Helga Law Journal - 01.01.2021, Qupperneq 70

Helga Law Journal Vol. 1, 2021
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Dr. Snjólaug Árnadóttir
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onerous or ‘the value to be gained by further performance is diminished’.127 The
reference to obligations still to be performed confirms that VCLT article 62 is not
applicable to treaties that have been fully executed; there have to be obligations
that have not yet been performed or a requirement of continuing performance.128
Obligations under a maritime boundary agreement certainly entail ongoing
obligations and the ‘value to be gained by further performance’ will be affected
when there is a considerable divergence between a State‘s entitlements under
UNCLOS and rights afforded by the agreement.
Even if all the conditions of rebus sic stantibus are met, it is still unlikely that
States will be released from their obligation to respect bilateral maritime
boundaries on these grounds. First, international courts and tribunals have yet to
accept the application of the rebus sic stantibus principle in a contentious case.
Second, treaties establishing boundaries are exempt from termination under VCLT
article 62.129 This exclusion of boundary treaties may not cover all maritime
boundaries. The ICJ has suggested that treaties delimiting the continental shelf
should fall within this boundary exclusion.130 However, the fact that a line qualifies
as a boundary in some respects, does not automatically make it a boundary within
the meaning of VCLT article 62(2)(a).131 When codifying the Vienna Convention
on the Law of Treaties Between States and International Organizations or Between
International Organizations, the ILC stated that territorial sea boundaries were
‘true limit[s] of the territory of the State’. It further explained that even if other
maritime boundaries could also be categorized as ‘true boundaries’, they might not
fall within the boundary exclusion of VCLT article 62(2)(a).132 This discussion was
inconclusive but suggests that territorial sea boundaries may be exempt from
termination on the basis of fundamental changes, while other maritime boundaries
(exclusive economic zone, continental shelf and single purpose boundaries) are
not. At any rate, States can prevent termination of bilateral maritime boundaries
on these grounds by taking foreseeable changes to coastal geography into account
in the delimitation process and explicitly referring to those changes in their
agreements.
Finally, the pacta tertiis principle provides that treaties cannot create obligations
or rights for third States without their consent.133 This is consonant to Guiding
127 Thomas Giegerich, ‘Article 62. Fundamental Change of Circumstances’, in Oliver Dörr and Kirsten
Schmalenbach (eds) Vienna Convention on the Law of Treaties: A Commentary (Springer 2012)1067, 1089,
referring to Yearbook of the ILC, 1957, vol II (n 126) 60, para 151.
128 ILC, ‘Fifth Report on the Law of Treaties by Sir Humphrey Waldock, Special Rapporteur’ (15
November 1965-18 January 1966) UN Doc A/CN.4/183 and Add.1-4, 43.
129 See paragraph 2(a).
130 Aegean Sea Continental Shelf (Greece v Turkey) (Jurisdiction) [1978] ICJ Rep 3, para 85.
131 ILC, ‘Report of the Commission to the General Assembly on the work of the thirty-fourth session’
(3 May-23 July 1982) UN Doc A/CN.4/SER.A/1982/Add.l (Part 2) 60-61. See also Thomas Giegerich
(n 127) 1093.
132 UN Doc A/CN.4/SER.A/1982/Add.l (Part 2) (n 131) 61.
133 VCLT article 34.
obligations under a treaty have become ‘unduly burdensome’.116 Similarly,
decisions of the ICJ may be revised in light of new facts or subsequent
developments.117 Furthermore, maritime boundaries may be set aside when subject
to the pacta tertiis principle, i.e., when they violate the rights of third States.118 These
possibilities may be available in exceptional circumstances but the general rule
remains that bilateral boundaries are permanently binding.
Rebus sic stantibus provides that an unforeseen fundamental change of
circumstance can be invoked as grounds for suspending, withdrawing from or
terminating a treaty if it affects the essential basis of the treaty and radically
transforms obligations still to be performed.119 This customary rule has been
codified in article 62 of the Vienna Convention on the Law of Treaties (VCLT).
The VCLT is limited to treaties between States120 that are in written form and
governed by international law.121 Yet, the principle may also affect judicial
decisions because res judicata only prevents the revision of boundaries insofar as
the same relief is sought on the grounds advanced in previous proceedings
between the same parties.122
A fundamental change under article 62 must relate to the facts that led both
parties to give their consent to be bound by the treaty and be extensive enough to
alter the treaty’s raison d’être.123 Environmental changes affecting coastal geography
can potentially qualify as such124 and affect the essential basis of maritime
boundary treaties, given the importance of coastal geography to the delimitation
process. However, changes cannot be invoked to terminate a treaty if they were
foreseen by the parties when the treaty was concluded,125 i.e. anticipated in any
way, either expressly or by implied terms.126 VCLT article 62(1)(b) provides that
the effect of a change must be to radically transform the extent of obligations still
to be performed under a treaty. An obligation is transformed when it is made more
116 See Eric Stein and Dominique Carreau, ‘Law and Peaceful Change in a Subsystem: “Withdrawal”
of France from the North Atlantic Treaty Organisation’ (1968) 62 American Journal of International
Law 577, 617.
117 See article 61 of the Statute of the ICJ.
118 See VCLT article 34.
119 See VCLT article 62(1).
120 VCLT article 1.
121 VCLT article 2(1)(a).
122 Andreas Kulick, ‘Article 60 ICJ Statute, Interpretation Proceedings, and the Competing Concepts
of Res Judicata’ (2015) 28 (1) Leiden Journal of International Law 73, 74.
123 Paul Reuter, Introduction to the Law of Treaties (Kegan Paul International 1995) 189.
124 See Jeremy Waldron, ‘F.W. Guest Memorial Lecture: August 22nd, 2005: The Half-Life of Treaties:
Waitangi, Rebus Sic Stantibus’ (2006) 11 Otago Law Review 161, 170.
125 VCLT article 62(1).
126 ILC, ‘Second Report on the Law of Treaties, by Mr GG Fitzmaurice, Special Rapporteur’ (15 March
1957) UN Doc A/CN.4/107, 33.