REBUS SIC STANDIBUS: AN ANALYSIS

Lakshana Radhakrishnan

Rebus sic standibus doctrine permits the unilateral termination of a treaty in certain exceptional situations when there is a fundamental change in the circumstances that radically transforms the extent of the obligation to be performed[i] so as to change the ‘essential basis’[ii] for the consent of the parties. The doctrine can be sourced from Conventional and Customary International law and its application by International Tribunals makes for an interesting analysis.

 

Art. 62 of Vienna Convention

Rebus sic standibus is enshrined in Art.62 of the Vienna Convention on Law of Treaties [“VCLT”] that provides in a negative language that the unexpected fundamental change in circumstances that prevail at the time of the conclusion of the treaty may not be used as a reason to terminate or withdraw from a treaty unless the following conditions are satisfied:

[a] There exists certain circumstances forming an important base for the agreement of the parties to be bound by the treaty.

[b] A radical change occurs in the scope of the treaty obligations which must be implemented in the future.

[c] The fundamental change is not be imputable to any breach by the party invoking the doctrine.

[d] The doctrine is not invoked to terminate or withdraw from a treaty establishing a boundary.

The International Law Commission commentary captures the essence of these requirements by saying that the unexpected fundamental change must occur to certain circumstances that constituted the basis of compromise to comply with the treaty and the change in circumstances must result in a radical change to the enforced commitments in the future, by virtue of the Treaty.[iii]

Therefore, Art.62 seeks to achieves a fundamental balance between the binding force of treaties and the need to terminate or withdraw from a treaty that has become inapplicable due to radical change in circumstances that existed at the conclusion of the treaty and which formed the basis for the consent of the parties.

 

Fundamental change: a customary principle

Custom is a dynamic source of international law owing to the nature of the international legal system and its lack of centralised government organs.[iv] Unlike Conventions which generally bind only those countries party to it, customary international law is of universal application. Under Art.38 of the ICJ statute the essence of custom is that it should constitute ‘evidence of general practice accepted as law’. The Libya/Malta case delineated it further by holding that the substance of custom lies primarily in actual practice and opinio juris of States.[v]

By applying this two-fold standard, it is problematic to prove the customary nature of the fundamental change doctrine. Firstly, though the doctrine has been repeatedly invoked by States to justify the non-performance of their treaty obligations, the ICJ has never accepted its application in any case. The most significant applications of the principle can be found in Gabcikovo-Nagymaros and in Fisheries jurisdiction.

In Gabcikovo-Nagymaros, Hungary identified a number of substantial elements present at the conclusion of the treaty which it argued have fundamentally changed by the date of termination. Hungary specified profound changes of a political nature, the Project’s diminishing economic viability, progress of environmental knowledge and the development of new norms and prescriptions of international environmental law.[vi] Czechoslovakia for its part contended that none of the changes that purportedly occurred were of the type that would alter the nature of the obligation.

The ICJ refused to accept that the changes were of such a nature, either individually or collectively, that their effect would radically transform the extent of the obligations still to be performed.

“[It] must have been unforeseen; the existence of the circumstances at the time of the Treaty’s conclusion must have constituted an essential basis of the consent of the parties to be bound by the Treaty. The negative and conditional wording of Art.62 [..] is a clear indication moreover that the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases.”

In Fisheries jurisdiction, Iceland took the traditional view and argued that the change of circumstances in and around the fishing techniques must be regarded as fundamental since they ‘imperil its existence or vital development’ by causing dangers of overfishing. Germany contested the fact of change and further challenged Iceland’s claim that that technical development of fishing equipment and modern fishing techniques have made it more pressing than before to take conservation measures to prevent overfishing by pointing out that these supposed dangers are yet to materialize.[vii]

The ICJ refused to enter into the factual question but acknowledged that “Art.62 [..] may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances.”[viii]

The aforesaid observation is of great significance because it is problematic to establish the Rebus sic standibus doctrine as custom based on empirical evidence of ‘what States think and do’ owing to the fact that such practice has never been successfully applied in any International legal dispute. Hence, the plain recognition of the doctrine as reflective of custom, paves the way for its universal application as a customary principle of international law.

 

Critical Analysis: Reasons for Non-Usability

It can be seen that the application of the rebus sic standibus doctrine requires a high threshold to be satisfied. The application of the doctrine has been found to be non-viable and several reasons can be attributed to the same.

The doctrine is primarily based upon the pretext that the continuation of the same circumstances is a sine-qua-non for the implementation of treaty obligations. This premise, if reaffirmed frequently, could weaken the force of treaty obligations and it could prove to be the last nail in the coffin of international law, which is largely based on self-imposed obligations and lacks a proper sanctioning body or enforcement agency. Further, the credibility of pacta sunt servanda doctrine- enshrined in Art.26 of the VCLT- forms the essence of International law and it is imperative that it be maintained. Though Art.62 aims to strike a balance between the duty to honour treaty obligations and the right to withdraw from a treaty when there is a radical change of circumstances, any resort to the Rebus doctrine could still be seen as antagonistic to the basic essential norm of international law and practice that willfully self-imposed obligations must be respected. Therefore, fundamental change has an extremely high threshold and consequently, implementation is unfeasible.

At this juncture, it is interesting to speculate two causative factors by deliberating whether the high threshold was an unintended but an inevitable consequence or a deliberate decision of the insiders of the legal system. This query seeks to explore whether the non-application of the doctrine is an unintended but a general consequence of the inherent nature of the doctrine or a conscious decision of the legal people based on the factual situations. In the former hypothetical strand, the reason for the high threshold can be attributed to the nature of the doctrine itself and its meaning interpreted equitably to avoid perilous consequences for the International legal order. It can be argued that the high threshold was an automatic actuality resulting from the nature of the international legal system that requires the stability of self-imposed obligations to sustain it. In the latter situation, the doctrine is understood to be incompatible with the factual and legal situations that arose thus far. In this strand, the doctrine holds more hope for the future as the non-application of the doctrine is seen as a result of its non-applicability in the particular legal disputes heretofore presented before International tribunals and that time will come when a situation begs a justification by rebus sic standibus.

 

Conclusion: reconciliation of the strands

A careful consideration of the two causative strands- inherent nature of the doctrine and lack of suitable practical application- reveals that they can be conciliated into a common ground by arguing that the inherent nature of the doctrine compels the active response of the insiders of the legal system of setting a high threshold to preclude the frequent application of the doctrine. The fundamental change doctrine thus raises interesting questions, least because it has never been employed by an international adjudication body, to allow the unilateral termination of a treaty. Though the ICJ has clearly acknowledged rebus sic standibus as a valid legal justification that can be availed of in exceptional circumstances, its position on the applicability of the doctrine shall continue to remain unclear and these questions shall remain unanswered until rebus sic standibus is applied successfully in an International dispute to the justify unilateral termination of a treaty.

 

[i] Peter Malanczuk, Akehurst’s Modern Introduction to International Law 144-5 (7th ed., 1997).

[ii] Gabcikovo-Nagymaros Project case (Hungary/Slovakia) 1997 ICJ 7, p. 65 [Gabcikovo-Nagymaros] followed by the ECJ in Racke v. Hauptzollamt Mainz [1998] ECR I-3655, 3705–7.

[iii] Draft articles on the law of treaties between States and international organizations or between international organizations with commentaries, 34th sess., Yearbook of the International Law Commission, II (2), 1982.

[iv] Malcolm N. Shaw, International Law 73 (6th ed., Cambridge Univ. Press 2008).

[v] Continental Shelf case (Libya/Malta) [81 ILR 238, 81 ILR 726] ICJ Reports (1985) 13 & 29.

[vi] Gabcikovo-Nagymaros ¶¶ 95 & 104; Hungary pleaded that from being one consistent with environmental protection, the treaty had become a prescription of environmental disaster and that from being a mere ‘framework treaty’, it was made an ‘immutable norm’ by the subsequent behaviour of Czechoslovakia.

[vii] Fisheries Jurisdiction case (UK v. Iceland) ICJ Rep. 1973, ¶¶ 38 & 39 [Fisheries jurisdiction].

[viii] Fisheries jurisdiction pp. 3, 20–1.

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