Amit Singh Asst. Professor of Law, NLUJ, INDIA

DOCTRINE OF REBUS SIC STANTIBUS IN TREATY LAW

Doctrine of clausula rebus sic stantibus in Treaty Law

• Principle of customary international law- fundamental change of circumstances and in the state of facts which existed at the time the treaty was concluded may be invoked by a party to a treaty as a ground for terminating or withdrawing from it.

• ILC in its Report on the work of its 1966 (18th) Session rejected putting a requirement of an implied term or clause in the treaty-to the effect that the treaty obligations subsist only so long as the essential circumstances remain unchanged.

Doctrine contd…

• Rather, ILC preferred to base the doctrine upon grounds of equity and justice, and even to discard the word ‘rebus sic stantibus’ as carrying undesired implications.

• The doctrine remained controversial, as on the one hand, it may be termed as ‘mischievous, dangerous or notorious’ for it permits the unilateral denunciation of treaty obligations in violation of the rule of pacta sunt servanda.

Doctrine contd…

• On the other hand, doctrine may be justified as being necessary on the ground that treaty obligations must give way if these conflict with the growth, self-preservation and vital interests of a nation.

• Modern jurists accept the existence of the principle of rebus sic stantibus in international law but they confine its scope within narrow limits by regulating the conditions under which it may be invoked. This is done as there is not as yet any system of compulsory jurisdiction in international order to deal with the invocation of the doctrine (which could operate as a disrupting influence upon the binding force of obligations undertaken by states).

Article 62 VCLT, 1969

• Article 62 of VCLT embodies the rebus doctrine as follows-

Article 62 VCLT, 1969 contd…

• Para 1 of this Article invloves a combination of two tests- subjective test and objective test

1. Subjective test- that the parties to the teraty should have envisaged the continuance of the circumstances surrounding its conclusion as a desicive motivating factor in entering into the treaty

2. Objective test- that the change must be so fundamental as radically to alter the obligations of the parties.

The Article excludes reliance on mere onerousness of treaty obligations as of itself sufficient ground for a claim to be released from the treaty.

Conditions

• The rebus doctrine has, thus, been subjected to the following conditions-

1. The change must be of circumstances which existed at the time the treaty was concluded

2. The change must be fundamental 3. Change must be unforeseen by the parties at the time of

the conclusion of the treaty 4. The existence of those circumstances must have

constituted an essential basis of the consent of the parties to be bound by the treaty, and

5. The effect of change must be radically to transform the scope of obligations still to be performed under the treaty.

Notice under Articles 65-66 of VCLT

• A party invoking the ground of fundamental change must give notice under Articles 65-66 of VCLT to the other parties of its claim that the treaty has been terminated, stating its reasons, so as to set in motion the procedure laid down in these Articles. In other words there is no automatic termination of a treaty as a result of the doctrine of fundamental change.

Case Laws

• Fisheries Jurisdiction Cases (UK v. Iceland and FR of Germany v. Iceland, 1973)-

Recognizing the existence of the doctrine of rebus sic stantibus, ICJ

observed “International law admits that a fundamental change in circumstances

which determined the parties to accept a treaty, if it has resulted in a radical transformation of the extent of the obligations imposed 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 VCLT, which may in many respects be considered as a codification the existing customary law on the subject of the termination of a treaty relationship on account of change in circumstances”

This ICJ judgement, thus, puts to rest all doubts reg. application of the rebus doctrine.

Ratio of Fisheries Jurisdiction Case

• Court emphasized two features of the rebus doctrine as follows-

1. In order that a change of circumstances may give rise to a ground for invoking the termination of a treaty, it is also necessary that it should have resulted in a radical transformation of the extent of obligations still to be performed.

• The change must have increased the burden of obligations to be executed to the extent of rendering the performance something essentially different from that originally undertaken.

Ratio of Fisheries Jurisdiction Case contd…

2. The rebus doctrine does not operate so as to extinguish a treaty automatically or to allow an unchallengeable denunciation by one party. It only operates to confer a right to call for termination and, if that call is disputed, to submit the dispute to some organ or body with the power to determine whether the conditions for the operation of the doctrine are present.

The ratio of Fisheries Jurisdiction Case constitutes an affirmation by ICJ of the essential feature of Para 1 of Article 62 of VCLT. The court has unequivocally considered the principles embodied in Article 62 as codification of the existing customary law.

Para 2 of Article 62 VCLT

• Paragraph 2 of VCLT contains two exceptions to the rebus doctrine- • First exception is treaty which establishes a boundary. Boundaries

of States are imaginary lines on the surface of the earth which separate the territory of one State from that of another, or from un-appropriated territory or from an open sea. The rationale behind this exception is that boundary treaties must be regarded as an exception to the rule which might otherwise become a constant source of friction between the States parties to such treaties.

In the case concerning the Temple of Preah Vihar (Cambodia v. Thailand, 1962) ICJ stated that one of the primary object of a treaty establishing a frontier between States is to secure ‘stability and finality’.

• The second exception in para 2 is based on a well-known principle that a party cannot take advantage of its own wrong, as laid down in Chorzow Factory case.

Para 3 of Article 62 VCLT

• Para 3 of Article 62 was introduced at the instance of Canadian and Finnish proposal at the Vienna Conference to the effect that whenever a party may invoke a fundamental change of circumstances as a ground for the termination or withdrawal from a treaty, that party may equally invoke such a change as a ground for the suspension of the operation of the treaty in question.