Unilateral Denunciation of Treaties: The Vienna Convention and the International Court

of Justice
Author(s): Herbert W. Briggs
Source: The American Journal of International Law , Jan., 1974, Vol. 68, No. 1 (Jan.,
1974), pp. 51-68
Published by: Cambridge University Press

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 UNILATERAL DENUNCIATON OF TREAnES.
THE VIENNA CONVENTION AND THE
INTERNATIONAL COURT OF JUSTICE

By Herbert W. Briggs *

The final preambular paragraph of the 1969 Vienna Convention on the

Law of Treaties affirms "that the rules of customary international law will
continue to govern questions not regulated by the provisions of the present
Convention;" and Article 4 of the Convention, establishing the nonretro-
activity of the Convention by providing that it "applies only to treaties
which are concluded by States, after the entry into force of the present
Convention with regard to such States," stipulates that this nonretroactivity
is "[w]ithout prejudice to the application of any rules set forth in the pres-
ent Convention to which treaties would be subject under international
law independently of the Convention." 1
The combined effect of the preambular passage and Article 4 is to affirm
that the rules of customary international law applicable to treaties and to
the parties to them will continue to govern (1) questions not regulated
by the provisions of the Vienna Convention (e.g., the effect of war on
treaties 2), as well as (2) matters on which the Vienna Convention does
contain substantive provisions, but where, because it has not yet entered
into force or has not become binding on a particular state, the Convention
as such is not applicable.3
It follows that the restrictive effects arising from requirements of entry
into force,4 consent to be bound, or nonretroactivity 5 are considerably

* Of the Board of Editors.

lUN Doc. A/CONF. 39/27, 23 May 1969; 63 AJIL 875 (1969). On the drafting
of this preambular provision, see United Nations Conference on the Law of Treaties,
Official Records, Vienna, Second Sess., 1969, A/CoNF.39/11/Add.1 (cited hereafter
as Vienna, O.R.II), 169-77 (31st and 32d plenary meetings) and A/CONF.39/11/
Add. 2, (cited hereafter as Vienna, O.R., III) 263, 271. On Art. 4, see Vienna, O.R.II,
310-41 (100th-104th meetings, C.1), 165-66 (30th plenary meeting) and Vienna,
O.R.III, 252-53. Consult also, SHABTAI ROSENNE, THE LAW OF TREATIES-A GUDE
TO THE LEGISLATIVE HISTORY OF THE VIENNA CONVENTION (1970).
2 Cf., Art. 73, Vienna Convention.
8 Cf., also Art. 43, Vienna. On the general problem, see R. R. Baxter, Multilaeral
Treaties as Evidence of Customary International Law, 41 BmRT. Y. B. INT. L. 275-300
(1965-66); R. R. Baxter, Treaties and Custom, Hague Academy of Intemational Law,
129 REC. DES CoURs, 25-105 (1970-71); Anthony A. D'Amato, THE CONCEPT OF CUSTOM
IN INTERNATIONAL LAW (1971); H. W. A. Thirlway, INTERNATIONAL CUSTOMARY LAW
AND CODIFICATION (1972).
4 Cf., Art. 84, which requires 35 ratifications or accessions for the Convention to enter
into force.
5 Cf., Art. 4.

51

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52 THE AMICAN JOURNAL OF INTERNATNAL LAW [Vol. 68

mitigated because the Vienna Convention is so largely a consolidation of

the existing customary international law of treaties.
Like the International Law Commission, the Vienna Conference on the
Law of Treaties refrained in most cases from indicating whether a par-
ticular provision was regarded as a codification of existing law or as a
development of the law. The penultimate preambular clause of the Con-
vention refers to "the codification and progressive development of the law
of treaties achieved in the present Convention." 6 The size of the affirma-
tive votes at Vienna, while certainly not conclusive on the point, may
provide some indication of familiarity with a rule or principle which led
to its relatively easy acceptance.
All articles in the Vienna Convention required adoption by a two-thirds
vote of the states present and voting.7 Of 85 articles, 60 were adopted
unanimously (with abstentions on 23 of them, running from 1 to 17 ab-
stentions).8 Of 25 articles on which there were negative votes, there was
but one negative vote on each of 8 articles, and only 2 on 4 more. The
largest number of negative votes were on Article 15 (accession, but no
universal participation, 73-14-8); Article 38 (treaty rules becoming cus-
tomary law, 83-13-7); Article 45 (estoppel, 84-17-6); Article 66 (pro-
cedure for judicial settlement, 61-20-26); and Articles 81 and 83 (because
no "all-States" formula included, 84-11-5 and 83-13-6, respectively). The
lowest number of affirmative votes were recorded on Article 66 (procedure
for judicial settlement, 61-20-26) and Article 67 (declarations of invalid-
ity, etc., 68-1-29).
There was widespread acceptance at Vienna of the view expressed by
Hans Blix (Sweden), a well-known authority on the law of treaties:

It was generally agreed that most of the contents of the present con-
vention were merely expressive of rules which existed under customary
international law.9

Mustafa Kamil Yasseen (Iraq), the distinguished chairman of the Draft-

ing Committee at Vienna, similarly observed:

The purpose of the draft articles was not only to create new rules, but
in the main to formulate existing rules which were already part of
positive international law. It had to be realized that non-retroactivity,
which was the principle that should be adopted, could not impair the
binding force of those rules, since, in general international law, cus-
tomary rules, for instance, or rules deriving from some other source
of international law did not lose their character of positive law by the
mere fact of their being codified in an international convention.10
6 Italics added.
7 Rules of Procedure 35 and 36. Loc. cit., Vienna, O.R., I, xxviii.
80f the articles adopted unanimously, significant numbers of abstentions were re-
corded on Art. 20 (objection to reservations, 83-0-17) and Art. 30 (effect of success-
sive treaties, 90-0-14). Other significant abstentions occurred on articles on which
there were negative votes, as indicated above. For the voting, consult the Official
Records. See also RosEnNE, cited supra note 1.
9 Loc. cit., Vienna, O.R.II, 321, par. 43.
10 Ibid., 325, par. 20.

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 1974] UNIERAL DENUNCIATION OF TEEATIES 53

Sir Humphrey Waldock, to whose wise and expert guidance the Vienna
Convention on the Law of Treaties is eloquent testimony, observed at
Vienna that:

he had been very comforted to hear many representatives at tlhe

Conference speak of the convention as essentially a codifying instru-
ment. That was the right view if the oonvention was regarded essen-
tially as a consolidating instrument which took account of differences
of opinion but found a common agreement as to the lines to be followed
in the law of treaties....

. . . He had been very glad to hear the representative of Switzerland

emphasize the inter-temporal element in international law, because
that element was his particular preoccupation. Conventions such as
the one under consideration have their consolidating force and even
matters which might or might not have been international law . . . at
the time of the convention might be so considered at a later date."

While the observations made above should not be regarded as an argu-

ment against the necessity or desirability of widespread ratification and
the early entry into force of the Vienna Convention as such, it will be
interesting to examine with some attention the attitude of the Intermational
Court of Justice towards the Vienna Convention and its content as revealed
by the most recent jurisprudence of the Court.
Although the Court has had no occasion to pronounce upon the current
status or effect of the Vienna Convention as a whole, it has already made
observations upon, or followed implicitly,'2 particular provisions of the
Convention. It is noteworthy that the articles of the Vienna Convention
on which the Court has made explicit observations have all concemed
claims to terminate treaties unilaterally on grounds such as breach, coer-
cion, or changed conditions, and it is to these aspects of the cases to be
examined that our attention will be largely confined.

UNILATERAL DENUNCIATION OF TREATIS FOR BREAcH

Namibia: The Court's Unfortunate Dictum

In the Namibia case,'3 the International Court of Justice was requested
by the United Nations Security Council to give an advisory opinion on
the legal consequences for states of the continued presence of South Africa

"Ibid., 337, pars. 77, 80.

12Although it will not be further discussed here, the manner in which the Court
proceeded to interpret the 1961 Exchanges of Notes between the United Kingdom and
Iceland and the Federal Republic of Germany and Iceland in the Fisheries Jurisdiction
cases, Judgments of Feb. 2, 1973 on the Jurisdiction of the Court, ICJ REPORTS, 1973,
pars. 13-23 (U.K. v. Iceland) and pars. 14-23 (F.R.G. v. Iceland), provides an ad-
mirable example of the way in which Arts. 31 and 32 of the Vienna Convention on
the Law of Treaties were intended by their draftsmen to be applied in order to dis-
cover the intentions and expectations of the parties tlhrough an examination of text,
context, object, and travaux pr4paratoires. See further, 65 AJIL 707-12 (1971).
13 Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Ad-
visory Opinion of June 21, 1971. ICJ REPORTS, 1971, at 16.

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54 T AMRICAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

in Namibia. In examining the action of the United Nations General As-

sembly in terminating the Mandate exercised by South Africa over South
West Africa because of the failure of South Africa to fulfill its obligations
thereunder, the Court noted (par. 90) that "with the entry into force of
the Charter of the United Nations a relationship was established between
all Members of the United Nations on the one side, and each mandatory
Power on the other," 14 and observed (par. 91):

One of the fundamental principles governing the international rela-

tionship thus established is that a party which disowns or does not
fulfil its own obligations cannot be recognized as retaining the rights
which it claims to derive from the relationship.'5

Seeking further justification for the General Assembly action, the Court
thought it "appropriate to have regard to the general principles of inter-
national law regulating termination of a treaty relationship on account
of breach" (par. 94), because, even if the Mandate is of a special insti-
tutional character, it "incorporates a definite agreement," as the Court
itself observed in an earlier judgment,"6 and the Mandate, "in fact and in
law, is an international agreement having the character of a treaty or
convention."
Referring to Article 60 17 of the Vienna Convention, the Courts Namibia

14 Ibid., 45. 15 Ibid., 46.

16 South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), Pre-
liminary Objections, Judgment of December 21, 1962, ICJ REPORTS, 1962, 319 at 331
and 330.
17 Article 60 reads as follows:

Termination or suspension of the operation of a treaty as a consequence of its breach

1. 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 suspending its operation
in whole or in part.

2. A material breach of a multilateral treaty by one of the parties entitles:

(a) the other parties by unanimous agreement to suspend the operation of the
treaty in whole or in part to terminate it either:
(i) in the relations between themselves and the defaulting State, or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for sus-
pending the operation of the treaty in whole or in part in the relations between itself
and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground
for suspending the operation of the treaty in whole or in part with respect to itself
if the treaty is of such a character that a material breach of its provisions by one
party radically changes the position of every party with respect to the further per-
formance of its obligations under the treaty.
3. A material breach of a treaty, for the purposes of this article, consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or
purpose of the treaty.

4. The foregoing paragraphs are without prejudice to any provision in the treaty
applicable in the event of a breach.

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1974] UNILATERAL DENUNCIATION OF TREATIES 55

opinion continues (pars. 94-95):

94. The rules laid down by the Vienna Convention on the Law of Treaties
concerning termination of a treaty relationship on account of breach
(adopted without a dissenting vote) may in many respects be con-
sidered as a codification of existing customary law on the subject.
In the light of these rules, only a material breach of a treaty justifies
termination, such breach being defined as:
(a) a repudiation of the treaty not sanctioned by the present con-
vention; or
(b) the violation of a provision essential to the accomplishment of
the object or purpose of the treaty. (Art. 60, para. 3).

95. General Assembly resolution 2145 (XXI) determines that both forms
of material breach had occurred in this case. By stressing that South
Africa "has, in fact, disavowed the Mandate", the General Assembly
declared in fact that it had repudiated it. The resolution in question
is therefore to be viewed as the exercise of the right to terminate a
relationship in case of a deliberate and persistent violation of obliga-
tions which destroys the very object and purpose of that relationship.18
Had the Court stopped here in its discussion of the right to terminate
a treaty for breach, one might have little with which to quarrel, although
the Court might usefully have stated more explicitly that it was applying
the principles set forth in paragraph 2(a) of Article 60, i.e., the right of the
other parties to the treaty collectively to terminate it for material breach.'9
Most unfortunately, however, the Court proceeds (par. 96) to refer to
a supposed

general principle of law that a right of termination on account of breach

must be presumed to exist in respect of all treaties, except as regards
provisions relating to the protection of the human person contained in
treaties of a humanitarian character (as indicated in Art. 60, para. 5,
of the Vienna Convention). The silence of a treaty as to the existence
of such a right cannot be interpreted as implying the exclusion of a
right which has its source outside of the treaty, in general interna-
tional law, and is dependent on the occurrence of icircumstances which
are not normally envisaged when a treaty is concluded.20
The Court produces no evidence to support its allegation that a general
principle of law establishes "a right of termination on account of breach."
Moreover, it fails to note that even had such a supposed right existed in
general international law, it finds no recognition in Article 60 of the
Vienna Convention (which the Court properly regards as "in many re-
spects . . . a codification of existing customary law" on termination of a

5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the

human person contained in treaties of a humanitarian character, in particular to pro-
visions prohibiting any form of reprisals against persons protected by such treaties.
18 ICJ REPORTS, 1971, at 47.

19 Would the fact that Portugal joined South Africa in voting against General As-
sembly resolution 2145 (XXI) be sufficient to defeat the purpose of par. 2(a) of Art.
60 of the Vienna Convention, which refers to "the other parties by unanimous agree-
ment?"
20Loc. cit., 47. The concluding clause appears, confusingly, to add the rebus sic
stantibus principle in support of the alleged rule.

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56 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

treaty relationship on account of breach), except with regard to joint ac-

tion by other parties to terminate a multilateral convention.
More explicitly, the only recognition of such an alleged right in the
Vienna Convention is found in par. 2(a) of Article 60. No such alleged
"night of termination" is recognized for bilateral treaties, where a material
breach may only be invoked as a ground for termination or suspension; and
pars. 2(b) and 2(c) permit invocation of a material breach of a multilateral
treaty only as a ground for suspension, not termination, of the treaty.
In a legal sense, the distinction between "a right to terminate" and "a
right to invoke as a ground for termination" is not entirely dependent upon
the availability of a forum with compulsory juris-diction.21 In its official
Commentary on Article 57 (Art. 60, Vienna) the International Law Com-
mission observed in part:

(5) The Commission was agreed that a breach of a treaty, however

serious, does not ipso facto put an end to the treaty, and also that it
is not open to a state simply to allege a violation of the treaty and
pronounce the treaty at an end ...

(6) . . . The formula "invoke as a ground' is intended to underline

that the right arising under the article is not a right arbitrarily to
pronounce the treaty terminated....22

That the distinction was understood at the Vienna Conference on the

Law of Treaties is clearly demonstrated by the rejection, by votes of 52-4-
34 and 51-3--38, of Venezuelan proposals to substitute a right "to termi-
nate" for the right to invoke a breach as a ground for termination or sus-
pension set forth in the International Law Commission's draft.23 After
amending the Commission's text of Article 57(2) (c) [Art. 60(2) (c), Vienna]
to substitute a right "to invoke the breach as a ground" for suspension for
the right "to suspend" which had crept into the Commission's text,24 the
Vienna Conference adopted the article by a vote of 88-0-7.
The Vienna Convention contains its own procedures for settlement of
disputes arising, inter alia, from claims of a unilateral right to terminate
or suspend treaties.25 It is true that the Vienna Convention is not yet in
force and the Court was not purporting to apply it as such in the Namibia
case. However, the elaborate care with which the International Law
Commission and the Vienna Conference in their restatement of the law o

21 Cf. the observation of Judge de Castro in his Separate Opinion in the ICAO Cou
cil (Jurisdiction) case (ICJ REPORTS, 1972, 46, at 133 n.), inveighing against "wh
is a fairly common source of confusion, namely the belief that the absence of any
tribunal having compulsory jurisdiction arbitrarily leaves States free to terminate or
suspend treaties," whereas "The true position is that a declaration of termination or
suspension must be objectively justified to be valid."
22 INTERNATIONAL LAW COMMISSION, REPORT ON rIs 18TH SESS. (1966) 83 (GAOR,
21st sess. (A/6309/Rev. 1); 61 AJIL 424 (1967).
23 See discussion in the Committee of the Whole, loc. cit., Vienna, O.R. I, 352 if.;
O.R., III, 181 iff.
24 Ibid., O.R. II, 111 ff. (21st plenary meeting); O.R. III, 269.
25 See Arts. 42, 65, 66, and Annex.

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1974] UNILATERAL DENUNCIATION OF TREATIES 57

treaties restricted any claim of a unilateral right by a state to terminate

a treaty for breach to a right to invoke the breach as a ground for termi-
nation or suspension should have given pause to the Court, particularly
before it indulged in obiter dicta and made undiscriminating generaliza-
tions not essential to the case before it. It should be carefully noted that
no question of a claim by a state of a unilateral right to terminate a treaty
for breach was before the Court in this case. In Namibia the Court was
dealing incidentally with the revocation by a collective supervisory organ
of a multilateral treaty having institutional characteristics because of
nonperformance. The only analogy with Article 60 of the Vienna Conven-
tion is with the collective right of termination set forth in paragraph 2(a).
The failure of the Court to confine its observations to the point actually
before it led it to make unsupported generalizations about "a right [of
termination] which has its source outside the treaty, in general international
law" (par. 96)-obiter dicta which appear to have misled counsel for India
in its dispute with Pakistan over the Jurisdiction of the ICAO Council.

Jurisdiction of the ICAO Council Case: India Misled

In the Appeal relating to the Jurisdiction of the ICAO Council (India v.
Pakistan),26 the issue of the right of a state unilaterally to terminate or
suspend multilateral treaties for breach arose in two ways: in regard to
the jurisdiction of the ICAO Council and in regard to the jurisdiction of
the International Court of Justice itself. The case came before the Court
on an appeal brought by India (on the basis of jurisdictional clauses in
the 1944 Chicago Convention on International Civil Aviation and the 1944
Chicago International Air Services Transit Agreement, and Articles 36 and
37 of the Courts Statute) against decisions of the Council of the Inter-
national Civil Aviation Organization taking jurisdiction over an Applica-
tion and Complaint brought by Pakistan (under the jurisdictional clauses
of the same Chicago Treaties) on the ground that India had violated pro-
visions of those treaties by unilaterally suspending flights of Pakistan air-
craft over Indian territory.
The Indian Memorial 27 requested the Court to reverse as "illegal, null
and void, or erroneous" the assumption of jurisdiction by the ICAO Council
over the claim of Pakistan on the ground (inter alia) that, since the Chi-
cago treaties had "been terminated or suspended as between the two
States," the Council's jurisdiction, which rested only on the jurisdictional
clauses of those treaties, no longer existed. Although, in its Counter-
Memorial, Pakistan asked the Court to reject the Indian appeal and to
confinn the decisions of the ICAO Council,28 in oral pleadings, counsel for
Pakistan proceeded to challenge the jurisdiction of the Court,29 in part
26 Judgment of August 18, 1972, ICJ REPORTS, 1972, at 46.
27 SinCe the Court's documentation is not yet available, I have followed the Indian
Memorial and the Pakistan Counter-Memorial as reprinted in 12 INDL9N J. OF INT. L.
421-62 (Memorial) and 463-89 (Counter-Memorial) (1972). See also ICJ REPORTS,
1972, at 49.
28 ICJ REPORTS, 1972, at 50. 29 Ibid., 52 ff.

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58 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

on the ground that

since it is one of India's principal contentions that the Treaties are not
in force at all (or at any rate in operation) between the Parties, (a)
India cannot have any ius standi to invoke their jurisdictional clauses
for the purpose of appealing to the Court, and (b) India must admit
that the Court in any event lacks jurisdiction under its own Statute
because. . .

according to the Indian argument, the treaties are no longer "treaties and
conventions in force" within the terms of Article 36, par. 1, of the Court's
Statute.30

The Court decisively rejected the Pakistan challenge to its jurisdiction

and, among other interesting observations, made one pertinent to the
present study:

(b) Nor in any case could a merely unilateral suspension per se

render jurisdictional clauses inoperative, since one of their purposes
might be, precisely, to enable the validity of the suspension to be
tested. If a mere allegation, as yet unestablished, that a treaty was
no longer operative could be used to defeat its jurisdictional clauses,
all such clauses would become potentially a dead letter, even in cases
like the present, where one of the very questions at issue on the merits,
and as yet undecided, is whether or not the treaty is operative-i.e.,
whether it has been validly terminated or suspended. The result would
be that means of defeating jurisdictional clauses would never be
wanting.31

After establishing its own jurisdiction, the Court turned to the issue of
the jurisdiction of the ICAO Council. The jurisdictional clauses 32 were
limited to "any disagreement between two or more contracting States re-
lating to the interpretation or application" of the Chicago Treaties. Con-
sequently, observed the Court, unless the dispute "is one that can be re-
solved without any interpretation or application of the relevant Treaties
at all . . . then the Council must be competent." 33
India, maintaining that the Council lacked jurisdiction because the dis-
pute could be resolved without any reference to the treaties, relied on two
principal contentions: (1) that the treaties were no longer in force or
were suspended as between India and Pakistan; and (2) that, even if
they were in force between the parties, the dispute related to the termiina-
tion or suspension of the treaties, not to their interpretation or application,
and therefore did not fall within the jurisdictional clauses.34
Although India contended as regards the first point that "the question
of justification for termination or suspension of the Convention or the
Transit Agreement is not within the scope of the Council's jurisdiction

so Ibid., 52-53. 81 Ibid., 53-54.

82Art. 84 of the Chicago International Civil Avia
tion 2, of the International Air Services Transit Agr
88 Ibid., 62. 34 Ibid., 62, par. 29.

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 1974] UNIATERAL DENUNCIATION OF ITEATIES 59

and does not arise as an issue" in its appeal to the Court,85 India never-
theless proceeded to present the Court with arguments that either (a) the
treaties were or became terminated or suspended as between the parties
because of the outbreak of hostilities between India and Pakistan in 1965,
and had never been revived; or (b) India "had the right to suspend them
unilaterally, and it should be regarded as having suspended them uni-
laterally" 36 in 1971 under general principles of international law permitting
unilateral termination or suspension for breach (in particular, the hijack-
ing of an Indian plane, allegedly involving Pakistan complicity).
This allegation of a unilateral right of termination or suspension of
treaties for breach under general principles of international law was also
advanced by India to support its second main contention that the termina-
tion or suspension of a treaty making no provision therefor could not
involve the interpretation or application of that treaty and was conse-
quently not within the jurisdictional clauses. In other words, Indian be-
havior was not under the treaties, but outside them.37
In support of the alleged right "to unilateral termination or suspension
of a multilateral treaty due to material breach,"38 India placed undis-
criminating reliance on, inter alia, paragraphs 94 and 96 89 of the Namibia
opinion of the International Court of Justice, on Article 60 of the Vienna
Convention on the Law of Treaties,40 and on an Indian author, whose
major thesis, if not all the evidence, supported the Indian contention.4'
What position did the Court take on this asserted right? The Court first
noted that the issue belonged to the merits of the dispute into which the
Court could not go. However, there were certain preliminary points which
were relevant to the jurisdictional issue before the Court and a correct ap-
preciation of the Indian position thereon.42 The contention relied on most
prominently by India was that its behavior was outside the treaties and
justified by a general principle of international law, and therefore the ICAO
Council, whose jurisdiction arose under the treaties, was incompetent. This
contention, said the Court,

involves a point of principle of great general importance for the juris-

dictional aspects of this-or of any-case . . . . The Court considers
however, that for precisely the same order of reason as has already
been noticed in the case of its own jurisdiction in the present case, a
mere unilateral affirmation of these contentions-contested by the other
party-cannot be utilized so as to negative the Council's jurisdiction.
The point is not that these contentions are necessarily wrong but that
their validity has not yet been determined. Since therefore the Parties
are in disagreement as to whether the Treaties ever were (validly) sus-
pended or replaced by something else; as to whether they are in force

35 Indian Menwrial, par. 30, cited supra note 27.

36 Ibid., and pars. 33 i. W7 Ibid., pars. 75 if.
38 Ibid., pars. 37 i., 75. 39 Quoted supra at notes 18 and 20.
40 Supra, note 17.
41 BHEK PATI SINHA, UNILATRAL DENUNCIATION OF TREATY BECAUSE OF PRIOR VIO-
LATONS OF OBLIGATIONS BY OTHER PARTY (1966).
42 ICJ REPORTS, 1972, at 62.

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60 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

betweell the Parties or not; and as to whether In

to Pakistan overflights was such as not to involve the Treaties, but to be
justifiable aliter et aliunde;-these very questions are in issue before
the Council, and no conclusions as to jurisdiction can be drawn from
them, at least at this stage, so as to exclude ipso facto and a priori the
competence of the Council.43

The Court continued by observing that it would be "destructive of the

whole object of adjudicability" and "a wholesale nullification of the practical
value of jurisdictional clauses" if a party were allowed "first to purport to
terminate, or suspend the operation of a treaty, and then to declare that the
treaty being now terminated or suspended, its jurisdictional clauses were
in consequence void, and could not be invoked for the purpose of contesting
the validity of the termination or suspension . . ." 44
The importance of what the Court is saying here is not to be minimized
because the Court, by limiting the issue to treaties containing jurisdictional
clauses, failed to clear up the ambiguity of its Namibia obiter dicta about
the unilateral right of a state under general international law to terminate
a treaty for breach, which had misled counsel for India in this case.45 In-
deed, the Court may have invited further claims to such an alleged right
by observing (as noted above) that "The point is not that these contentions
are necessarily wrong . . ."
However, the Court proceeded to limit further the scope of the Indian
contention by holding that a dispute as to the termination or suspension of
a treaty for alleged material breach by the other party

is inherently and by its very nature, one that must involve the examina-
tion of the Treaties in order to see whether, according to the definition
of a material breach of a treaty contained in Article 60 of the 1969
Vienna Convention on the Law of Treaties, there has been (paragraph
3(b)) a violation by Pakistan of a "provision essential to the accom-
plishment of the object or purpose of the Treaty."46

This holding that a dispute as to termination or suspension of a treaty for

breach is necessarily one as to its interpretation or application (and thus
comes within the ICAO Council's competence under the jurisdictional
clauses) is all the more interesting because of the Courts reliance on the
Vienna Convention on the Law of Treaties as an authoritative statement of
international law, even prior to the entry into force of that Convention.
The Court properly confined itself to upholding its own jurisdiction and
that of the ICAO Council; 47 but it may be noted that much of the rationale
advanced by the Court to restrict claims of a unilateral right under general
international law to terminate or suspend jurisdictional treaties for breach

43 Ibid., 64, par. 31. 44Ibid., 64-65.

45Judge de Castro saw the point clearly when he observed in his Separate Opinion
that "The Advisory Opinion in the Namibia case does not support India's contention"
(ibid., 130, n.1) and that "It is not correct that the principle laid down in Article 60
of the Vienna Convention is dehors the Chicago Convention" (ibid., 129).
48 Ibid., 67.
4 Ibid., 70. By votes of 13 to 3 and 14 to 2, respectively.

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1974] UNILATERAL DENUNCIATION OF TREATIES 61

would appear to have cogency in relation to all treaties, whet

contain jurisdictional clauses.

OTHER CLAIMS OF A RIGHT OF UNILATERAL DENUNCIATION

The Fisheries Jurisdiction Cases: Iceland Defaults

The next occasion on which the Court had to deal with a claimed uni-
lateral right to terminate, or consider terminated, a treaty arose in the Fish-
eries Jurisdiction cases (the United Kingdom of Great Britain and Northern
Ireland v. Iceland and the Federal Republic of Germany v. Iceland)." Un-
like the cases discussed above, here the alleged right was based not upon
breach by the other party, but upon a variety of arguments including duress,
rebus stc stantibus, and rights allegedly derived from the nature of certain
treaties.
On April 14, 1972, the United Kingdom filed an Application before the
International Court of Justice instituting proceedings against Iceland chal-
lenging the proposed extension of Iceland's exclusive fisheries jurisdiction
from 12 to 50 miles around its shores. The United Kingdom founded the
Court's jurisdiction on Article 36, paragraph 1, of the Court's Statute and
a March 11, 1961, Exchange of Notes between the two countries under
which the United Kingdom recognized Iceland's claim to a 12-mile fisheries
limit in return for Iceland's agreement that any dispute as to the extension
of Icelandic fisheries jurisdiction beyond the 12-mile limit "shall, at the re-
quest of either party, be referred to the International Court of Justice."41
Despite the clarity of this jurisdictional clause, the Government of Ice-
land notified the Court by letter dated May 29, 1972 that Iceland was not
willing "to confer" jurisdiction on the Court and would not appoint an
Agent. Thereupon, the Government of the United Kingdom requested
the Court to grant interim measures of protection under Article 41 of the
Court's Statute, which the Court proceeded to do, while ordering hearings
on the question of its jurisdiction to deal with the merits.50
In its decision of February 2, 1973, the Court, finding by 14 to 1 that it
had jurisdiction, regretted the absence of Iceland in the proceedings, noted
its obligations under the Statute to establish its own jurisdiction, and ob-
served that in so doing it would "oonsider those objections with might, in
its view, be raised against its jurisdiction." B1

48Fisheries Jurisdiction (United Kingdom v. Iceland) Jurisdiction of the Court,

Judgment of February 2, 1973, ICJ REPORTS, 1973, at 3. The comparable Judgment
of Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Judgment of
February 2, 1973, ICJ REPORTS, 1973, at 49, is in many, but not all, respects identically
worded. For the purposes of this study reference is made only to the United Kingdom
case.
49 ICJ REPORTS, 1973, at 8.
50 See Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection, Order
of August 17, 1972, ICJ REPORTS, 1972, at 12. For the comparable Order in Federal
Republic of Germnany v. Iceland, ibid., 30.
51ICJ REPORTS, 1973, par. 12, citing Art. 53 of the Court Statute under which the
Court may give default judgments where it is satisfied that it has jurisdiction.

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62 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

Although Iceland had refused to submit written or oral pleadings, in fact,

as Judge Sir Gerald Fitzmaurice observed in his Separate Opinion:

Iceland has sent to the Court a series of letters and telegrams on the
subject, often containing material going far beyond the question of
competence and entering deeply into the merits, and has lost no op-
portunity of doing the same thing through statements made or circu-
lated in the United Nations, and by other means, all of which have of
course been brought to the attention of the Court in one way or another
as, doubtless, they were intended to be.52

In an aide-memoire of February 24, 1972, the British Government was in-

formed that "The Government of Iceland, therefore, considers the provisions
of the [1961] Notes exchanged no longer to be applicable and consequently
terminated." 53 As noted above, the grounds upon which Iceland justified
a unilateral right of termination were varied. At least five were identified
by the Court: (1) duress; (2) so-called "perpetual" treaties; (3) jurisdic-
tional treaties; (4) treaties whose object has been fulfilled; (5) changed
conditions.
Duress: In a letter addressed to the Registrar of the Court on May 29,
1972, the Minister for Foreign Affairs of Iceland stated that:

The 1961 Exchange of Notes took place under extremely difficult cir-
cumstances, when the British Royal Navy had been using force to
oppose the 12-mile fishery limit established by the Icelandic Govern-
ment in 1958.54

On this the Court observed:

This statement could be interpreted as a veiled charge of duress pur-

portedly rendering the Exchange of Notes void ab initio, and it was
dealt with as such by the United Kingdom in its Memorial. There can
be little doubt, as is implied in the Charter of thbe United Nations and
recognized in Article 52 of the Vienna Convention on the Law of
Treaties, that under contemporary international law an agreement con-
cluded under the threat or use of force is void.55

It was equally clear, however, that the Court could not consider so serious
an accusation on the basis of vague charges unsupported by evidence, par-
ticularly when the history of the negotiations leading up to the 1961 Ex-
change of Notes revealed that they had been "freely negotiated by the in-
terested parties on the basis of perfect equality and freedom of decision
on both sides." 56
What is significant for present purposes is the Court's unhesitating accep-
tance as a principle of contemporary international law of the rule "recog-
nized" in Article 52 of the Vienna Convention, providing that "A treaty is
void if its conclusion has been procured by the threat or use of force in
violation of the principles of international law embodied in the Charter of
the United Nations." This was not the traditional view under which treaties

52 Ibid., 35. 53 Ibid., 39.

54 Ibid., 14, par. 24. 55 Ibid.
56 Ibid., Cf., the Court's review of the negotiations,
and of the German-Icelandic negotiations, ibid. (F.R.G.-Ic

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1974] UNILATERAL DENUNCIATION OF TREATIES 63

procured through the coercion of a state by the threat or use of force were
nevertheless considered valid in international law. Since the Court found
no factual basis for the charge of duress, it found it unnecessary to consider
any procedural problems raised by the wording of Article 52.
Implied Right of Unilateral Denunciation Supposedly Derived From the
Nature or Character of Certain Treaties: In his letter of May 29, 1972, to
the Registrar of the Court, the Minister for Foreign Affairs of Iceland as-
serted that the 1961 Exchange of Notes "was not of a permanent nature"
and that "an undertaking for judicial settlement cannot be considered to
be of a permanent nature." 57
From these assertions the Court concluded that Iceland was contending
that "perpetual" treaties and treaties containing jurisdictional clauses were
by their nature subject to a right of unilateral termination.58 The Court
found no need to pronounce upon the existence of such alleged principles
of treaty law and contented itself with denying the perpetual nature of the
1961 Exchange of Notes and with distinguishing general treaties and dec-
larations of judicial settlement of unpredictable future disputes from the
specific compromissory clause in the 1961 Exchange of Notes "establishing
the jurisdiction of the Court to deal with a concrete kind of dispute which
was foreseen and specifically anticipated by the parties." When precisely
the type of dispute contemplated by the compromis was referred to the
Court, "the contention that the compromissory clause has lapsed, or is ter-
minable, cannot be accepted."
A third contention of Iceland, based upon assertions of its Foreign Minis-
ter, that "the object and purpose of the provisions in the 1961 Exchange
of Notes for recourse to judicial settlement in certain eventualities have
been fully achieved" and, therefore the agreement is no longer in force,60
was clearly indefensible, held the Court, in the light of the reciprocal nature
of the agreement reached in the Exchange of Notes, the terms of the com-
promissory clause, and the intentions and expectations of the parties.6'
However, continued the Court, Iceland's argument might be that since
Iceland in 1961 had traded the jurisdictional clause for a recognition of the
right to a 12-mile fisheries limit, and since today the 12-mile limit is gen-
erally recognized, there is a "failure of consideration' which entitles Iceland
to claim that the object and purpose of the agreement have been fulfilled
and it is therefore no longer binding on Iceland. The Court unhesitatingly
rejected such a contention because the very purpose of the 1961 Exchange
was "not merely to decide upon the Icelandic claim to fishelies jurisdiction
up to 12 miles, but also to provide a means whereby the parties might re-
solve the question of the validity of any further claims." 62
These three contentions based upon alleged principles supposedly derived
from the nature of treaties find no specific counterpart in the Vienna Con-
vention on the Law of Treaties, although, ironically, an unfortunate British
amendment to Article 56 opened the door to the type of claim made by

57Ibid., 14. 58 Ibid., pars. 25 if.

59 Ibid., 16. 60 Ibid., 39.
61 Ibid., 9-14, Cf., supra note 12. 62 Ib

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64 THE AMERICAN JOURNAL OF INTERNATONAL LAW [Vol. 68

Iceland. After careful debate, the International Law Commission had re-
jected the proposal of its Special Rapporteur, Sir Humphrey Waldock, that
certain treaties, by their nature, were to be regarded as limited in duration
or as subject to a right of unilateral denunciation-a view supported by
some British authors.63 The Commission decided that the rules of inter-
national law governing the termination of treaties, were fully applicable to
commercial treaties, treaties of alliance, treaties of judicial settlement, and
so-called "perpetual" treaties without the necessity for any special rules
based upon the "nature" or "'character" of a treaty-a pseudo-scientific
notion which refers not to the juridical nature of treaties but to their content
or political purpose. The Commission therefore adopted an article (Art.
53) providing:

1. A treaty which contains no provision regarding its termination and

which does not provide for denunciation or withdrawal is not subject
to denunciation or withdrawal unless it is established that the parties
intended to admit the possibility of denunciation or withdrawal.
At the Vienna Conference in 1968, there were some mutterings about
"perpetual" treaties and the Committee of the Whole unwisely adopted, by
a vote of 26-25, with 37 abstentions, a British proposal to add to the above
"unless" clause: "or (b) a right of denunciation or withdrawal may be im-
plied by the nature of the treaty." 64

Since the Vienna Convention applies only to treaties which are concluded
by states after its entry into force with regard to such states,65 there may
be little occasion to imply a right of denunciation of "perpetual" treaties.
Nor has the abusive practice by which some states have claimed a right to
terminate on notice their unilateral declarations accepting the compulsory
jurisdiction of the International Court of Justice found any lodgement in
the law of treaties. The attitude of the Court in the Fisheries Jurisdiction
cases suggests that any claim by a state of a unilateral right of denunciation
implied from the nature of a treaty will be received with reserve.
Fundamental Change of Circumstances: The contention of changed cir-
cumstances as a ground for invoking the termination or suspension of a
treaty (or, as Iceland presented it, of conferring a unilateral right to termi-
nate) was considered by the Court to have been advanced both in relation
to changes in the law and as to changed factual circumstances such as im-
proved fishing techniques and depletion of resources.

63 See 2 Y.B. INr. L. CoMM., 1963, at 64-70, Second Report on the Law of Treaties,
by Sir Humphrey Waldock, Arts. 16 and 17, with Commentary. For the debate in
the International Law Commission, see 1 ibid., 98-107 (688th-89th meetings), 239-41
(709th meeting), 293-94 (717th meeting); and (as Art. 39), 1 ibid., 1966, Part I,
43-48 (829th meeting).
64 As rephrased by the Drafting Committee. See Vienna, O.R. III, 177-78 (on Art.
53 of the ILC text). For the debate in the Committee of the Whole, ibid., O.R. I,
336-43 (58th and 59th meetings, May 8, 1968); and in plenary, ibid., O.R. II, 108-
10 (20th and 21st meetings, May 12-13, 1969), where the amended text of Art. 53
was adopted by a vote of 95-0-6, and became Art. 56 of the Vienna Convention.
65 Art. 4. Cf., Art. 28.

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1974] UNILATERAL DENUNCIATION OF TREATIES 65

As regards the Icelandic contention that the law had changed (the 12-
mile fisheries limit had become generally accepted since Iceland had bar-
gained the jurisdictional clause for British recognition of it in 1961, and
therefore the 1961 Exchange of Notes was no longer applicable), the Court
observed that "While changes in the law may under certain conditions con-
stitute valid grounds for invoking a change of circumstances affecting the
duration of a treaty," the contention was not relevant to the present case
since, as noted above, the purpose of the 1961 agreement was not merely
to recognize an Icelandic claim of 12 miles but also to provide a means
for the settlement of claims to exclusive fisheries jursidiction beyond that
limit.66 Said the Court:

Clearly it then becomes incumbent on Iceland to comply with its side

of the bargain, which is to accept the testing before the Court of the
validity of its further claims to extended jurisdiction. Moreover, in the
case of a treaty which is in part executed and in part executory, in
which one of the parties has already benefited from the executed pro-
visions of the treaty, it would be particularly inadmissible to allow
that party to put an end to obligations which were accepted under the
treaty by way of quid pro quo for the provisions which the other party
has already executed.67

On the general principle of rebus sic stantibus,68 the Court made the fol-
lowing carefully worded observation:

International law admits that a fundamental change in the circum-

stances which determined the parties to accept a treaty, if it has re-
sulted in a radical transformation of the extent of the obligations im-
posed by it, may, under certain conditions, afford the party affected a
ground for invoking the termination or suspension of the treaty. This
principle, and the conditions and exceptions to which it is subject,
have been embodied in Article 62 of the Vienna Convention on the
Law of Treaties, which may in many respects be considered as a codi-
fication of existing customary law on the subject of the termination of
a treaty relationship on account of change of circumstances."9

66 ICJ REPORTS, 1973, at. 17. 67 Ibid., 18.

68 The Court itself did not employ the term rebus sic stantibus, which had also been
abandoned by the International Law Commission so as to avoid its doctrinal implica-
tions. Cf., 2 Y. B. INT. L. CoMM. (1966), at 258 (Report of the International Law
Commission, 18th Sess., Commentaly (par. 7) on Art. 59); 61 AJIL 432 (1967). Nor
does the term appear in the Vienna Convention.
69 ICJ REPORTS, 1973, par. 36. The text of Art. 62 of the Vienna Convention reads:

Fundamental change of circumstances

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 con-
sent 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.

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66 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

The Court then proceeded to apply the provisions of Article 62 of the

Vienna Convention to the case before it. The Icelandic contention, made
in an Althing resolution of February 15, 1972, "that because of the vital
interests of the nation and owing to changed circumstances the Notes con-
cerning fishery limits exchanged in 1961 are no longer applicable and that
their provisions do not constitute an obligation for Iceland" was regarded
by the Court as implying, inter alia, a claim that the change of circum-
stances was "fundamental" (as required by Article 62).70 However the
United Kingdom queried the fundamental nature of any change of circum-
stances in fisheries around Iceland; and the Court observed that any such
changes would come up for consideration in a hearing on the merits of the
dispute.
The "exceptional dependence of Iceland on its fisheries for its subsistence
and economic development" was expressly reoognized, continued the Court,
in the 1961 Exchange of Notes and in the Court's own Orders of August
17, 1972, indicating interim measures of protection. Whether such eco-
nomic dependence conferred any legal basis for a unilaterally promulgated
Icelandic claim of exclusive fisheries jurisdiction beyond the 12-mile limit
was also an issue for the merits.71
On the jurisdictional point, however, the Court observed that "the ap-
prehended dangers for the vital interests of Iceland, resulting from changes
in fishing techniques, cannot constitute a fundamental change with respect
to the lapse or subsistence of the compromissory clause establishing the
Court's jurisdiction." Moreover, the Court could find no fundamental
change of circumstances which (as required by Article 62 of the Vienna
Convention) radically increased the burden of obligations still to be per-
formed by Iceland: the present dispute was "exactly of the character antici-
pated in the compromissory clause." 72
The Court concluded its analysis with an important observation on what
it referred to as "the procedural complement to the doctrine of changed
circumstances." The United Kingdom Memorial had criticized the Ice-
landic contention based on changed circumstances for claiming a right of
unilateral denunciation, rather than a right to invoke the doctrine as a
ground for termination, if necessary before "some organ or body with power
to determine whether the conditions for the operation of the doctrine are
present." In this connection, the United Kingdom alluded to the procedures

2. A fundamental change of circumstances may not be invoked as a ground for termi-

nating 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 intemational 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 withdrawang from a treaty it may also
invoke the change as a ground for suspending the operation of the treaty.
70 Ibid., 19. 71 Ibid., 20.
72 ibid., 20-21.

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1974] UNILATERAL DENUNCIATION OF TREATIES 67

to be followed for invoking changed circumstances and procedures for set,

tlement of disputes under Articles 65, 66 and the Annex to the 1969 Vienna
Convention. This might have raised difficulties as to whether these par-
ticular provisions were applicable as customary international law pending
the entry into force of the Vienna Convention, or even as to whether they
purported to confer a compulsory "power to determine" on the Court.

The Court found it unnecessary to examine these questions and ob-

served that, in the present case, the 1961 Exchange of Notes already pro-
vided "the procedural complement to the doctrine of changed circumstances"
by establishing the Court's jurisdiction:

Furthermore, any question as to the jurisdiction of the Court, deriving

from an alleged lapse through changed circumstances, is resolvable
through the accepted judicial principle enshrined in Article 36, para-
graph 6, of the Court's Statute, which provides that "in the event of
a dispute as to whether the Court has jurisdiction, the matter shall be
settled by the decision of the Court."... This it has now done with
binding force.73

By a vote of 14 to 1, the Court found that it had jurisdiction to deal

with the merits of the dispute.

The cases discussed above suggest certain conclusions. While uphold-

ing the right of states composing an international supervisory organ col-
lectively to terminate a treaty for material breach (Namibia), the Court
rejected claims by individual states of a unilateral right of denunciation
of jurisdictional treaties on grounds of breach, duress, changed condi-
tions, or the nature of the treaty (Jurisdiction of the ICAO Council; Ice-
land Fisheries Jurisdiction). In so doing, the Court cited and applied the
applicable provisions of Articles 52, 60, and 62 of the Vienna Convention
on the Law of Treaties which it regarded, in general, as codifying existing
customary international law.
The fact that in the ICAO Council and Iceland Fisheries cases the Court
was pronouncing upon treaties containing jurisdictional clauses agreed to
by the parties was decisive on the point of jurisdiction; but the larger
implications of these decisions should not be overlooked. In the ICAO
Council case definite limits were placed by the Court on the asserted
claim of a right of unilateral denunciation of treaties under general prin-
ciples of international law which purportedly did not involve the applica-
tion of the treaty itself: the Court held that the right asserted was, in any
case, insufficient to defeat jurisdiction by terminating jurisdictional treatie
and that, far from permitting the treaty to be disregarded as no longer in
force, the alleged right clearly involved the interpretation and application
of the treaty. A further limitation may be implied where the Court, in
78 Ibid., 21-22.

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68 T AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 68

the Iceland Fisheries cases, found it unnecessary to examine the claim that
jurisdictional treaties, by their very nature, are subject to unilateral de-
nunciation in the absence of express provisions regarding their duration,
although a more decisive disposal of such a contention might appropriately
have been formulated by the Court.
It should also be noted that in the Iceland Fisheries cases, the Court,
while recognizing the rules set forth in the Vienna Convention and in
customary international law with regard to denunciation of treaties for
duress or changed conditions, found that the rights were surrounded in
each case by substantive conditions limiting their application. The con-
tentions of Iceland were rejected not because the Court refused to recog-
nize the rules invoked, but because the Icelandic claims failed to meet the
conditions and limitations which were an intrinsic part of the rules and
essential for their application.
In this connection, it was not the procedural provisions of the Vienna
Convention which the Court considered applicable; but its concern with
procedures for dealing with unilateral claims to terminate treaties is clear.
For example, the Court regarded what it termed "the procedural comple-
ment to the doctrine of changed circumstances" as an essential part of the
doctrine. Similarly, with regard to claims of a unilateral right of denuncia-
tion of treaties for breach or duress, t-he Court was happy to find applica-
ble procedural provisions pending the eventual availability of those set
forth in the Vienna Convention.
One may conclude that, with the exception of its Namibia aberration,
the Court's consideration of the Vienna Convention on the Law of Treaties
has been helpful in furthering the consolidation of the law against unilateral
denunciation of international agreements without accountability therefor.

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