Abstract
An unforeseen fundamental change of circumstances can be invoked to prompt the termination of a treaty, under the customary rule rebus sic stantibus , which is codified in Article 62 of the Vienna Convention on the Law of Treaties (VCLT). The fundamental change must affect the essential basis of the treaty and radically transform obligations still to be performed. Maritime boundaries are agreed upon in accordance with the United Nations Convention on the Law of the Sea and they delimit overlapping maritime entitlements, which are generated by coastal features. Natural occurrences can cause significant and unexpected changes in coastal geography which can affect circumstances essential to a maritime boundary treaty’s conclusion and radically alter the extent of on-going obligations. Treaties establishing boundaries cannot be subject to unilateral termination by virtue of a fundamental change of circumstances because they are excluded under Article 62(2)(a) VCLT. However, the travaux preparatoires of the International Law Commission and relevant case law suggests that the exclusion only covers treaties delimiting territorial boundaries and full sovereignty. Consequently, treaties establishing boundaries to the exclusive economic zone, exclusive fisheries zone and the continental shelf can be subject to termination due to a fundamental change of circumstances.
Highlights
All coastal States are entitled to maritime zones in the water columns surrounding their land and in the seabed extending from their coastlines, in accordance with the United Nations Convention on the Law of the Sea (UNCLOS).[1]
Treaties establishing boundaries cannot be subject to unilateral termination by virtue of a fundamental change of circumstances because they are excluded under Article 62(2)(a) Vienna Convention on the Law of Treaties (VCLT)
The change should relate to circumstances existing at the time of the conclusion of the treaty; the continuance of those circumstances should have been anticipated by both parties and have motivated them to consent to the treaty, or, at least, the specific obligations affected by the fundamental change
Summary
All coastal States are entitled to maritime zones in the water columns surrounding their land and in the seabed extending from their coastlines, in accordance with the United Nations Convention on the Law of the Sea (UNCLOS).[1]. The origin and travaux préparatoires of the provision are examined, as well as the provision’s application in relation to treaties establishing maritime boundaries This analysis indicates that particular types of maritime boundaries may be set aside by virtue of VCLT Article 62 when relevant coastal geography has undergone drastic and unforeseen changes, leading to the radical transformation of maritime entitlements under UNCLOS. The exclusion of treaties establishing boundaries only applies to boundaries delimiting sovereign territory and, does not cover boundaries delimiting the exclusive economic zone, exclusive fisheries zone, or the continental shelf
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