Effect of Fundamental Change of Circumstances on Operation of Treaties

Abstract

By concluding treaty, the parties take into account various circumstances existing at given time. There is no dispute that fundamental change of circumstances existing at the time of concluding the treaty and constituting an essential basis of the consent of the parties to be bound by the treaty may entail termination or suspension of its operation. Such an approach, adopted by theory and practice, was set forth in the Vienna Convention on the Law of Treaties of 1969. However, it is very rare that the State, referring to fundamental change of circumstances as the grounds for termination (suspension) of the treaty, does not meet the objections of the other party (parties) to stop or suspend the operation of such treaty on these grounds. This is explained primarily by the fact that Art. 62 of the said Convention, which contains the rule on the effect of fundamental change of circumstances on the operation of treaties, does not provide for clear criteria to determine whether the circumstances to which the party to the treaty refers to are indeed a substantial ground for the consent of the parties. Therefore, it is necessary to develop such criteria in order to avoid disputes related to unreasonable references to fundamental change of circumstances.