Termination and Suspension of Treaties

Material breach: article 60

The most important ground, and the one with the most structure.

Article 60(3), the definition. A material breach consists in (a) a repudiation of the treaty not sanctioned by the Convention, or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

So not every breach is material. A breach of an incidental provision, however irritating, does not open article 60. The provision breached must be essential to accomplishing the object or purpose, or the conduct must amount to repudiation.

Article 60(1), bilateral treaties. A material breach by one party entitles the other to invoke it as a ground for terminating the treaty or suspending its operation in whole or in part. The innocent party has the choice, and there is no automatic termination.

Article 60(2), multilateral treaties, three separate rights.

(a) The other parties by unanimous agreement may suspend in whole or in part or terminate, either between themselves and the defaulting State or as between all the parties.

(b) A party specially affected by the breach may invoke it as a ground for suspending the treaty in whole or in part in the relations between itself and the defaulting State. Note that a specially affected party gets suspension, not termination, and only against the defaulter.

(c) Any party other than the defaulting State may invoke the breach as a ground for suspending with respect to itself if the treaty is of such a character that a material breach radically changes the position of every party with respect to further performance. This covers the integral treaty, the disarmament convention being the standard example, where one party's breach undermines the whole scheme.

Article 60(4). All of this is without prejudice to any provision in the treaty applicable in the event of a breach.

Article 60(5), the humanitarian exception. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular provisions prohibiting any form of reprisals against persons protected by such treaties.

Article 60(5) is the answer to a favourite examination question. A State cannot answer another State's atrocities by committing its own. Humanitarian obligations are not synallagmatic; they are owed to the persons protected, and a breach by one side does not release the other.

Supervening impossibility: article 61

A party may invoke impossibility of performance as a ground for terminating or withdrawing if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending.

Article 61(2). Impossibility may not be invoked if it results from a breach by that party of an obligation under the treaty or of any other international obligation owed to any other party.

The article is narrower than the word suggests. An object indispensable for execution: an island that submerges, a dam that is destroyed, a river that dries up. Economic impossibility is not within it. Inability to pay is not the disappearance of an object.

Fundamental change of circumstances: article 62

The doctrine textbooks call rebus sic stantibus, and the Convention states it negatively on purpose.

Article 62(1). A fundamental change of circumstances which has occurred with regard to those existing at the time of conclusion, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound; and

(b) the effect of the change is radically to transform the extent of obligations still to be performed.

Four cumulative requirements, then: fundamental, unforeseen, essential basis of consent, and radical transformation of obligations still to be performed. The drafting as a prohibition with exceptions is deliberate: the Commission feared that a positively stated doctrine would be used to escape inconvenient treaties.

Article 62(2), two absolute bars.

(a) The change may not be invoked if the treaty establishes a boundary. That protects the stability of frontiers, and it is the same policy as uti possidetis in [State Succession].

(b) It may not be invoked if the change results from a breach by the party invoking it of an obligation under the treaty or of any other international obligation owed to another party.

Article 62(3). A party entitled to invoke the change to terminate may also invoke it to suspend.

Article 63. The severance of diplomatic or consular relations does not affect the legal relations established by a treaty except insofar as the existence of such relations is indispensable for the application of the treaty. War and rupture do not end treaties as a class.

Article 64. A new peremptory norm makes any conflicting existing treaty become void and terminate, as [Validity of Treaties, and Jus Cogens] sets out.

Gabcikovo-Nagymaros Project (Hungary/Slovakia), ICJ Reports 1997, p. 7

Facts. Hungary and Czechoslovakia concluded a treaty on 16 September 1977 for a system of locks on the Danube at Gabcikovo and Nagymaros. In 1989 Hungary suspended and then abandoned the works for which the treaty made it responsible, citing ecological dangers. Czechoslovakia prepared an alternative, Variant C, from November 1991 and put it into operation in October 1992 by unilaterally damming and diverting the Danube on its own territory. Hungary notified termination of the 1977 Treaty on 19 May 1992. Czechoslovakia was later dissolved and Slovakia claimed to succeed to the Treaty. The parties submitted the dispute by special agreement.

Held. Hungary was not entitled to suspend and abandon the works in 1989. Czechoslovakia was entitled to proceed to the provisional solution in November 1991 but not to put it into operation in October 1992. Hungary's notification of 19 May 1992 did not terminate the Treaty, which remained in force. Slovakia became a party as successor to Czechoslovakia.

On necessity. A state of necessity is a ground recognised by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation, but it can be accepted only on an exceptional basis, and the conditions in the International Law Commission's draft article reflect custom: an essential interest threatened by a grave and imminent peril, the act being the only means of safeguarding it, and the act not seriously impairing an essential interest of the State towards which the obligation exists.

The sentence that belongs in this chapter. Even where a state of necessity is found, it is not a ground for terminating a treaty; it may only exonerate a State from responsibility for failing to implement one. Necessity is a defence to responsibility, not a mode of termination, and confusing the two is a standard examination error.

On Variant C. The diversion of the Danube was not a lawful countermeasure because it was not proportionate, and a duty to mitigate damage might found a calculation of damages but could not justify an otherwise wrongful act.

On the treaty grounds. Impossibility of performance under article 61 and fundamental change of circumstances under article 62 were rejected on the facts.

On the environment. Newly developed norms of environmental law were relevant to the implementation of the Treaty, and the parties must negotiate in good faith and look afresh at the environmental effects. That is article 31(3)(c) at work: the Treaty was read alongside the parties' other obligations rather than being terminated because of them.

Why the case matters here. It is the demonstration that the Convention's grounds for escaping a treaty are as narrow as their drafting suggests. A party facing genuine ecological concern, a dissolved counterparty and twenty years of changed circumstances still could not terminate.

Consequences: articles 70 and 72

Article 70(1). Unless the treaty otherwise provides or the parties agree, termination (a) releases the parties from any obligation further to perform, and (b) does not affect any right, obligation or legal situation created through the execution of the treaty prior to its termination.

So termination looks forward. What has already accrued stands: a boundary already delimited, a payment already due, a title already transferred.

Article 70(2). On denunciation or withdrawal from a multilateral treaty, paragraph 1 applies between that State and each other party from the date the withdrawal takes effect.

Article 72, suspension. Suspension releases the parties from the obligation to perform during the period of suspension and does not otherwise affect the legal relations established by the treaty; during suspension the parties must refrain from acts tending to obstruct the resumption of the operation of the treaty.

And article 43 governs the residue. Termination does not impair any obligation in the treaty to which the State is subject under international law independently of it.

A worked example

Treaty RR binds States AA, BB, CC and DD to limit weapons production and provides for verification inspections, but says nothing about termination or withdrawal. State AA refuses all inspections and announces it will produce as it pleases. State BB, which shares a border with AA, wants out. State CC wants to leave for unrelated reasons. State DD says its economy can no longer bear the treaty's cost.

Is State AA's conduct a material breach? Article 60(3): a repudiation not sanctioned by the Convention, or the violation of a provision essential to the accomplishment of the object or purpose. Refusing all inspections and announcing free production is both.

What may State BB do? Article 60(2)(b) as a specially affected party: suspend in whole or in part, and only as between itself and State AA. Article 60(2)(c) may also help, since a weapons limitation treaty is of the character in which a material breach radically changes every party's position, and that allows suspension with respect to itself. Termination needs the unanimous agreement of the other parties under article 60(2)(a).

May State CC simply withdraw? Article 56(1): a treaty silent on termination is not subject to withdrawal unless the parties intended to admit the possibility or a right may be implied by the nature of the treaty. Disarmament treaties are ordinarily thought to admit withdrawal only where they say so, and if a right is found, article 56(2) requires twelve months' notice.

State DD's economic plea. Article 61 is not available: economic burden is not the permanent disappearance or destruction of an object indispensable for execution. Article 62 requires a fundamental change, unforeseen, forming an essential basis of consent, radically transforming obligations still to be performed, and general economic difficulty rarely satisfies all four. Gabcikovo shows how strictly the Court reads them.

Change one fact: the treaty also protects prisoners of war. Article 60(5) removes those provisions from paragraphs 1 to 3 altogether, since they relate to the protection of the human person in a treaty of humanitarian character, so no party may suspend them in answer to State AA's breach.

Distinctions table

What it does NOT mean

Not every breach opens article 60. It must be material as defined in article 60(3).

A material breach does not terminate automatically. It entitles the innocent party to invoke the breach, and the procedure in article 65 still applies.

A specially affected party cannot terminate. Article 60(2)(b) gives it suspension against the defaulter only.

Humanitarian provisions are immune. Article 60(5) excludes them from the breach machinery.

Impossibility is not economic hardship. Article 61 requires the permanent disappearance or destruction of an indispensable object.

Fundamental change never touches a boundary treaty. Article 62(2)(a) is absolute.

Necessity does not terminate a treaty. Gabcikovo: it may exonerate a State from responsibility for failing to implement one.

A State cannot rely on its own breach. Articles 61(2) and 62(2)(b) both bar it.

Limits and criticism

Article 62 is drafted to fail, which is what its negative formulation intends, and the result is a doctrine with no successful invocation before the Court to its name. Whether a rule that never operates is a rule at all is a fair question, and the answer is that its value is deterrent.

The multilateral breach machinery is impractical. Terminating under article 60(2)(a) needs unanimity among the non-defaulting parties, which in a convention with a hundred parties is unattainable, so the real remedies are suspension and State responsibility.

Article 61 has no room for economic impossibility, and States facing genuine incapacity are left to article 62 or to the law of responsibility rather than to the law of treaties.

Article 56 leaves the silent treaty uncertain. Whether a right of withdrawal is implied by the nature of a treaty has been contested in exactly the cases where it matters most, and the twelve months' notice rule assumes an answer the article does not supply.

Quick revision

Article 54: termination by the treaty's provisions or consent of all after consultation. Article 55: falling below the entry into force number does not terminate. Article 56: a silent treaty admits withdrawal only if intended or implied by its nature, on twelve months' notice.

Article 57 and 58: suspension, generally and inter se on the article 41 conditions. Article 59: a later treaty on the same subject matter terminates the earlier if so intended or if the two cannot be applied at the same time.

Article 60: material breach is repudiation or violation of a provision essential to the object or purpose. Bilateral, the other party may terminate or suspend. Multilateral: unanimous agreement of the others to terminate or suspend; a specially affected party may suspend against the defaulter; any party may suspend as to itself in an integral treaty. Article 60(5): humanitarian provisions excluded.

Article 61: permanent disappearance or destruction of an indispensable object; temporary impossibility means suspension; not available to a party in breach.

Article 62: change must be fundamental, unforeseen, an essential basis of consent, and radically transform obligations still to be performed. Never for a boundary treaty, never for a party's own breach.

Gabcikovo, ICJ Reports 1997, p. 7: Hungary's 1992 notification did not terminate the Treaty; necessity is not a ground for terminating a treaty, only exoneration from responsibility; Variant C was not proportionate; articles 61 and 62 rejected on the facts.

Article 70: releases from further performance; accrued rights and situations stand. Article 72: suspension releases during the period, with a duty not to obstruct resumption.

Test yourself

1. What is a material breach and what does it entitle the innocent party to do?

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 to the accomplishment of the object or purpose of the treaty. In a bilateral treaty, article 60(1) entitles the other party to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. In a multilateral treaty, article 60(2) gives three distinct rights: the other parties by unanimous agreement may suspend or terminate, either as against the defaulter or between all the parties; a party specially affected may suspend as between itself and the defaulter; and any party may suspend with respect to itself where the treaty is of such a character that a material breach by one party radically changes the position of every party.

2. Why does article 60(5) exist?

Because obligations protecting the human person are not owed to the other State as a bargain but to the persons protected, so the ordinary logic of reciprocity does not apply. The paragraph provides that paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected. Without it, a State could answer another's atrocities by committing its own and call it suspension for material breach, which would defeat the whole object of humanitarian law.

3. State the conditions for invoking fundamental change of circumstances.

Article 62(1) states them as an exception to a prohibition, so all must be satisfied. The change must be fundamental, must have occurred with regard to the circumstances existing at the time of conclusion, and must not have been foreseen by the parties. The existence of those circumstances must have constituted an essential basis of the consent of the parties to be bound. And the effect of the change must be radically to transform the extent of obligations still to be performed. Article 62(2) then imposes two absolute bars: the change may never be invoked against a treaty establishing a boundary, nor by a party whose own breach of the treaty or of another international obligation owed to another party produced the change.

4. Distinguish impossibility of performance from fundamental change of circumstances.

Article 61 requires the permanent disappearance or destruction of an object indispensable for the execution of the treaty, and if the impossibility is only temporary it grounds suspension alone. It is about the physical or legal object of performance. Article 62 requires no destruction of anything, but a fundamental and unforeseen change in the circumstances that were an essential basis of consent, whose effect is radically to transform the obligations still to be performed. Both articles bar a party whose own breach produced the situation, and both were pleaded and rejected on the facts in the Gabcikovo-Nagymaros Project.

5. What did the Court decide in Gabcikovo-Nagymaros about necessity and termination?

That the two must be kept apart. The Court accepted that a state of necessity is a ground recognised by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation, admitted only on an exceptional basis and subject to conditions reflecting custom: an essential interest threatened by a grave and imminent peril, the act being the only means of safeguarding it, and the act not seriously impairing an essential interest of the State towards which the obligation exists. But it held that even where a state of necessity is established it is not a ground for terminating a treaty, and may only exonerate a State from responsibility for failing to implement it. Hungary's notification of 19 May 1992 accordingly did not terminate the 1977 Treaty, which remained in force.

6. A treaty says nothing about withdrawal. May a party leave?

Only in the two cases in article 56(1): where it is established that the parties intended to admit the possibility of denunciation or withdrawal, or where a right of denunciation or withdrawal may be implied by the nature of the treaty. The presumption is therefore against withdrawal. A right is more readily implied in an alliance or a commercial treaty and is not implied in a boundary or peace treaty, while the supervisory bodies of the human rights covenants have taken the view that withdrawal is not available at all. Where a right does exist under article 56(1), article 56(2) requires not less than twelve months' notice of the intention to denounce or withdraw.