was not foreseen by the parties. It can be argued that the acquisition of nuclear weapons by other countries, some of which are a threat to the US was foreseeable. However, the threat from terrorists who may have now acquired nuclear weapons cannot reasonably be said to have been foreseeable.

Fourth, the existence of those circumstances must have constituted an essential basis of the consent of the parties to be bound by the treaty in the first place. It can be said that the circumstances which constituted an essential basis of the US’s consent have changed, because the Soviet Union no longer exists, and Russia is no longer the threat it used to be. The only reason why the US signed the treaty was because of the threat from Russia, if there was no threat, it would not have consented.

Furthermore, the persisting ideology of the two states at the time the treaty was signed was world supremacy, and so both states sought to limit the military and nuclear aspirations of the other by consenting to this treaty. It would now seem that the original nuclear arms race which instigated the treaty is over, since neither the US nor Russia are seeking to increase their arsenal of nuclear weapons, and it is doubted whether Russia would have the financial means to do so even if it wanted to. Therefore, it seems that the object and purpose of the ABM Treaty has ceased to be relevant in today’s world.

On the other hand, it may be argued that despite the developments of the last 30 years, Russia has still not submitted to the emerging realisation that we are living in a US dominated world. It continues to maintain links with rogue governments and has nuclear parity with the US. Therefore, although it is less of a threat than it used to be, it is still nevertheless a threat. Consequently, the counter-argument may be that the original threat which instigated the US to sign the ABM Treaty still exists, albeit in a weaker form. Therefore, it is a matter of debate whether the existence of the circumstances which initially formed the basis of the US’s consent have been fundamentally changed.

Fifth, the effect of the change must be radically to transform the “extent” of obligations still to be performed under the treaty. This is the most difficult condition to satisfy and it is questionable whether it has been satisfied. It must be remembered that both the US and Russia have continued to regard the treaty as remaining in force between themselves, and the treaty has continued to carry out its purpose, i.e. the restriction of nuclear weapons. However, the justification given by the US is that the Treaty enshrines the past and should not prevent it from addressing the threats of today, or to pursue technology to defend itself.

This argument may have some support from the statements made in the Fisheries Jurisdiction case, where it was stated that changes in circumstances will only be regarded as fundamental if they “imperil the existence or vital development of one of the parties.” Moreover, it was added that “the change must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially different from that initially undertaken”. It can be argued that preventing the US from developing technology to protect itself from the threat from rogue nations and terrorists may indeed “imperil its existence or vital development”.

Moreover, as Professor Mullerson points out, the purpose of the ABM Treaty and the extent of its obligations were not to prohibit national missile defence systems in abstract against all possible threats, but to prohibit such defence from the other party to the Treaty. Therefore, by preventing the US from defending itself from new nuclear threats, it can be said that the fundamental change has now altered the extent of the obligations of the US. This is because its obligations will have been transformed from an obligation not to defend itself against Soviet missile threats, to an obligation not to defend itself from missile threats from rogue states or terrorists.

Therefore, the fundamental change of circumstance provision in Article 62, when combined with the provision in Article XV of the ABM treaty itself which allows a state to withdraw where extraordinary events arise, and where its supreme interests are threatened, may give the US a legitimate basis for unilaterally withdrawing from the treaty. As Professor Mullerson points out, “it is clear that US-Soviet (Russian) legal relations cannot, by definition, remain the same as they were at the height of the military-strategic competition which was the axis of world politics”. On the other hand, it may be argued that despite the developments of the last 30 years, although Russia is less of a threat than it used to be, it is still nevertheless a threat. Consequently, the counter-argument may be that the original threat which instigated the US to sign the ABM Treaty still exists, albeit in a weaker form.

An alternative solution to the situation is advanced by Professor Mullerson, who states that the doctrine of change of fundamental circumstances should be used not only as a method of upholding or terminating treaties, but it should be used more flexibly as a process for initiating renegotiation or modification of a treaty whose object and purpose no longer correspond to the needs of changed circumstances.

Despite the arguments either way, if Russia ultimately acquiesces in the US justification for withdrawing from the ABM Treaty, it is possible that the reasons given by the US may be regarded as supplying a precedent for withdrawal by the United States or other countries from other arms control treaties on similar grounds.

As we have seen from the above discussion, although Article 62 lays down the general criteria which may allow a state to terminate a treaty on grounds of fundamental change of circumstances, the scope and application of Article 62 remains very problematic. The fact that there is no compulsory jurisdiction forcing states who terminate a treaty on this ground, to have the legitimacy of their decision scrutinised before an international tribunal further adds to these problems.

In the few cases where Article 62 has been ar5gued before the ICJ, we have seen that a very strict approach has been adopted and that no state has ever successfully pleaded Article 62 before the ICJ. This may discourage states from testing the legitimacy of their decision to terminate a treaty on the basis of Article 62 before the ICJ, as will probably occur in the ABM Treaty debate. Perhaps an alternative solution would be to not only use Article 62 as a method of upholding or terminating treaties; but more flexibly as a process for initiating renegotiation or modification of a treaty whose object and purpose no longer correspond to the needs of changed circumstances.


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