This article has been written by Ishaan Banerjee from the Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Indraprastha University. This article explains the doctrine of rebus sic stantibus, its application and its role in international law and also looks at several instances where this doctrine was raised.  

Introduction

The phrase ‘rebus sic stantibus’ (things thus standing) is a Latin phrase that refers to a situation where a contract cannot be withdrawn from or terminated as long as the conditions and circumstances surrounding the contract have not fundamentally changed. This has often been used in the form of doctrine in international law, more specifically in treaty law, and has been a subject of debate and disputes. This doctrine is a part of customary international law but a provision for this doctrine has been provided in Article 62 of the Vienna Convention on the Law of Treaties 1969 as well. In this article, we shall explore the constitution of this doctrine, the grounds, and objectives, as well as cases where this doctrine was used.

What is the doctrine of rebus sic stantibus?

Clausula rebus sic stantibus is a doctrine that allows for the contract or treaty to be withdrawn from or terminated when there is a fundamental change in the circumstances of the contract or treaty. It helps to escape the principle of ‘pacta sunt servanda’, which stipulates that all states must abide by the agreements formed between them in good faith. Pacta sunt servanda is also legally provided for in Article 26 of the Vienna Convention which provides that treaties in force are binding upon parties and are to be performed in good faith.

On what basis can this doctrine be applied?

Article 62 of the Vienna Convention on the Law of Treaties 1969 talks about the fundamental change of circumstances in which rebus sic stantibus can be invoked, however, this is also subject to conditions-

• There must be a fundamental change in the circumstances prevailing at the point where the treaty was concluded to the present prevailing circumstances. Such fundamental change must not have been foreseen by the parties.
• Those circumstances must have constituted an essential basis of the consent of the parties by which they entered and agreed to be bound by the treaty.
• The change has the effect of substantially and radically transforming the extent of obligations of a party under the treaty.
• If the treaty does not establish a boundary.
• If the fundamental change has occurred because of a breach by a party invoking the said change, this doctrine cannot be used to escape the obligations under the treaty. This breach can be a breach of an obligation under the treaty or the breach of any international obligation owed to any party under that treaty.

Objectives of rebus sic stantibus

The doctrine of rebus sic stantibus is not expressly mentioned in any international legal instrument but Article 62 of the Vienna Convention talks about fundamental change of circumstances. This doctrine has been often used in international relations by parties to withdraw from treaties. A state may use this doctrine where-

• At the time of the conclusion of the treaty, the state thinks the terms of the treaty to be beneficial but later might realise it to be unbeneficial. There might be some internal situation in a state where the treaty is found to be detrimental or harmful to the state. In such situations, the state may look to withdraw, terminate, suspend operations or render the treaty invalid.
• State sovereignty and policy might dictate that the state not always follow the terms of the treaty therefore the state might choose to withdraw from a treaty. If the state deems a treaty detrimental to its security or security of its subjects, it may choose this option. 

Therefore, it is observed that often states cite their own internal reasons like protection of its interests, to use this doctrine. This doctrine serves the objective of protecting state interests while simultaneously preventing misuse through the condition of ‘fundamental change in circumstances.’

Conflict of rebus sic stantibus with pacta sunt servanda and international law

There arises a conflict of rebus sic stantibus with pacta sunt servanda and international law due to their opposing nature and this has been a subject of great debate and legal discourse. Some contentions in favour of it are-

• There might be valid reasons for a state withdrawing from a treaty. This can usually happen when a state considers conditions and circumstances prevailing at the time of the conclusion of the treaty to be beneficial to it only to find that that was not the case. 
• The operation of the treaty might also hurt the functioning of the state, and the state may find the treaty to be unbeneficial or even detrimental to the interests of its subjects. 
• Going by the theories of sovereignty given by thinkers like Austin, who defined sovereignty as supreme and unquestionable. The state would work on its own will, therefore withdrawing from treaties whenever it chooses.

Some contentions against the doctrine are-

• While the very purpose of international law is to maintain order in state relations and among nations, there has been a view that providing for the doctrine of rebus sic stantibus in international law would nullify the purpose of international treaty law. 
• There are fears that states may have their own concept of ‘fundamental change’ and would use the excuse of state sovereignty to misuse this doctrine to pull out of treaties. 
•  The criticism arises that absolute power vested in the hands of the state would lead to arbitrary actions and suppression of human freedom and rights, and this would enable a state to do anything it wills, disregarding international law and morality.

Therefore, keeping in mind these arguments, international law has provided for provisions for both the doctrines of rebus sic stantibus and pacta sunt servanda, with requisite conditions.

Invalidity and termination of treaties with respect to international law

Article 42 and 43 of the Vienna Convention stipulate the conditions under international law when a treaty can be terminated. 

Article 42 states that the validity of a treaty and the consent of a party that binds it to the treaty can be impeached only through the application of the Vienna Convention. 

Article 43 states that invalidity, termination, denunciation, withdrawal, and suspension of operations, occurring through the application of the Vienna Convention or through the said treaty-

• would not obstruct or impair the duty of a State which it owes under international law, independent of the treaty. 
• A further simplification of this could be explained as: a State which withdraws from a treaty requiring the performance of a particular obligation would still be required to perform that obligation if other international law instruments to which it is a party, so dictate.

A similar provision to Article 43 of the Vienna Convention is Article 103 of the United Nations Charter, which states that in the event of a conflict between the obligations arising out of a treaty between parties and the obligations under the UN Charter, the obligations towards the UN Charter would prevail.

These provisions serve as a protection against the misuse of rebus sic stantibus as the termination can be done only through the application of the Vienna Convention and a State would still need to perform any obligation under international law even if it withdraws from a treaty, assuming that is it also a party to that international law instrument which stipulates the performance of that duty.

The procedure followed after the termination of a treaty 

Article 65 of the Vienna Convention stipulates the procedure that is to be followed when a treaty is terminated, withdrawn from, rendered invalid or has its operations suspended. The procedure is as follows-

• The party must notify the other parties of its claim; be it withdrawal, termination, operations suspension or invalidity. This notification shall state the measure to be taken. 
• There is an expiry period of three months after the receipt of the notification, during which parties to the treaty are allowed to raise objections against the actions of the claimant party. If after the expiry period, no party has raised an objection, the claimant party can proceed with its stipulated measure according to Article 67.
• In the event of an objection being raised by any other party, the parties shall together operate to get a solution under Article 33 of the United Nations Charter. 

Important cases and examples of the use of the doctrine of rebus sic stantibus

• In 1870, Russia notified the other parties that it no longer considered itself bound by Articles 11, 13 and 14 of the Treaty of Paris 1856, which was a treaty on military shipping. Russia also notified that it was unilaterally withdrawing from the treaty. It used the doctrine of rebus sic stantibus citing that the circumstances had changed as the port of Batoum was no longer free. The outcome of this incident was decided in a conference in London where it was decided that unilateral withdrawal would be prohibited. 
• During the Bosnian Crisis of 1908, the then empire of Austria – Hungary refused its rights and obligations under Article 25 of the Treaty of Berlin 1878. It annexed the territory of Bosnia-Herzegovina despite its obligation to only occupy the territory. It cited fundamentally changed circumstances wherein the conditions had changed in the Balkan states, most notably in the combining of Bulgaria and Eastern Rumelia. This set an important precedent in the use of rebus sic stantibus.
• In 1924, Norway dissolved the 1907 treaty with Sweden. This treaty had arisen out of the dissolution of the Union of Norway and Sweden. Norway cited changed circumstances like the Russian Revolution, the Versailles Treaty and the entry of Norway into the League of Nations. This treaty was restricted by a time limit, but the doctrine of rebus sic stantibus was still held to be applicable, thus setting the precedent that the doctrine is not only applicable to indefinite treaties, but also on definite as well. 

The Fisheries Jurisdiction case

• The most important case of the use of rebus sic stantibus in recent times is that of the Fisheries Jurisdiction case (United Kingdom of Great Britain & Northern Ireland v. Iceland [I.C.J. Reports 1973, p. 3.) In this case, the International Court of Justice judged a dispute wherein Iceland sought to extend its fisheries jurisdiction from 12 to 50 miles.
•  In 1961, the United Kingdom reached a settlement with Iceland that there would be a 12-mile fishery zone around Iceland and in return, any dispute regarding the Icelandic fishing zones shall be referred to the International Court of Justice. 
• However, in 1971, Iceland decided to extend the fishing zone to 50 miles and also decided that the 1961 settlement was no longer in effect. The United Kingdom thus approached the International Court of Justice. 
• Iceland contended that there had been a change in the circumstances since the 12-mile limit was now recognized by both parties through the 1961 settlement and this change necessitated the extension of the zone. 
• The main issue to be dealt with here by the Court was whether it was necessary that there be a transformation of the extent of the obligation to be performed by the party so that a change in circumstances may give rise to the termination of a treaty.
• The Court thus held that the 1978 Icelandic Regulations were a unilateral extension exercised by only Iceland and that it could not unilaterally exclude the United Kingdom from fishing in the areas agreed under the 1961 settlement. It was further held that in order to effect a change in circumstances for termination of a treaty, it is necessary that there has been a transformation of the extent of obligations yet to be performed. The change in the circumstances did not transform the extent of the jurisdictional obligation of Iceland to limit the fishery zone to 12 miles under the 1961 settlement.

Conclusion 

The doctrine of rebus sic stantibus is a controversial one, embroiled in fears of its misuse. It can be observed that international law has, to an extent, laid down the limits of the use of this doctrine through express provision as well as procedure, wherein objections can be raised towards the actions of a party. However, the use of the doctrine is still under the scanner, and it actually depends upon the discretion of the judicial body to determine whether there has been a fundamental change in circumstances along with a transformation in the extent of the obligation to be performed.

References

1. https://www.merriam-webster.com/dictionary/rebus%20sic%20stantibus
2. https://www.law.cornell.edu/wex/rebus_sic_stantibus
3. http://www.duhaime.org/LegalDictionary/R/RebusSicStantibus.aspx
4. https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=8268&context=penn_law_review
5. https://www.brainkart.com/article/Austin-s-Theory-Of-Sovereignty-(Monistic-View)_1626/
6. https://www.informea.org/en/court-decision/fisheries-jurisdiction-case-united-kingdom-great-britain-and-northern-ireland-v
7. https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-3/fisheries-jurisdiction-united-kingdom-v-iceland/