The Law of Treaties

References
• Chapter 10, DJ Harris, Cases and
Materials on International Law
• Scott Davidson, The Law of Treaties
• Chapter 16, Malcolm N. Shaw, International
Law Fifth Edition
• Chapter 13, Robert M Maclean, Public
International law, 18th Edition
• Vienna Convention on the Law of
Treaties 1969
• http://www.gthr.net/default html
• http://untreaty.un.org/English/guide.pdf
 Course structure
• Introduction
• Scope of VCLT 1969
• Definition of “treaty” and criteria
• The making of treaty
– Formalities
– Reservations
– Entry into force
• Validity and applications
• Interpretation of treaties
• Invalidity, suspension and termination of
treaties
 Introduction
• Treaties are one of the means through which
States deal with each other
• A source of law that the ICJ is bound to apply
under Article 38 (1)(a) of ICJ Statute
• A precise method of regulating relations and
conduct of states
• Knowledge of the law of treaties is essential to
understand how international law works
• Treaties fulfil a broad range of functions and
they cover wide variety of subject matter
• Treaties range from:-
1. Bilateral treaty through which two states
secure reciprocal rights and obligations
2. Multilateral Treaties-comprehensive legal
regime of uncertain durations for particular
facet of international relations
The Vienna Convention on
the Law of Treaties
 The Vienna Convention on the Law of
Treaties
• A coherent body of rules on the law of treaties begin
to evolve starting from the Peace of Westphalia 1648
• The rules include:-
a. The competence of various person to conclude
treaties
b. The nature of the acts which the state is bound
c. The obligation to perform treaties
d. Factors that might vitiate them
• In 1949 the International Law Commission (ILC)
included the law of treaties in its list for codification
• The law of treaties has been codified in the Vienna
Convention on the Law of Treaties (VCLT) in 1969
which came into force on 27 January 1980
• Agreements between other international persons
were not included in VCLT to avoid delay
(incorporated in the 1986 VCLT between states and
IO’s or between IO’s)
• VCLT regulates treaties concluded between states
(Art.1) and in written form(Art.2(1)(a) governed by
the International Law.
• VCLT is applicable unless a particular treaty
provides otherwise; or unless the parties
agree otherwise; or if a different intention
otherwise established (residual rule)
The formalities of a
treaty
 Definition
Art.2 Vienna Convention on the Law of Treaties
1969
“treaty” means an international agreement
between states in written form and governed
by international law, whether embodied in a
single instrument or in two or more related
instrument and whatever its particular
designation
 Written
instrument
It should be
or
intended to
instruments
create legal
between two
obligations
or more
parties
Criteria
Parties must
It must be be endowed
governed by with
international international
law personality
 International Agreement Concluded
Between States in Written Form

• The VCLT does not apply to international

agreements which are not made in writing
• Article 3 of VCLT states that the legal force of
such non-written agreements shall not be
affected
 'Whatever its Particular Designation'
• A treaty may be described in a multitude of ways
(nomenclature) such as convention, protocol,
declaration, covenant, charter, pact and agreement
• There is no exclusive or systematic use of
nomenclature
• The Vienna Convention does not require that a treaty
be in any form
• If there is a dispute concerning the status of a
document as a treaty, an objective test is used
considering its actual term and circumstances in
which it was made
 Qatar v Bahrain
‘The court does not find it necessary to consider
what might have been the intentions of the Foreign
Minister of Bahrain or for that matter those of the
Foreign Minister of Qatar. The two ministers signed a
text recording commitment accepted by their
Governments, some of which were to be given an
immediate application. Having signed such a text the
Foreign Minister of Bahrain is not in the position
subsequently to say that he intended to subscribe
only to a statement recording political understanding
and not to an international agreement'
 Aegean Sea Judgment
‘In the course of their meeting the two Prime
Ministers had an opportunity to give consideration to
the problems which led to the existing situation as
regards relations between their countries. They
decided that those problems should be resolved
peacefully by means of negotiations and as regards the
continental shelf of the Aegean Sea by the International
Court at The Hague. They defined the general lines on
the basis of which the forthcoming meetings of
the representatives of the two Governments would
take place. In that connection they decided to bring
forward the date of the meeting of experts concerning
the question of the continental shelf of the Aegean Sea
and that of the experts on the question of air space’
 Parties Must be Endowed with
International Personality
• Every state possesses capacity to conclude
treaties.
– Article 6 of the VCLT
– The entity must be as state for the purpose
of international law
• Individuals do not have the capacity to make
treaties with states or other international
persons
– Anglo-Iranian Case
 Governed by International law
• The first report of the ILC Special Rapporteur
– The element of subjection to international law
is essential
– There may be agreements between states such as
agreements for acquisition of premises for
diplomatic missions or for some purely
commercial transaction that are regulated by the
local law of one of the parties or private law
system to resolve the conflict
• Denmark entered into several loan agreements with
states between 1966-1968
– 'All rights and obligations shall be governed
by Danish law’
 Soft Law
• Some international acts may assume the form
of international agreements, but they are not
treaties
– There is no intention to create legal obligations
– States may reach an agreement as to
political intent without making it legally
enforceable
– The Final Act of the Helsinki Conference
on Security and Cooperation in Europe
• Not eligible for registration under Article 102
of the UN Charter
• It was understood that the Act would not
have any binding effect in law
 Oil Platforms (Preliminary
Objections)
‘although the treaty is legally binding, a
particular provision in it may be drafted in
terms so general that by itself it is not capable
of generating legal rights and
obligations…….there shall be firm and
ensuring peace and sincere friendship did not
generate legal rights and obligations……….
 Unilateral acts
• Acts and conduct by governments although not
intended to formulate agreements may
nevertheless results in legal effect.
Case: Legal Status of Eastern Greenland Case:
Denmark v Norway (1933)
‘The Court Considers it beyond all dispute that a
reply of this nature given by the Minister of
Foreign Affairs on behalf of his Government in
response to a request by the diplomatic
representative of a foreign Power, in regard to a
question falling within his province, is binding
upon the country to which the Minister belongs’
• In the Nuclear Test Cases, the ICJ held that unilateral
statements of states can have binding effect if the
intention that they be legally binding is clear; that
there is clear evidence regarding the circumstances
in which they are made; and that the question is
approached with due caution.
• The criteria for such obligation are:-
a. The intention of the State making the declaration
that it should be bound according to its terms
b. That the undertaking be given publicly. “No
subsequent acceptance of the declaration, nor even
any reply or reaction from other States is required
for the declaration to take effect’.
The application of Article 2 of VCLT
• South Africa (preliminary Objections) cases
‘the Mandate for South West Africa was an
international agreement having the character
of a treaty’

• Qatar v Bahrain
‘ The Court must have regard above all to its
actual terms and to the particular
circumstances in which it was drawn up’
 Vienna Convention on the law of
Treaties (Scope of the Convention)
• Art.1-4: Definition
• Art.-6-17: Conclusion and entry into force of
treaties
• Art.18: Obligation not to defeat the object and
purpose of a treaty prior to its entry into force
• Art 19-23: Reservations
• Art. 26: Pacta Sunt servanda
• Art 27: Prohibition against the use of domestic
legislation
• Art. 28: Application of treaties
• Art. 31-33: Treaties interpretation
• Art. 36: Treaties and third party
• Art. 61: Supervening impossibility of
performance
• Art. 46-53: Invalidity of treaties
• Art. 62: Fundamental Change of circumstances
• Art. 64: Emergence of Jus cogens
• Art. 71: Consequences of the invalidity of a
treaty which conflicts with peremptory norms
of international law
The making of treaties
 Formalities
• Can be concluded in any manner by the
parties
• Depend upon the intention of the states
concerned
• The power to make treaties depends upon
each country’s municipal regulations:
• In UK, the treaty making power is within
the prerogative of the Crown
• In US, the President is vested with the
power to make treaties with the advice
and consent of Senate and concurrence
of 2/3 of the Senators
Who can conclude a treaty on behalf of a state?
• Persons who have full power
– Article 7 (1)(a) VCLT
– Article 2 (1)(c) VCLT
• Full power has been dispensed based on the practice of the
state
– Article 7 (1) (b)
• Persons who do not have to produce full powers
– Heads of state and government, foreign ministers
• Article 7 (2) (a)
– Heads of diplomatic missions
• Article 7(2) (b)
– Accredited representatives
• Article 7 (2) (c)
 The act of unauthorized persons
• The act of an unauthorized person has no
legal effect unless it is confirmed by the state
– Article 8 of VCLT
• Example:
– In 1951 a convention concerning the naming of
cheeses, a delegate signed on behalf of Sweden
and Norway.
– Only Norway authorized him to sign.
– Both states later ratified the convention and
entered into effect.
The authorized person has limited
capacity
• An authorized representatives of a state
express consent to be bound although
restricted by the state (he cannot do so)
• It does not invalidate the consent
• Unless other states are notified about the
restriction beforehand
– Article 47 of the VCLT
 Consent
• Art 11 VCLT
• consent by signature (art 12 VCLT)
• exchange of instruments constituting a
treaty (art 13 VCLT)
• ratification (art 14 VCLT)
• acceptance, approval or accession(art 15 &
16 VCLT)
• or by any other means
• Consent by signature (art 12 VCLT)
• where the convention is subject to
acceptance, approval or ratification,
signature only mean that representatives
agreed to the text of the treaty
• Article 14 (1)(c) VCLT
• Art. 18 VCLT stipulates that state must
refrain from acts that would defeat the
object and purpose of the treaty until its
intention with regard has been cleared.
President Trump ends ratification process of U.N Arms Trade
Treaty
• Consent by ratification (art 14)
– ratification by the competent authorities of the
state to ensure that the representative did not
exceed his power or instructions
• Consent by accession (art 15)
– a state becomes a party to a treaty it has not
signed either because:
• the treaty provides that signature is limited
to certain states, and it is not such state;
• or because a deadline for signature has
passed
 Reservations to treaties
• Introduction
• The definition of reservation
• The situations that do not permit states to
formulate reservation
• The legal effects of reservations
 UN rights treaty can be ratified
‘with reservations’, says Waythamoorthy

Minister in the Prime Minister’s Department

P Waythamoorthy has reminded critics of the
plan to sign the United Nation’s
International Convention on Eliminating Racial
Discrimination (ICERD) that the ratification can be
done with “reservations”. “Their concerns are
natural, but I think we can overcome those
concerns and ratify ICERD with reservations. We
can do that with certain provisions of the
convention,” he told FMT, referring
to Khairy Jamaluddin’s comments in Parliament
last week.
 Definition
• Article 2 VCLT
‘a unilateral statement, however phrased or
named, made by a State, when signing, ratifying,
accepting, approving or acceding to a treaty,
where it purports to exclude or to modify the
legal effect of certain provisions of the treaty in
their application to that State’.
• The effect of reservation is to exclude the treaty
provision to which the reservation has been
made from the terms of the treaty in force
between the parties.
• By excluding certain provisions, states may agree
to be bound by treaty which otherwise they
might reject entirely (multilateral treaties)
Malaysia’s reservations to the CRC
"The Government of Malaysia accepts the
provisions of the Convention on the Rights of
the Child but expresses reservations with
respect to articles 2, 7, 14, 28 paragraph 1 (a)
and 37, of the Convention and declares that the
said provisions shall be applicable only if they
are in conformity with the Constitution, national
laws and national policies of the Government of
Malaysia."
 Australia’s reservation to the CRC
"Australia accepts the general principles of article
37. In relation to the second sentence of paragraph (c),
the obligation to separate children from adults in prison
is accepted only to the extent that such imprisonment
is considered by the responsible authorities to be
feasible and consistent with the obligation that children
be able to maintain contact with their families, having
regard to the geography and demography of
Australia. Australia, therefore, ratifies the Convention
to the extent that it is unable to comply with the
obligation imposed by article 37 (c)."
 Political statement and Interpretive
declaration
• Reservations must be distinguished from
other statements such as political statements
or interpretative declarations.
• Political statements or interpretative
declarations does not have any binding
consequences to the treaty
 Libya's Declaration to the VCDR
The accession of the Socialist People's Libyan
Arab Jamahiriya to said Convention cannot be
interpreted as signifying in any form whatsoever
any recognition of Israel nor does accession to
said Convention imply the entertaining of any
relations or obligations with Israel.
 Belilos v Switzerland
The question whether a declaration described as
"interpretative" must be regarded as a "reservation" is
a difficult one, particularly - in the instant case -
because the Swiss Government have made both
"reservations" and "interpretative declarations" in the
same instrument of ratification. More generally, the
Court recognises the great importance, rightly
emphasised by the Government, of the legal rules
applicable to reservations and interpretative
declarations made by States Parties to the Convention.
Only reservations are mentioned in the Convention, but
several States have also (or only) made interpretative
declarations, without always making a clear distinction
between the two.
‘ in order to establish the legal character of such
declaration, one must look behind the title given to
it and seek to determine the substantive content. In
the present case, it appears that Switzerland meant
to remove certain categories of proceedings from
the ambit of Article 6 § 1 (art. 6-1) and to secure
itself against an interpretation of that Article (art. 6-
1) which it considered to be too broad. However,
the Court must see to it that the obligations arising
under the Convention are not subject to restrictions
which would not satisfy the requirements of Article
64 as regards reservations. Accordingly it will
examine the validity of the interpretative
declaration in question as in the case of a
reservation in the context of this provision
 Anglo-French Continental Shelf
case
‘although reservation contained elements of
interpretation, it also constituted a specific
condition imposed by France on its acceptance.
It had the purpose of seeking to exclude or
modify the provisions of the treaty and thus
constituted reservation.’
• The statement will have to be interpreted in
good faith in accordance to the meaning of
the terms and context of the treaty and
intention of the party.
• The classical doctrine of reservations provides
that a state wishing to make reservation needs
to get consent from all parties to the treaty.
• However, the court in the case of Reservation
to the Genocide Convention did not accept
this restrictive approach.
• First question
‘A State which has made and maintained a
reservation which has been objected to by one or
more parties to the Convention but not by others
can be regarded as a party to the Convention if
the reservation is compatible with the object and
purpose of the treaty
• 2nd Question
‘a) if a party to the Convention objects to a
reservation which it considers to be incompatible
with the object and purpose of he Convention, it
can consider that the reserving state is not a
party to the Convention.
 b) a party accepts the reservation as being
compatible with the object and purpose of the
Convention, it can consider that the reserving
State is a party to the Convention

• Question 3
‘a) an objection to a reservation made by a
signatory state which has not yet ratified the
Convention, can have the legal effect only upon
ratification
b)an objection to a reservation by a state which
has not sign or accede is without legal effect.
 Reservation is not permitted in these
circumstances
• Reservations may be made when
signing, ratifying, accepting, approving or
acceding to a treaty, but they cannot be made
where the reservation is prohibited by the
treaty and where only specified reservations
may be made, (Art 19 VCLT)
• If a treaty is silent regarding reservations, a state
is entitled to make reservation that is not
incompatible with the object and purpose of the
treaty (Article 19 VCLT)
Restrictions to the Death Penalty case
‘Art 27 of the convention allows states parties to
suspend in time of war, public danger, or other
emergency that threatens their independence or
security provided that they do not suspend or
derogate from certain basic rights such as the right
to life guaranteed under Article 4. Thus, a
reservation which was designed to enable a State to
suspend any of the non-derogable rights must be
deemed to be incompatible with the object and
purpose of the Convention and not permitted’
Denmark’s objection to Malaysia’s reservation to
the CRC
The reservation is covering multiple provisions,
including central provisions of the Convention.
Furthermore, it is a general principle of international
law that internal law may not be invoked as justification
for failure to perform treaty obligations. Consequently,
the Government of Denmark considers the said
reservation as being incompatible with the object and
purpose of the Convention and accordingly
inadmissible and without effect under international
law. The Convention remains in force in its entirety
between Malaysia and Denmark….The Government of
Denmark recommends the Government of Malaysia to
reconsider its reservation to the said Convention."
• It appears from the limited number of the
negotiating states and the object and purpose
of a treaty that the application of the treaty
in its entirety between all the parties is an
essential condition of the consent of each one
to be bound by the treaty (Article 20(2) VCLT)
• The treaty is a constituent instruments of
international organizations
 The effect of reservations
• Acceptance to the reservation
– Reservation modifies the relationship
between the reserving state and other
parties
– It excludes or modifies the provisions of the
treaty
– Principle of reciprocity
• Libyan reservation to the 1961 Vienna
Convention on Diplomatic Relations
regarding diplomatic bag
• Norwegian Loan Case
 Libyan reservation to the 1961
Vienna Convention on Diplomatic Relations
In the event that the authorities of the Socialist
People's Libyan Arab Jamahiriya entertain strong
doubts that the contents of a diplomatic pouch include
items which may not be sent by diplomatic pouch in
accordance with paragraph 4 of article 27 of said
Convention, the Socialist People's Libyan Arab
Jamahiriya reserves its right to request the opening of
such pouch in the presence of an official representative
of the diplomatic mission concerned. If such request is
denied by the authorities of the sending state, the
diplomatic pouch shall be returned to its place of
origin.
• Objection to the reservation
– Art 21 (3) VCLT
• where a state objects to a reservation,
but not to the entry into force of the
treaty between itself and the reserving
state, then ‘the provisions to which the
reservation relates do not apply as
between the two states to the extent of
the reservation’
 Anglo-French Continental Shelf
Thus, the combined effect of the French reservations
and their rejection by the United Kingdom is neither
to render Article 6 inapplicable in toto, as the French
Republic contends, nor to render it applicable in toto,
as the United Kingdom primarily contends. It is to
render the Article inapplicable as between the two
countries to the extent, but only to the extent, of the
reservations; and this is precisely the effect
envisaged in such cases by Article 21, paragraph 3 of
the Vienna Convention on the Law of Treaties and
the effect indicated by the principle of mutuality of
consent.
• Acceptance by another state of a reservation
constitutes the reserving state a party to the
treaty in relation to that other state
• An objection by another contracting state to a
reservation does not preclude the entry into
force of the treaty as between the objecting
and reserving state unless there is a contrary
intention
– Denmark’s objection to Malaysia’s
reservation to CRC
 Treaty A
Article 20

Motopia

Utopia
Freedonia
Ruritania
• An act expressing a state’s consent to be bound
by the treaty and containing a reservation is effective
as soon as at least one other contracting state
has accepted the reservation
• Reservations are deemed to have been accepted by
states that raised no objections at the end of 12
months period after notification of the reservation or
by the date on which the consent to be bound by the
treaty was expressed
• Reservations, acceptance of it and objections to,
must be in writing and communicated to the
contracting states
 Reservation to human rights treaties
• The UN Human Rights Committee in its General Comment
24/52 of 2 November 1994 emphasized that the provisions in
the ICCPR represented customary international law could not
be the subject of reservations. Reservations to non-derogable
provisions not falling in this category, states had a heavy onus
to justify such reservations. The effect of an unacceptable
reservation would be that the provision operated in full with
regard to the party that made the reservation and not that
the Covenant would not be in force at all.

• The Committee regarded itself as the only body able to

determine whether a reservation was or was not compatible
with the object and purpose of the Covenant.
• The International law Commission adopted the
Preliminary Conclusions on Reservations to Normative
Multilateral Treaties including Human Rights Treaties in
1997
• Reaffirmed the applicability of VCLT provisions on
reservations to all treaties including the human rights
treaties
• Accepted that the human rights monitoring bodies were
competent to comment and recommend the
admissibility of reservations
• However, emphasized that the reserving state has the
responsibility of taking action in the event of
inadmissibility and such state could modify or withdraw
the reservation or withdraw from the treaty
 Entry into force
• Depend on the decision of the negotiating
states
• In the absence of any agreement, a treaty
enter into force as soon as consent to be
bound by the treaty has been established for
all the negotiating states (Art 24 VCLT).
• Some treaties specify that they will come into
effect upon a certain date or after a
determined period following the last
ratification
• Eg. VCLT provides that it came into effect 30
days after the deposit of the 35th ratification
 Applications
• Art 28 VCLT-a treaty will not operate retroactively, it
will not bind a party as regards any facts or situations
prior to that state acceptance of the treaty unless a
different intention appear.
• Art 29 VCLT-a treaty is binding upon each party in
respect of its entire territory
• Art 34 VCLT-a treaty does not create either
obligations or rights for a third states without its
consent. (Art 35 VCLT) an obligation may arise for a
third state from a term of treaty if the third state
expressly accepts that obligation in writing
 Interpretation of treaties
• The purpose of interpretation is to discover
the intentions of the parties as expressed in
the text
‘the purpose of interpreting a treaty is to
establish the meaning of the text which the
parties must be taken to have intended it to
bear in relation to the circumstances with
reference to which the question of
interpretation has arisen’
 The
intentions
Teleological
of the
school
parties
Methods of
interpreting
a treaty

Objective or
textual
approach
 Objective or textual approach
• Gives precedence to the text of the treaty
• emphasis on the actual words of the treaty
• What did the parties say?
 The intentions of the parties
• Concerned with giving effect to the actual or
presumed intentions of the parties
• ‘real will’ of the states
 Teleological school
• To ascertain the object and purpose of the
treaty and to give effect to this
• Inquire into the objects and purposes of the
treaty taken as a whole
• To ascertain the original aims of the parties in
concluding the treaty by referring to the entire
course of negotiations and the circumstances
of its conclusion.
• Art. 31 VCLT
‘ A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be
given to the terms of the treaty in their
context and in the light of its object and
purpose’
• Art 31 (2):- interpretation would include
looking at preamble and annexes, agreement
and instrument made in connexion with the
conclusion of the treaty
• Art 31 (3) VCLT:-Interpretation would take into
account any subsequent agreement relating to
the treaty, any subsequent practice in the
application of the treaty, applicable rules of
international law.
• Art 31 (4) VCLT: special meaning
• Art 32 VCLT: Supplementary means of
interpretation- preparatory work of the treaty,
circumstances of its conclusion.
• Art. 31 and 32 of VCLT give precedence to the
textual or literal approach to interpretation
but do not exclude other forms of
interpretation
• Possible recourse to teleological approach
• The usage of supplementary materials to
avoid a meaning that is ambiguous, manifestly
absurd or unreasonable.
 Relative grounds
Absolute grounds

•Art 46-50 Invalidity of

treaties
•Render a treaty •Art 51-53
voidable at the
instance of an •Treaty is rendered
affected state void ab initio and
without legal effect
• Art 46-the failure to comply with internal law
regarding competence to conclude a treaty. This may
only be a ground for invalidating consent to be
bound if that failure was ‘manifest’-objectively
evident to any state conducting itself in the matter in
accordance with normal practice and good faith
Cameroon v Nigeria
‘limitation of his capacity would not be manifest
unless publicised……there is no obligations for states
to keep themselves informed of legislative and
constitutional developments in other states’
• Art. 47-the representatives purporting to conclude a
treaty were acting beyond the scope of their
instructions
• Art 48-error as vitiating ground. A state may
only invoke error in a treaty if it relates to
facts that formed an essential basis of its
consent
Temple case
‘plea of error cannot be allowed as a vitiating
consent if the party advancing it contributed
by its conduct or error, or could have avoided
it….the qualifications of persons who saw
Annex 1 map on Siamese side would made it
difficult for Thailand to plead error
• Art 49 & 50-fraud and corruption
• Art 51-coercion of a representative
e. pressure exerted on the President of Yugoslavia to
sign treaty with German in 1939 to establish German
Protectorate over Bohemia and Moravia.
• Art 52-coercion of a state
1973 Fisheries Jurisdiction Case
‘there can be little doubt as implied in the Charter of
the UN and recognised in Art. 52 VCLT, that under
contemporary international law an agreement
concluded under the threat or use of force is void’
• Art.53-conflict with norms of jus cogens,
(international public policy), consequences can be
found in art 71 VCLT
 Termination of treaties
• Express provisions (Article 54 (a) of the VCLT)
– Indefinite duration with right to terminate
• Example, Article 23 of the Terrorist Bombings
Convention 1997
– Duration for a fixed period with possibility of
extension
• Example, The Russia-UK Assistance on the
Destruction of Chemical Weapons Agreement 2001
– Indefinite duration with conditional right to withdraw
• Example Article X(1) of the Nuclear Non-
Proliferation Treaty 1968
– Duration for a specified period of years with no
provision for extension or withdrawal
• Termination or withdrawal by consent (Article
54 (b) of the VCLT)
• No provision for termination or withdrawal
– Article 56 (1) of the VCLT
– Article 56 (2) of the VCLT
• Termination or suspension by conclusion of a
later treaty (Article 59 (1) of the VCLT)
 Material breach
-Art 60 VCLT

Supervening
Termination impossibility of
of Treaties performance
-Article 61 VCLT

Fundamental Change of
circumstances-Article 62
VCLT
 Material breach
• May occur when (Art 60 (3) VCLT) :
o there is repudiation of a treaty that is not
sanctioned by the Convention
o there is violation of a provision essential to
the accomplishment of the object and
purpose of the treaty
• Namibia (Advisory Opinion) 1971
• Rainbow Warrior (Arbitration (New Zealand v
France) 1990
Rainbow Warrior
Gabčĺkovo-Nagymaros Case 1977
“only material breach of the treaty itself by
state party to it which entitles the other party
to rely on it for grounds of termination”
 Supervening impossibility of
performance
• The permanent disappearance or the
destruction of an object indispensable for the
execution of a treaty rendering the
performance of a treaty impossible
• Example:
a) The submergence of an island
b) The drying up of a river
c) Destruction of a dam by an earthquake
• Gabčĺkovo-Nagymaros Case 1977
 Fundamental Change of circumstances
• The change is of circumstances existing at the time of
the conclusion of the treaty;
• The change is “fundamental”;
• The change was not foreseen by the parties (when
they conclude the treaty)
• The existence of the circumstances constituted an
essential basis of the consent of the parties to be
bound by the treaties
• The effect of the change was to radically to transform
the extent of the obligations still to be performed
under the treaty
• Cannot be invoked if the treaty establishes boundary
and the result of a breach by a party (invoking it)
Fisheries Jurisdiction Case (Jurisdiction)
1974
“In order that a change of circumstances may
give rise to aground for invoking the
termination of a treaty it is also necessary that
it should have resulted in a radical
transformation of the extent of the obligations
still to be performed. The change must have
increased the burden of the obligations to be
executed rendering the performance
something essentially different from that
originally undertaken”
 Gabčĺkovo-Nagymaros Case 1977
A fundamental change of circumstances:
a) must have been unforeseen;
b) must have constituted an essential basis of
the consent of the parties to be bound by the
treaties
c) Applied only in exceptional cases