MODULE 3 iv.
Effect of the change is radically to
The Law of Treaties
TERMINATION AND WITHDRAWAL
1. NOTE: A state may only denounce or withdraw from
a treaty where the parties intended to permit such a
possibility OR where the right may be implied by the
nature of the treaty. (Article 56)
a. Such party must give at least 12 months’
notice of its intention to denounce or
withdraw from the treaty
2. A treaty may come to an end and terminate if:
a. Its purpose has been fulfilled
b. It is clear that it is limited in time and that
time has passed
c. In accordance with a provision in the
treaty or by consent of all parties (Articles
54 and 57)
d. A state may also be entitled to terminate a
bilateral treaty if there is material breach of
its obligations under the treaty (Article 60)
i. MATERIAL BREACH (Article 60[3])
consists of:
1. Repudiation of the treaty not
permitted by the VCLT OR
2. Violation of a provision that
is essential to
accomplishing the object
and purpose of the treaty.
ii. MATERIAL BREACH OF A terminated when Hungary sent a Note Verbale
MULTILATERAL TREATY (Article
60[2]): other parties may
unanimously decide to suspend the
operation of the treaty in whole or in
part or to terminate it either in
relations between themselves and
the defaulting state or as between
all the parties.
e. Supervening Impossibility of
Performance Due to the ‘permanent
disappearance or destruction of an object
indispensable for the execution of the
treaty’, it becomes impossible for a state to
perform the treaty-based obligation. Only a
permanent impossibility will be relevant
(Article 61)
i. Ex. Submergence of an island,
drying up of a river, destruction of a
dam
f. Rebus Sic Stantibus or a fundamental
change of circumstances. (Article 62) MAY
ONLY BE INVOKED IF:
i. There is an objective change of
circumstance
ii. Change was unforeseeable at the
time the treaty was concluded AND
iii. Existence of the now changed
circumstances ‘constituted an
essential basis of the consent of
the parties to be bound by the
treaty AND
transform the extent of the
obligations still to be performed
Hungary vs Slovakia
1. A treaty (1977 Treaty) was entered between
Hungary and Czechoslovakia regarding the
construction and operation of the Gabcikovo-
Nagymaros System of Locks on the shared
Bratislava-Budapest section of the Danube river.
2. This was aimed at the production of hydroelectricity,
improvement of navigation of the Danube, and
protection of the areas along the banks against
flooding.
3. The contracting parties undertook to ensure that the
quality of water in the Danube was not impaired as a
result of the project, and that compliance with the
protection of nature in connection with the
construction and operations would be observed.
4. As a result of intense criticism from its people,
Hungary declared the suspension of the project.
5. This suspension was repeatedly extended until the
final abandonment of the project in Nagymaros site.
6. Czechoslovakia then started investigating alternative
solutions. One of them is "Variant C", which is a
unilateral diversion of the Danube by
Czechoslovakia on its territory 10km upstream of the
Dunakilit site.
7. Talks between Hungary and Czechoslovakia
terminating the 1977 Treaty.
8. Following the receipt of the Note Verbale,
Czechoslovakia began work to enable the Danube to
be closed and proceeded to the damming of the
river.
9. Hungary argues that it is entitled to terminate the
1977 Treaty on the ground Czechoslovakia’s
construction and putting into operation of
Variant C amounted to a material breach.
10. No material breach.
11. May 1922: Hungary sent a termination letter for the
preparatory works to divert the water.
Czechoslovakia began construction and laying the
foundation but it has not diverted the waters yet. The
mere act of constructing the foundation and
structures of the project does not constitute material
breach.
12. Czechoslovakia only violated the treaty when it
diverted the waters of the Danube in October 1992,
upon the completion of the project.
13. When Hungary notified Czechoslovakia of the
termination of the 1977 Treaty in May 1922, there
was as yet no material breach.
14. Hungary argued that there was rebus sic
stantibus: fundamental changes in
environmental law and political law.
15. On the element of objective change – the project
would harm the environment after so many
international laws made to protect the environment
(Rio Summit, Rio Declaration).
16. Furthermore, the change in political status of
Czechoslovakia as Czech Republic/Slovak Republic.
17. YES there is an objective change.
18. On the element of it being unforeseeable – that if
they continue with the project, it will be harming the
environment, affecting the water quality and marine
life of the Danube.
19. ICJ said that change is actually not unforeseeable,
as both countries have foreseen that changes.
Evidence to this is the provisions of the treaty that
provide for the obligation to negotiate in order to
mitigate, minimize and address the environmental
hazards that the project may bring.
20. REBUS SIC STANTIBUS NOT MET.
21. As it failed to meet an element, Hungary’s contention
fails. The changes it was invoking were actually
foreseeable and
22. Essential basis was not met.
elements:
1. objective change—change should affect the factual
circumstances surrounding the treaty rather than the
parties’ attitudes towards the treaty
essential basis—change must relate to a fact which
proved to be a decisive factor prompting the party to
enter into the treaty
unforseeability—change should be one that the
parties to a treaty could not have been able to
anticipate with reasonable foresight
radical transformation—change must render the
performance of something essentially different from
that originally undertaken
sommation-notification requirement
India vs Pakistan
1. India and Pakistan have 2 existing treaties relating to
aviation: Convention on International Civil Aviation
AND International Air Service Transit Agreement.
2. India suspended overflights over Indian territory by
Pakistan civil aircraft on February 4, 1971, because
of a hijacking incident involving the diversion of an
Indian aircraft to Pakistan.
3. After this cessation, both states adopted the
Tashkent Declaration which they agreed that there is
an immediate resumption of overflights across each
other’s’ territory on the same basis as that prior to
the hostilities.
4. Pakistan thought that it would mean the resumption
of the overflights on the basis of the 2 treaties.
5. India understood that as the 2 treaties were
suspended, the overflights shall only resume on the
basis of a “special regime”, that flights are allowed
only upon permission. That such “special regime”
has replaced the treaties.
6. Pakistan took the view that this action was in breach
of the Treaties and complained to the Council of the
International Civil Aviation Organization (ICAO).
7. Pakistan contends that ICAO has jurisdiction on the
basis of Art 84 of the Convention and Art 2 of the
Transit Agreement.
a. That if there is a disagreement on the
interpretation, it shall be decided by the
Council and appeal will be to the PCIJ.
8. India filed an appeal on the decision of ICAO to ICJ.
9. Pakistan objected to the jurisdiction of ICJ, claiming
that only questions relating to the interpretation and
application can be decided by the Council and on
Appeal. Also, as the treaties are no longer in force,
ICJ has no jurisdiction.
10. India objected to the jurisdiction of ICAO, claiming
that the treaties are terminated so ICAO has no
jurisdiction. Also, as the special regime governs, the
council has no jurisdiction.
11. ICJ has jurisdiction. It would be absurd if just
because it is unilaterally suspended by one state,
the courts will lose its jurisdiction. Because
otherwise, how will you question the validity of such
suspension? ALSO, questions of jurisdiction come
under “questions of interpretation and application”.
Therefore, within the jurisdiction of the court.
12. ICAO has jurisdiction. India, in suspending
overflights was acting outside the Treaties in doing
such. It was on the basis of the general principle of
international law – that if one party breaches an
obligation, the other party may also do the same.
Therefore, the Council, whose jurisdiction was
derived from the treaties, and was entitled to deal
only with matters arising under them, must be
competent. ALSO, a “special regime” calls for
interpretation and application of Art 82 and 83 of the
convention, therefore ICAO has jurisdiction.
UK vs Iceland
1. This case is between UK and Iceland concerning the
extent of their fishing zone.
2. In 1961, there was an Exchange of Notes between
UK and Iceland to the effect that as of 1961, each
will have 12 nautical miles from their coastline to
have exclusive fishing jurisdiction.
3. It also provides that if there is a need to extend the
limit of the fishing jurisdiction, such must be
submitted to the determination of ICJ.
4. In the 1990s, Iceland had advancements in their
fishing technique and fishing vessels.
5. As an archipelagic state, Iceland depended on
fishing and it reached the point where it was
imperative to preserve fish stocks from exploitation.
6. So, Iceland claimes that the 12 nautical miles should
be extended because there is an objective change
(technological advancement in fishing), a
fundmanetal change beyond their control, to respond
to the issue of over exploitation.
7. So, Iceland extended their fishing zone unilaterally
from 12 miles to 50 miles.
8. UK objected because they must go to ICJ first, and
Iceland cannot unilaterally extend.
9. Iceland argues that since fundamental change of
circumstsance, the 1960 Exchange of Notes is not
applicable.
10. ICJ reject Iceland’s argument. Iceland must be
bound by the 1961 Exchange of Notes.
11. The change of circumstances alleged by Iceland
cannot be said to have transformed radically the
 extent of the jurisdiction that was imposed in the a. Rights and Obligations: conclude
1961 Exchange of Notes. agreements; immunity from jurisdiction by
a. Objective Change – yes, in fishing national courts
technology 11. Group of Individuals
b. Unforeseeable - yes, in fishing technology a. Peoples – generally recognized to possess
c. Essential basis of consent and radical right to self-determination; right to secede to
transformation – no, the original mother state
undertaking (to submit the case to ICJ) has b. Indigenous Groups – right to full enjoyment
never canged, and did not change despite as a collective/individuals of all human rights
the changes in fishing techniques. The and fundamental freedoms; enjoy or free
obligation remains the same (to submit the from any kind of discrimination
jurisdiction to ICJ). The obligation was not c. Insurgent Groups and National Liberation
radically transformed. Movements – Additional Protocol 1 of 1977
MODULE 4 Geneva Convention (should only target
The Actors in the International Legal System military objects and spare individuals and
1. Subjects of International Law - having a legal cultural sights); right to conclude treaties
personality under international law 12. States are the only actor that can create
2. Legal personality – having rights, powers and/or international law. All other actors derive their rights
obligations; having legal capacity in the creation of and obligations from States.
rights and/or obligations 13. Requirements for Statehood (Montevideo Criteria)
3. Active vs Passive legal personality – subject of a. Permanent Population
regulation (“regulating”) /object of regulation b. Defined Territory
(“regulated”) c. Government
4. Actors in the International Legal System d. Sovereignty
a. States e. Statehood is important as only states can
b. International Organizations create international law
c. Individuals 14. Issue of Recognition:
d. Group of Individuals a. Declaratory View – creation of states is a
e. Territories Other than States matter of law and fulfillment of a legal criteria
5. Principle Features of International Legal (mainly, effectiveness)
Personality b. Constitutive View – recognition of other
a. Capacity to bring claims with respect to states is a precondition for statehood (not
breaches of international law favored and has many pitfalls; fulfillment of
b. Capacity to conclude treaties Montevideo criteria is enough)
c. Enjoyment of privileges and immunities from State Government
the exercise of national jurisdiction Legal entity under Representative of the
6. Non-State Actors derive their legal personality from international law state that is entitled to act
States. Therefore, States can limit rights and on the State’s behalf
obligations possessed by NSA. Actual effects of lack of A decision not to
7. Rights and obligations depend upon the needs of the recognition of a state are recognize a government
community, as determined by the State. of greater legal that claims to represent a
8. Individuals – possess rights and obligations importance than those territorial entity is not the
bestowed upon them by the State (by virtue of relating to lack of same as denying that the
treaties, international agreements) recognition of a entity in question qualifies
a. Rights: human rights law, trade law, laws of government for statehood
armed conflict 15. Acquisition of New Territory
b. Obligation: international criminal law (ex. a. Cession – purchase of territory from
war crimes, genocide, crime of aggression, another State; acquiring state must respect
crime against humanity) potential rights of third states
9. BEFORE GOING TO INTERNATIONAL COURT, an b. Accretion – wherein a new land is gradually
individual must: created naturally (in IL, can pertain to all and
a. Exhaust Domestic Remedies any body of water that can actually form new
b. Principle of Subsidiarity (principle in IL) - lands or form new island); MUST BE
what individuals can accomplish by their RESULT OF NATURAL FORCES; accepted
own initiative and efforts should not be taken as new territory if it does not infringe upon
from them by a higher authority the rights of other states/states have given
10. International Organizations – DEFINITION: their consent
established by a treaty or other instrument governed c. Occupation – terra nullius; obtaining title to
by international law; possessing its own international territory that has never been subject of any
legal personality State; acquired when the state
demonstrates that it exercises effective
 control over the territory and that it has the
intention of obtaining title
d. Prescription – obtaining title to territory
previously under the sovereignty of another
state; through implied consent on the part of
the State whose rights are being displaced
by the acquiring State
16. Right to Self-Determination – all people have the
right to freely determine their political status and
pursue their economic, social, and cultural
development
a. Internal Self-Determination: Autonomy –
within the framework of an existing state
b. External Self-Determination: Secession –
arises in the most extreme cases
c. External Self Determination
i. Colonial Peoples – people governed
as part of a colonial empire
ii. Alien subjugation – people subject
to alien subjugation, domination,
exploitation
iii. No meaningful autonomy – people
denied any meaningful exercise of
its right to self-determination within
the state
17. Illegality in the Creation of a State – potentially
emerging state was created in flagrant violation of
basic norms of international law
a. Bangladesh – India invaded Pakistan
b. Turkish Republic of Northern Cyprus –
Turkey invaded and attacked Cyprus
c. Kosovo – NATO launched aerial strikes
against Yugoslavia
18. When Statehood can be denied:
a. Ex Injuria Jus Non Oritur – statehood to
have been denied to entities that would
otherwise seem to fulfill the formal criteria on
the basis of the principle that legal rights
cannot arise from wrongful conduct
b. Its creation violates the local
population’s right of self-determination
c. Territorial entity created through the
unlawful use of force
19. State Succession – replacement of one state by
another in the responsibility for the international
relations of territory
a. Tabula Rasa Approach – population of the
succeeding territory ceases to be protected
by human rights conventions until the
emerging state decides to become a party
i. XPN: territorial treaties; boundary
treaties
ii. UTI POSSIDETIS JURIS – continuous and peaceful display of sovereignty.
geographical boundaries created by
treaties remain in force regardless
of whether or not the boundaries
coincide with ethnic, tribal, religious
or political affiliations
b. Continuity Approach - protection continues
notwithstanding change in government of
the State party, including dismemberment in
more than one State or State succession
20. Extinction – state may cease to exist if it
disintegrates and subsequently splits into a range of
new states; it may alter its legal status after its own
free will and dissolve itself
Island of Palmas (Netherlands vs US)
Regardless of whether a claim to title is based in
occupation or prescription, it must rest on the effective
possession of the territory.
1. On January 23, 1925, US and Netherlands referred
their dispute concerning sovereignty over the Island
of Palmas to arbitration by a sole arbitrator, Max
Huber, who was asked to determine whether the
Island of Palmas in its entirety formed a part of the
territory belonging to US or Netherlands
2. US argues that the discovery was based on the
Treaty of Munster, wherein Netherlands and Spain
are part of.
3. She hinges her title on cession, as successor to the
rights of Spain over the Philippines and in the first
place of discovery. Spain’s inchoate title is derived
from its discovery of Palmas in the 16th century.
4. When Spain ceded the Philippines to the US under
the Treaty of Paris, the Island of Palmas was
included and therein remained intact under the
Treaty.
5. By principle of contiguity, it belongs to the power
having sovereignty over the Philippines.
6. Netherlands maintains that Spain’s discovery is not
proved. Even if Spain had a title, such had been lost.
7. They contend to have exercised their right of
sovereignty since 1648.
8. Netherlands, through the East India Company, have
possessed and exercised the rights of sovereignty
out of conventions entered into with the natives and
princes of the island, establishing the suzerainty (in
which one state controls the foreign policy and
relations of a tributary state, while allowing the
tributary state to have internal autonomy) of the
Netherlands over the territories of these princes,
including Palmas.
9. Max Huber ruled in favor of the Netherlands.
10. ON DISCOVERY CONFERRING SOVEREIGNTY:
Discovery alone without any subsequent act cannot
suffice to prove sovereignty over Palmas. As there is
no sovereignty, abandonment by one State that
another may take place does not arise.
11. DISCOVERY CREATING AN INCHOATE RIGHT:
The prevailing view in the 19th century was, an
inchoate title must be completed within a reasonable
period by the effective occupation of the region
claimed to be discovered. A title that is inchoate
cannot prevail over a definite title found on the
12. ON THE PRINCIPLE OF CONTIGUITY: It cannot be
admissible as a legal method of deciding territorial
sovereignty for it will lead to arbitrary results. It is
impossible to show the existence of a rule of positive
international law to the effect that islands situated
outside territorial waters should belong to a State
from the mere fact that its territory forms the terra
firma (nearest continent or island).
13. ACT OF EFFECTIVE APPREHENSION: If the claim
of sovereignty is based on the continuous and
peaceful display of authority—the acts of East India
Company must be assimilated as acts of
Netherlands itself. It gave the Dutch East Asia
Company, although not recognized as members of
the community of nations, with public powers for
acquisition and administration of colonies. Existence
of Dutch rule is proved by the fact that the Dutch flag
was being waved by the people of the island, the
company also exercised rights of suzerainty over
Palmas, the natives sent yearly presents as token of
their submission, and were obliged to give
assistance in case of distress.
14. Thus, Netherlands succeeded in establishing its
claim to sovereignty on the title of peaceful and
continuous display of State authority. It is so
open and public that is to say that it was in
conformity with usages as to exercise of
sovereignty over colonial States.
15. ACT OF EFFECTIVE APPREHENSION: By the time
a dispute had arisen, in 1906, the arbitrator found
that the establishment of Dutch authority had already
reached such a degree of development that the
importance of maintaining this state of things ought
to be considered as prevailing over an inchoate
claim, possibly based either on discovery in very
distant times and unsupported by occupation or
mere geographical position.
Secession of Quebec
Right to Self-Determination: Not applicable to Quebec,
since they were not under any of the following: a) Under
colonial empire, b) Subject to alien subjugation,
domination, or exploitation, c) Denied meaningful
exercise of its right to internal self-determination.
1. In 1980, Under Parti Quebecois, a referendum was
held regarding Quebec’s separation from Canada. It
resulted in 60% of voters wanting to remain in
Canada.
2. In 1982, the federal government amended the
Constitution to gain full independence from Britain so
that Britain permission will no longer be required to
amend Canadian laws, and constitutional powers.
3. In 1995, the province of Quebec experienced a
movement wherein some Quebecers wished to
unilaterally secede and split from Canada.
4. A 2nd referendum was held. 50.6% of the voters of
Quebec wanted to remain part of Canada.
5. So the federal government submitted 3 reference
questions to the SC requesting an opinion regarding
the legality of Quebec’s separation from Canada.
6. The 3 questions were addressed to the court:
a. Can the National Assembly, legislature or
government of Quebec effect the secession
of Quebec from Canada unilaterally?
i. NO, unconstitutional on the
grounds of democracy,
constitutionalism and the rule of
law, federalism, and protection
for minorities. Due to the
complexity and importance of
these values, Quebec cannot
choose to unilaterally secede
without addressing each principle
and how their separation will
affect each principle.
b. Does international law give the National
Assembly, legislature or government of
Quebec the right to effect the secession of
Quebec from Canada unilaterally? In this
regard, is there a right to self-determination
under international law that would give the
National Assembly of Quebec the right to
effect the secession of Quebec from Canada
unilaterally?
i. NO. International law does not
permit Quebec to unilaterally
separate.
ii. In this case, the SC of Canada
made a distinction between ‘internal’
self-determination and ‘external’
self-determination. It noted that the
right to self-determination of a
people is normally fulfilled by
internal self-determination
(autonomy) wherein people may
pursue their political, economic,
social and cultural development
within the framework of an existing
state. A right to external self-
determination (statehood), on the
other hand, only arises in the most
extreme of cases.
iii. In the case at bar, Quebec did not
meet any of the situations
provided under internal or
external self-determination, which
may justify it to invoke the same.
Quebec does not meet the threshold
of a colonial people or oppressed
people since they were already
declared independent by Britain nor
can it be suggested that Quebecers
have been denied meaningful
access to government to pursue
their political, economic, cultural and
social development. Reason being,
that Quebecers occupy prominent
positions within the government of
Canada. The population of Quebec
is equitably represented in
legislative, executive, and judicial
institutions.
c. In the event of a conflict between domestic
and international law on the right of the
National Assembly, legislature or
government of Quebec to effect the
secession of Quebec from Canada
unilaterally, which would take precedence in
Canada?
i. By reason of the unconstitutionality
of the secession, it cannot be said
that there is a conflict between
international and domestic law.
 Unilateral Declaration of Independence Kosovo 15. During the 18th-20th centuries, there were numerous
1. Kosovo, a region that is populated by Albanian instances of declarations of independence which
Muslims, was once a part of Yugoslavia. sometimes resulted in the creation of a new State. In
2. When it was broken up into various states in the no case, however, does it suggest that the act of
1990s, Kosovo was absorbed by Serbia, a promulgating the declaration was regarded as
predominantly Christian nation. contrary to international law. The international law
3. When Kosovo attempted to become independent in contained no prohibition of declarations of
1999, Serbia sent its armed forces in a campaign of independence. The Court noted that international
ethnic cleansing of Albanian Muslims. law did not preclude Kosovo from issuing a
4. Eventually, the North Atlantic Treaty Organization declaration of independence.
(NATO), an intergovernmental military alliance 16. When compared with the Quebec Secession case,
created to safeguard the freedom and security of the the Kosovo people arguably have the right to
international community, intervened in the war. But external self-determination or statehood based on
thousands of Albanian Muslims already murdered. the abuses that they have suffered at the hands of
5. To put an end to the armed conflict, UN Security the Serbian people.
Council authorized the establishment of an
international civil presence in Kosovo to provide an
interim administration which will oversee the
development of a democratic institution.
6. The United Nations Administration Mission in
Kosovo (UNMIK) exercises all legislative, executive,
and judicial authority. Its principal responsibilities
was the organization and overseeing of provisional
institutions for democratic self-government pending
a political settlement in Kosovo.
7. Later, the Security Council intended to start a
political process to determine Kosovo’s future status.
Negotiations between Serbia and Kosovo began but
were unable to reach an agreement on Kosovo’s
status. Thus, Martti Ahtisaari, the Special Envoy to
the UN Secretary-General, recommended that the
only viable option for Kosovo would be
independence.
8. In February 2008, a newly formed Assembly of
Kosovo declared Kosovo’s independence from
Serbia and the establishment of a sovereign state.
9. The declaration was decided at a meeting where
109 out of 120 members of the Assembly of Kosovo
voted, wherein all members voted to issue the
declaration of Independence.
10. This was not submitted to the Special
Representative of the Secretary General and was
not published in the Official Gazette of the
Provisional Institutions of Self-Government of
Kosovo.
11. Serbia informed the Secretary-General that it had
adopted a decision stating that that declaration
represented a forceful and unilateral secession of a
part of the territory of Serbia, and did not produce
legal effects either in Serbia or in the international
legal order.
12. An emergency public meeting took place in which
the President of Serbia denounced the declaration of
independence as an unlawful act which had been
declared null and void by the National Assembly of
Serbia.
13. Serbia sought to have the court's opinion on whether
this declaration was in breach of international law.
14. The Court ruled that the adoption of the declaration
did not violate any applicable rule of international
law.