Fundamental Change in International Law

2021 ◽  
pp. 152-201
Keyword(s):  
International Law ◽  
Fundamental Change

Case Analysis: The Gabčíkovo-Nagymaros Case: The Law of Treaties

1998 ◽  
Vol 11 (2) ◽  
pp. 321-344 ◽  
Author(s):  
Malgosia Fitzmaurice
Keyword(s):  
International Law ◽  
Legal Status ◽  
Case Analysis ◽  
Vienna Convention ◽  
Fundamental Change ◽  
Unilateral Termination ◽  
The Subject ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The subject-matter of this article are the issues of treaty law as expounded in the Judgment in the Gabčíkovo-Nagymaros case. The following problems are discussed: unilateral suspension and abandonment of obligations deriving from the binding treaty; the principle of fundamental change of circumstances; unilateral termination of a treaty; applicability of the 1969 Vienna Convention on the Law of Treaties in this case; legal status of so-called ‘provisional solution’; impossibility of performance and material breach of treaty; the application of the principle of ‘approximate application’; and the principle pacta sunt servanda. The issues arc discussed at the background of the Drafts of the International Law Commission.

The Impact of Climate Change on States

2021 ◽  
Vol 23 (2-3) ◽  
pp. 115-132
Author(s):  
Łukasz Kułaga
Keyword(s):  
Climate Change ◽  
International Law ◽  
Sea Level Rise ◽  
Sea Level ◽  
The State ◽  
Fundamental Change ◽  
Sea Levels ◽  
Impact Of Climate Change ◽  
Potential Impact ◽  
The Impact

Abstract The increase in sea levels, as a result of climate change in territorial aspect will have a potential impact on two major issues – maritime zones and land territory. The latter goes into the heart of the theory of the state in international law as it requires us to confront the problem of complete and permanent disappearance of a State territory. When studying these processes, one should take into account the fundamental lack of appropriate precedents and analogies in international law, especially in the context of the extinction of the state, which could be used for guidance in this respect. The article analyses sea level rise impact on baselines and agreed maritime boundaries (in particular taking into account fundamental change of circumstances rule). Furthermore, the issue of submergence of the entire territory of a State is discussed taking into account the presumption of statehood, past examples of extinction of states and the importance of recognition in this respect.

COVID-19 și posibilele apărări în dreptul internațional: ar putea forța majoră și schimbarea fundamentetnală a circumstanțelor să justifice neexecutarea obligațiilor internaționale?

2020 ◽  
Vol 2020 (2020) ◽  
pp. 186-202
Author(s):  
Ion GÂLEA ◽  
Keyword(s):  
Public Opinion ◽  
International Law ◽  
Common Sense ◽  
Prima Facie ◽  
Fundamental Change ◽  
The Public ◽  
Force Majeure ◽  
International Obligations ◽  
International Responsibility ◽  
The Law

The study examines possible defences that States could invoke in order to justify or excuse measures designed to respond to the COVID-19 crisis, which prima facie might not be in conformity with certain international obligations. The study examines only defences available in general international law – beside certain exceptions that might be provided by the clauses of the respective treaties. Two grounds for suspending international obligations, stemming from the law of treaties – impossibility of performance and rebus sic stantibus – and three circumstances precluding wrongfulness, stemming from the law of international responsibility – force majeure, distress and state of necessity – are subject to examination. The study argues that, even if “common sense” might draw the public opinion towards the plausibility of invoking force majeure, impossibility of performance or fundamental change of circumstances, such a conclusion does not reflect general international law. In reality, the “best candidate” as a justification or excuse is distress, while the “second best candidate” might be represented by the state of necessity.

The Construction of the Rebus Sic Stantibus Clause in International LawException, Rule, or Remote Spectator?

2020 ◽  
pp. 274-284
Author(s):  
Robert Kolb
Keyword(s):  
International Law ◽  
Legal Order ◽  
Vienna Convention ◽  
Private Law ◽  
Fundamental Change ◽  
The Third ◽  
First Case ◽  
The Law

This chapter attempts to shed some light on the rule-exception scheme through the lens of the doctrine of fundamental change of circumstances in international law. In classical international law, the doctrine was considered either as non-existent, or under the guise of private law analogies or specially construed for the purposes of international law. The extent of the ‘exception’ to the ordinary law wrought by the clause was different in the context of these three versions: nought in the first case, related to specific treaties in the second, related to the entire legal order in the third. With the Vienna Convention on the Law of Treaties (VCLT) codification of 1969, the reach of the doctrine was reduced to an extremely narrowly tailored treaty-exception. Since then, the doctrine has rarely been invoked—even more rarely with success—in international litigation. The inroad of that exception has thus been progressively narrowed, if not extinguished.

A. Racke GmbH & Co. v. Hauptzollamt Mainz

1999 ◽  
Vol 93 (1) ◽  
pp. 205-209 ◽  
Author(s):  
Bernard H. Oxman ◽  
Juliane Kokott ◽  
Frank Hoffmeister
Keyword(s):  
Federal Republic ◽  
International Law ◽  
European Economic Community ◽  
Fundamental Change ◽  
Economic Community ◽  
Cooperation Agreement ◽  
Customary International Law ◽  
Court Of Justice ◽  
Council Regulation ◽  
L 62

A. Racke GMBH & Co. v. Hauptzollamt Mainz. Case C-l 62/96.Court of Justice of the European Communities, June 16, 1998.The German Bundesfinanzhof (Federal Finance Court) asked the Court of Justice of the European Communities whether an EEC Council regulation suspending the trade concessions provided for by the 1980 Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia was valid. The Court answered in the affirmative, holding that, in adopting the regulation, the Council had not acted contrary to the rules of customary international law concerning termination and suspension of treaty relations because of a fundamental change of circumstances.

The International Law Commission's Draft Articles on the Effects of Armed Conflicts on Treaties: Evaluating the Applicability of Impossibility of Performance and Fundamental Change

2013 ◽  
Vol 3 (1) ◽  
pp. 51-76
Author(s):  
Benny TAN Zhi Peng
Keyword(s):  
International Law ◽  
Armed Conflicts ◽  
Controversial Issue ◽  
Vienna Convention ◽  
Fundamental Change ◽  
Insufficient Attention ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The International Law Commission recently completed its work on the controversial issue of the effects of armed conflicts on treaties, culminating in the adoption of a set of eighteen draft articles and an annex. The Commission's efforts are nothing short of commendable, but this article argues that insufficient attention has been paid to the role of supervening impossibility of performance and fundamental change of circumstances in determining the effects of armed conflicts on treaties. Although both doctrines may in fact appropriately apply in the context of armed conflicts, the mere referencing of them in the adopted draft articles gives rise to several problems. In particular, the two doctrines were codified by the 1969 Vienna Convention on the Law of Treaties without their application to armed conflicts in mind. Some changes to the draft articles are proposed to address these difficulties.

Grotian Moments: The Concept

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 193-211
Author(s):  
Michael P. Scharf
Keyword(s):  
International Law ◽  
Tipping Points ◽  
Fundamental Change ◽  
Paradigm Shifts ◽  
World War ◽  
Customary International Law ◽  
Rapid Formation

Abstract During times of fundamental change, customary international law can form quite abruptly. Scholars have begun to call the paradigm shifts and tipping points that lead to rapid formation of new rules of customary international law ‘Grotian Moments.’ This chapter introduces the concept, explains its appellation, provides historic examples of its application since World War ii, examines its usefulness, and addresses some of the critiques that have been leveled at the notion of accelerated formation of customary international law.

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