Fundamental Change Of Circumstances Research Articles

International legal protection of the environment from criminal acts during armed conflicts

The article is dedicated to revealing the state of legal provision for the international legal protection of the environment from criminal acts during armed conflicts. Attention is drawn to the fact that international legal obligations of states regarding environmental protection during armed conflict are only contained in a few environmental treaties, but simultaneously in special agreements that are applicable in the presence of armed conflict and are sources of international humanitarian law. It is noted that from the general principles of the impact of war on international treaties, it follows that the termination of an international treaty at the onset of war is an exception to the rules, not a mandatory act. According to Articles 61 and 62 of the Vienna Convention on the Law of Treaties of 1969 regarding impossibility of performance and fundamental change of circumstances, it is established that war is not a basis for the automatic termination of treaty obligations, including environmental ones, by the parties to the conflict who have become parties in peacetime, which is also stated in the Draft Articles on the Impact of Armed Conflicts on Treaties of 2011 prepared by the UN International Law Commission, which includes a reference to a provisional list of treaties whose subject matter implies that they continue to apply during armed conflict, among them – treaties on international environmental protection.
 The standpoint regarding the necessity of developing a codified international instrument, which would consolidate the currently disparate provisions for regulating environmental protection issues in conditions of armed conflict, compensation for damage caused, etc., as a source of international environmental law, is supported. It would also address existing problems in legal application, such as the narrow and imprecise definition of the threshold level criteria required to prove environmental damage during armed conflict.

Performance of Contracts upon the Fundamental Change of Circumstances in Vietnam’s Civil Code 2015

While performance of contracts upon the fundamental change of circumstances is not a new matter in the laws of developed countries, it is newly regulated in the 2015 Civil Code of Vietnam. Only now, Vietnam has had guiding documents from competent state agencies on this matter, so the application in practice is still inconsistent, especially in determining what is the fundamental change of circumstances. Therefore, on the basis of clarifying the concept, legal status and practical application problems, the article will also make some recommendations for the contracting parties as well as the Court in handling the matter of performance of contracts upon the fundamental change of circumstances.

PERFORMANCE OF CONTRACTS UPON THE FUNDAMENTAL CHANGE OF CIRCUMSTANCES IN VIETNAM’S CIVIL CODE 2015

While the performance of contracts upon the fundamental change of circumstances is not a new matter in the laws of developed countries, it is newly regulated in the 2015 Civil Code of Vietnam. Only now, Vietnam has had guiding documents from competent state agencies on this matter, so the application in practice is still inconsistent, especially in determining the fundamental change of circumstances. Therefore, on the basis of clarifying the concept, legal status, and practical application problems, the article will also make some recommendations for the contracting parties and the court in handling the matter of performance of contracts upon the fundamental change of circumstances.

Change, Stability and Stability by Change in the Law of Treaties: Rebus Sic Stantibus

Uluslararası andlaşmaların taraflar nezdinde bağlayıcı olduğunu ve iyi niyetle ifa edilmeleri gerektiğini ifade eden pacta sunt servanda ilkesinin temel amacı, her devletin zamanında ortaya koyduğu iradenin arkasında durmasını sağlayarak devletlerarası ilişkilerde ve uluslararası hukuk düzeninde istikrarı sağlamak ve korumaktır. Bununla birlikte, bir andlaşmanın yapıldığı dönemdeki koşulların önemli ölçüde değişmesi halinde andlaşmanın tarafları arasındaki denge bozulabilecek, andlaşmanın konu ve amacı anlamsızlaşabilecek ve hatta ortadan kalkabilecektir. Bu çerçevede, pacta sunt servanda ilkesini hiçbir koşulda istisnası olmayan bir ilke olarak yorumlamak, uluslararası andlaşmalardan doğan yükümlülüklerinden çok farklı konjonktür ve koşullarda bile kurtulamayacağını düşünen devletleri ahdî ilişkiler içine girmemeye sevk edebilecek ve uluslararası ilişkilerde istikrarsızlığa yol açabilecektir.
 İşte ahdî uluslararası hukukta istikrar ve değişim arasındaki denge, andlaşmaların, akdedilmelerine zemin hazırlayan koşullardan bağımsız düşünülemeyeceği anlayışı üzerine kurulu olan ve geleneksel olarak rebus sic stantibus olarak adlandırılan “koşullarda esaslı değişiklik” ilkesi aracılığıyla sağlanmaya çalışılmaktadır. İlke, uluslararası andlaşmaların, yapıldıkları dönemdeki koşullarda taraflarca öngörülemeyen esaslı değişiklikler yaşanması durumunda sona erdirilebileceklerini veya tarafların bu andlaşmalardan çekilebileceklerini öngörmektedir.
 Uluslararası andlaşmalar hukukunun yerleşik ilkelerinden biri olan rebus sic stantibus, bu alanın aynı zamanda en tartışmalı ilkelerinden biridir. Gerek ulusal gerek uluslararası yargı mercileri ilkeyi uygulamakta çoğu zaman tereddüt etmekte ve pozitif uluslararası hukukun bir parçası olduğu artık tartışma götürmüyorsa da ilkenin tam olarak ne anlama geldiğine ilişkin devletler arasında görüş ayrılıkları bulunmaktadır. 1969 Viyana Andlaşmalar Hukuku Sözleşmesi’nin 62. maddesi ve uluslararası içtihat ilkenin “uluslararası andlaşmaların taraflarının ortak beklentileri” temelinde uygulanması yönünde objektif bir anlayış benimsemekte, devlet uygulamaları ise “devletlerin yaşamsal menfaatleri” temelinde sübjektif bir yorumu kabul etmiş görünmektedir. Elinizdeki çalışma, rebus sic stantibus ilkesinin, bir yandan amacına hizmet edebilmesi, diğer yandan devletler tarafından keyfî bir biçimde kullanılmasının önüne geçilebilmesi için nasıl bir muhakeme yürütülerek ileri sürülmesi gerektiğini tartışmaktadır.

Pride and Perseverance: Strategic Use of Rebus Sic Stantibus in Russian Foreign Policy 1870 – 1950

The paper examines the use of rebus sic stantibus, a claim that a fundamental change of circumstances warrants withdrawal or termination of a treaty, by Russia in three key episodes in Russian foreign policy. These episodes have not been examined together by scholars and have not all been analysed from the perspective of rebus sic stantibus. First, it examines the situation in 1870 when Russia used this approach to obtain the London Declaration, which revised unfavourable terms in the 1856 Treaty of Paris following the Crimean War. Second, it examines the Soviet attempt to terminate or renegotiate the Montreux Convention during and in the aftermath of the Second World War through the use of rebus sic stantibus and, third, it examines the Soviet attempt to renegotiate the Svalbard Treaty through the use of this legal approach. Notably, the analysis shows that these attempts took place during shifts in Russia’s relative power. Given the design of the treaties in question, rebus sic stantibus was one of the only ways to achieve these goals. In addition to providing a thorough study of episodes unexamined from an international legal perspective, the paper may therefore shed light on when rebus sic stantibus is useful and why it is relied on less and less by states today.

Economic Crises and the Fundamental Change of Circumstances in Investment Arbitration

<i>Economic Crises and the Fundamental Change of Circumstances in Investment Arbitration</i>

A Renaissance of the Doctrine of Rebus Sic Stantibus?

Once the ‘popular plaything of Realpolitiker’ the doctrine of rebus sic stantibus post the 1969 VCLT is often described as an objective rule by which, on grounds of equity and justice, a fundamental change of circumstances may be invoked as a ground for termination of a treaty. Yet recent practice from some States suggests that it is returning with a new livery. They point to an understanding that is premised on vital State interests––a view popular among scholars such as Erich Kaufmann at the beginning of the last century.

A RENAISSANCE OF THE DOCTRINE OF REBUS SIC STANTIBUS?

AbstractOnce the ‘popular plaything of Realpolitiker’ the doctrine of rebus sic stantibus post the 1969 VCLT is often described as an objective rule by which, on grounds of equity and justice, a fundamental change of circumstances may be invoked as a ground for termination of a treaty. Yet recent practice from some States suggests that it is returning with a new livery. They point to an understanding that is premised on vital State interests––a view popular among scholars such as Erich Kaufmann at the beginning of the last century.

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

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 Fundamental Change of Circumstances from the Viewpoint of the Shi'ite and Sunni Exegesis

The Fundamental Change of Circumstances from the Viewpoint of the Shi'ite and Sunni Exegesis

ДОКОРІННА ЗМІНА ОБСТАВИН ЯК ПІДСТАВА ДЛЯ ПРИПИНЕННЯ АБО ЗУПИНЕННЯ ДІЇ МІЖНАРОДНОГО ДОГОВОРУ

In this article the author examines a fundamental change of circumstances as the ground for the termination or suspension of the operation of an international treaty in accordance with Article 62 of the Vienna Convention on the Law of Treaties and Customary International Law. The interpretation of the application of the fundamental change of circumstances is analyzed in accordance with the practice of the International Court of Justice and the teachings of the most highly qualified publicists in international law of various nations.

The Challenge of Durable Solutions for Refugees at the Thai–Myanmar Border

In a context of uncertainty about the intentions of the Thai authorities, this article explores the opportunity to proceed with the repatriation of the Burmese refugees living in the camps along the border with Myanmar, based on a number of shifts in the current political environment. It is argued in this regard that the situation in Myanmar has not yet improved enough to justify the return of Burmese refugees on the basis of a “fundamental change of circumstances” in the country of origin. As repatriation alone will not be sufficient to close the camps in Thailand, this article discusses the importance of resorting to a “combination” of the three traditional durable solutions to refugee problems, including resettlement and local integration. Special consideration should also be given to what is sometimes referred to as the “4th solution” to the plight of refugees and displaced persons, that is, the regularization of their status as migrants within the country of asylum.

Effective Application of the Rule on Fundamental Change of Circumstances to Treaties Contravening the 1997 Polish Constitution

A fundamental change of circumstances is one of the more controversial reasons for the termination of a treaty. The fact that it was included in the 1969 Vienna Convention on the Law of Treaties gave rise to many disputes among legal scholars, including whether the solutions adopted then embodied customary law. In this context, an interesting case is offered by Poland which in 1999 invoked specific provisions of the Convention, both substantive and procedural, including a fundamental change of circumstances, and considered several treaties from the period of Soviet domination terminated with retroactive effect from 1997. The article discusses actions by the states involved and their legal effects. Interestingly, this is one of very few examples where a fundamental change of circumstances was an effective reason for bringing about the termination of treaties in a manner that has not drawn any objections nor has brought about any international accountability.

Stability and Change in Times of Fragmentation: The Limits ofPacta Sunt ServandaRevisited

AbstractStability versus change is one of the fundamental debates of the law of treaties. The limits ofpacta sunt servanda– under which conditions a state may derogate from treaty obligations when circumstances change – appears as a constant throughout the history of international law. This article examines the limits ofpacta sunt servandain times of fragmentation. It first discusses the mechanisms of general international law – supervening impossibility of performance and fundamental change of circumstances (Articles 61 and 62 VCLT) in the law of treaties andforce majeureand the state of necessity (Articles 23 and 25 of the ILC Articles on State Responsibility) in the law of state responsibility. It is argued that they provide only insufficient means to accommodate change. Against that background, derogation is examined in specific treaty regimes, including international human rights law, the law of the sea, and international investment law. Treaty-based termination/withdrawal clauses and emergency exceptions are analysed accordingly. Especially the latter are formulated in a regime-specific way, adapting derogation from treaty obligations to the requirements of the respective treaty regimes. On the basis of an empirical analysis of relevant state practice it is argued that this regime-specificity – a sign of fragmentation – is especially important since there is an increased need for temporary derogation in contemporary international law.

A. Racke GmbH &amp; Co. v. Hauptzollamt Mainz

A. Racke GMBH &amp; 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.

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

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 Dutch-Surinam Treaty on Development Assistance: A Correct Appeal to A Fundamental Change of Circumstances?

In 1982 the Netherlands suspended the operation of a treaty between Surinam and the Netherlands which obliges the Netherlands to render development assistance to Surinam. This was justified by invoking a fundamental change of circumstances: a coup d'etat which destroyed democracy and led to serious human rights violations. Bosma examines both substantive and procedural aspects of the suspension and concludes that the Netherlands did not correctly invoke a fundamental change of circumstances.