Anthony Aust. Handbook of International Law
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where ratification is not required, whether the amendment can be adopted by tacit agreement;
and
whether the amendment binds those parties that have not accepted it (the crucial issue).
Under Article XIII of the FAO Agreement to Promote Compliance with International Conservation
and Management Measures by Fishing Vessels on the High Seas 1993 (Compliance Agreement),
160
a proposed amendment requires the approval of the FAO Conference by two-thirds of the votes cast,
and comes into force for all after acceptance by two thirds of the parties.
161
However, if an
amendment involves new obligations for parties (which is assumed unless the Conference decides
otherwise by consensus) it comes into force for each party only when it has been accepted by it. The
subject matter of the Agreement is not only important, but also contentious. The amendment
procedure reflects the reluctance of states to be bound by amendments they have not agreed to. To be
fully effective therefore, any amendments are likely to need at least approval by consensus.
Contrast the Compliance Agreement procedure with Article of the Comprehensive Nuclear
Test-Ban Treaty 1996.
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Any party can propose amendments. If a majority of the parties support
consideration of the proposal, a conference must be held. An amendment is adopted by the vote of a
simple majority of the parties at the conference, provided no party casts a negative vote. The
amendment enters into force for all parties thirty days after all those parties that voted for the
amendment have deposited instruments of ratification.
163
Duration and termination
Denunciation is a unilateral act by which a party seeks to terminate its participation in a treaty.
Lawful denunciation of a bilateral treaty terminates it. Although denunciation is also used
sometimes in relation to a multilateral treaty, the better term is withdrawal, since if a party leaves a
multilateral treaty that will not normally result in its termination.
160. ILM (1994) 968; B&B Docs. 645.
161. For the FAO acceptance procedure, see Aust, p. 87.
162. ILM (1996) 1443. Article is modelled on Article of the Chemical Weapons Convention 1993,
1974 UNTS 317 (No. 33757); ILM (1993) 800; UKTS (1997) 45.
163. See further, Aust, pp. 218–9.
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Express provisions
These days, most treaties contain specific and comprehensive provisions on duration and termination
or withdrawal. There are a great variety.
164
Indefinite duration with unconditional right to terminate
Many bilateral treaties make no provision for duration but include a termination clause that provides
that either party may terminate the treaty by means of written notice to the other, termination taking
effect on the expiry of a specified period.
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Most multilateral treaties of unlimited duration will
allow a party an unconditional right to withdraw. A UN treaty will usually provide that any party
may withdraw by giving twelve months’ written notice to the UN Secretary-General.
Indefinite duration with conditional right to withdraw
Article of the Chemical Weapons Convention 1993 states that the Convention shall be of
unlimited duration,
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but provides for withdrawal, albeit subject to special conditions based on
those in the Nuclear Non-Proliferation Treaty 1968 (NPT):
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Each State Party shall, in exercising its national sovereignty, have the right to withdraw from this
Convention if it decides that extraordinary events, related to the subject matter of this Convention, have
jeopardised the supreme interests of its country. It shall give notice of such withdrawal 90 days in
advance to all other States Parties, the Executive Council, the Depositary and the United Nations Security
Council. Such notice shall include a statement of the extraordinary events it regards as having
jeopardised its supreme interests.
(Emphasis added)
Given that a treaty must be performed in good faith,
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even though the above provision gives the
withdrawing party a discretion, it must nevertheless have grounds for its decision. Furthermore, the
extraordinary events must be ‘related to the subject matter’ of the Convention. The need
164. See also Blix and Emerson, The Treaty-Maker’s Handbook, Dobbs Ferry, NY, 1973, pp. 96–113.
165. UK–US Treaty on Mutual Legal Assistance in Criminal Matters 1994/1997, 1967 UNTS 102 (No.
33632) and 2114 UNTS 392 (No. 36773); UKTS (1997) 14 and UKTS (2002) 8. For the special provision
found in air services agreements, see Aust, pp. 225–6.
166. 1974 UNTS 317 (No. 33757); ILM (1993) 804; UKTS (1997) 45.
167. 729 UNTS 161 (No. 10485); ILM (1968) 809; UKTS (1970) 88; TIAS 6839 (Article (1)).
168. See p. 79 above.
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for these elements is reinforced by the requirement to state what are the extraordinary events.
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Duration with conditions on termination
Conventions adopted within the International Labour Organization often require a lengthy period of
notice and impose strict conditions on when notice can be given, for example that a member state
cannot denounce until the convention has been in force for ten years, and, if it does not then
denounce it within twelve months, it may not then denounce it until the expiration of a further ten-
year period, and so on.
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Comprehensive clauses
When the parties are not sure how long they envisage the treaty lasting, they will often include a
clause which provides for an initial term which can be extended, either expressly or tacitly, as well
as for withdrawal. Such flexible provisions enable the parties to keep their options open, and are
normally found in bilateral treaties. The Slovenia–United Kingdom Cultural Co-operation
Agreement 1996 provides that it
shall remain in force for a period of five years and thereafter shall remain in force until the expiry of six
months from the date on which either Contracting Party shall have given written notice of termination to
the other through the diplomatic channel.
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(Emphasis added)
Termination or withdrawal by consent
A treaty may of course be terminated, or a party withdraw from it, at any time with the consent of all
the other parties (Article 54(b)). This can be done even if the treaty provides for a minimum period
of notice.
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No provision for termination or withdrawal
Some general law-making conventions are naturally silent as to their duration, but have provisions
for denunciation or withdrawal. One cannot
169. See Aust, pp. 227–8 on North Korea’s first attempt to withdraw from the NPT. It announced its final
withdrawal on 10 January 2003.
170. See ILM (1987) 633–67.
171. UKTS (1996) 14, Article 18. For a discussion of the meaning and effect of ‘thereafter’, see Aust, pp.
229–30.
172. See the 1996 Exchange of Notes between Armenia and the United Kingdom to terminate the Soviet
Union–United Kingdom Visa Abolition Agreement 1964, UKTS (1998) 57.
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imply a right of denunciation or withdrawal unless it is established that the parties intended to admit
the possibility of denunciation or withdrawal or a right of denunciation or withdrawal may be
implied by the nature of the treaty (Article 56(1)). Since it is now very common to include
provisions on withdrawal, when a treaty is silent it may be that much harder for a party to establish
the grounds for the exception. The same may apply in the case of some codification conventions. In
any event, in many cases the rules of such conventions reflect, or have become accepted as,
customary law, and so withdrawal may make little or no legal difference.
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A party will not be able to withdraw from a treaty transferring territory or establishing a boundary
(cf. Article 62(2)(a)).
174
Other treaties that are unlikely to be capable of withdrawal are treaties of
peace or disarmament, and those establishing permanent regimes, such as for the Suez Canal.
175
Most human rights treaties do not provide for withdrawal.
176
Termination or suspension for breach
177
Like the violation of any other international obligation, breach of a treaty obligation may entitle
another party to terminate or withdraw from the treaty or suspend its operation. If it causes harm to
another party, that party may have the right to take reasonable countermeasures, or to present an
international claim for compensation or other relief.
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Material breach
A ‘material’ breach of a bilateral treaty by one party entitles the other to invoke the breach as a
ground for terminating the treaty or suspending its operation in whole or in part (Article 60(1)). The
material breach must be of the treaty itself, not of another treaty or of rules of general international
law.
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Multilateral treaties pose different problems, since a material breach by one party may not
affect all other parties, but the interests of the latter must also be taken into account.
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Determining
what is a ‘material breach’ will depend upon the circumstances of each case. Article 60(3) defines a
material breach as a repudiation of the treaty not sanctioned by the Convention; or the violation of a
provision ‘essential
173. See, p. 8 above.
174. See Aust, pp. 234 and 307.
175. See p. 363 below.
176. See the Human Rights Committee’s General Comment No. 26 (61), ILM (1995) 839.
177. See generally S. Rosenne, Breach of Treaty, Cambridge, 1985.
178. See pp. 407-27 below.
179. Gabcikovo, ICJ Reports (1997), p. 7, para. 106; 116 ILR 1.
180. See Article 60(2); and Aust, pp. 237–8.
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to the accomplishment of the object and purpose of the treaty’.
181
This last quoted phrase is not the
same as a ‘fundamental’ breach (see below). It can therefore be a breach of an important ancillary
provision. If a party to the Chemical Weapons Convention (CWC) obstructs the conduct on its
territory of international inspections to verify that it is complying with the CWC, this could well be a
material breach since the inspection regime is an essential means of monitoring the effectiveness of
the CWC.
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Fundamental breach
A fundamental breach is one that goes to the root of a treaty. Although it is not mentioned expressly
in the Convention, the concept is contained within that of a material breach. On 1 September 1983,
Soviet forces unlawfully shot down Korean Airlines flight 007. Several states with air services
agreements with the Soviet Union unilaterally suspended them, for varying periods and with
immediate effect, to prevent Aeroflot from landing in their territory. They were entitled to do so
because the Soviet action undermined the fundamental basis of all air services agreements: that each
party will ensure the safety of the others’ civil aircraft.
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Supervening impossibility of performance
If an object which is indispensable for the execution of a treaty disappears permanently or is
destroyed, thereby making performance of the treaty impossible, a party can invoke this as a ground
for terminating or withdrawing from the treaty (Article 61(1)). There are few precedents. In
Gabcikovo, the International Court of Justice rejected this plea.
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Possible examples of
impossibility of performance are the submergence of an island (which global warming may now
make a practical possibility) or the permanent drying-up of a river.
Fundamental change of circumstances (rebus sic stantibus)
The principle, recognised by domestic law, that a person may no longer be bound by a contract if
there has been a fundamental change in the
181. See the use of ‘material breach’ by the UNSC in e.g. UNSCR 1441 (2002), paras. 1 and 4.
182. 1974 UNTS 317 (No. 33757); ILM (1993) 800; UKTS (1997) 45.
183. See G. Richard, ‘KAL 007: The Legal Fallout’ (1983) Annals of Air and Space Law 146 at 150; K.
Chamberlain, ‘Collective Suspension of Air Services’ (1983) ICLQ 616 at 630–1.
184. ICJ Reports (1997), p. 7, paras. 102–3; ILM (1998) 162.