Rebus Sic Stantibus

Rebus Sic Stantibus

rohan Singh_JudicateMe

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This Blog is written by Rohan Singh from University of Petroleum and Energy Studies, DehradunEdited by Ravikiran Shukre.

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INTRODUCTION

‘REBUS SIC STANTIBUS’ is the Latin phrase that means things thus standing that also refers until the circumstances and conditions around the contract have not fundamentally changed, the termination or withdrawal of the contract is not possible.  This phrase has been often used in international law, specifically in treaty law in a form of doctrine and been a subject on which debates and dispute took place. Provisions of this have been given under Article 62 of the Vienna Convention of the law of Treaties 1969 and this is also the part of customary international law.

CLAUSULA REBUS SIC STANTIBUS, this doctrine allows for the treaty or the contract to get withdrawal and from being terminated when the fundamental change in circumstances of the treaty or contract is done. It helps to release from the principle of ‘Pacta Sunt Servanda’ that means all the states must be abided by the agreements made between them in a good faith. Article 26 of the Vienna Convention legally provides about Pacta Sunt Servanda that the treaties in force are not only binding in the parties but also should be performed in good faith.

APPLICATION OF THE DOCTRINE

Article 62 of the Vienna Convention on the law of Treaties 1969 also speaks on the fundamental change of the circumstances from which Rebus Sic Stantibus can be initiated under certain conditions-

• It is necessary that the fundamental change of the circumstances that exist at the instance where the treaty was concluded in the present existing situation. Parties cannot ignore such fundamental changes.

• The parties entered and agreed to be bound by any treaties shall give consent shall be the essential basis of those circumstances.

• If there is no establishment of boundaries in the treaty.

• If there are any fundamental changes that have occurred as a reason of a breach by any party that invokes the said changes, no escape is possible under the obligations mentioned under the treaty because of this doctrine. The breach could be of any obligations that are present under the treaty or the breach could be of the international obligation owned by any of the parties under the same treaty.

SIGNIFICANCE OF REBUS SIC STANTIBUS

No international legal instrument expressly mentions the doctrine of Rebus Sic Stantibus, only Article 62 of the Vienna Convention speaks about a fundamental change in circumstances.  In International relations, parties often use this doctrine to withdraw from treaties. This doctrine may be used by the state where-

• When the conclusion of the treaty takes place and the state thinks it to be a beneficial treaty but later they realize it to be unbeneficial. It is possible that there is unrest or bad internal situation in the state when the treaty is found to be harmful or detrimental to the state. In this kind of scenario, the state may take actions to withdraw, suspend operations, terminate or render the treaty as invalid.

• State policy and sovereignty may dictate that the state is not the one who always follows the terms mentioned in the treaty and therefore the state has an option to choose to withdraw itself from a treaty. If it seems to the state that the treaty is detrimental to its security or any subject related to its security, it might choose this option.

It has been seen that the state often cites their own internal factors and reasons like to protect their interest and therefore use this doctrine. This doctrine is significant while serving the objective to protect the state interest and with that, it prevents the misuse through the conditions of ‘fundamental change in circumstances.’

Invalidity and Termination with Respect to International Law

Termination of The Treaty Under International Law Can Be Stipulated Under Article 42 And 43 Of The Vienna Convention.

The validity of the treaty and the consent of a party that binds it to the treaty can be impeached only through the application from the Vienna Convention is stated under Article 42.

Article 43 states that the denunciation, withdrawal, termination, invalidity 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 simpler way of explanation of this could be a State that withdraws from the treaty requiring the working of a particular obligation would also be required to perform that obligation if it is dedicated by other international law instruments to which it is a party.

The same kind of the provisions as Article 43 of the Vienna Convention could be seen in Article 103 of the United Nations Charter, which says that in the events of any conflicts because of the obligations that arise out of the treaty between the parties and the other obligations under the UN charter, prevailing would be the obligations toward the UN Charter.

All of these provisions serve as a safeguard against misuse of Rebus Sic Stantibus as the only termination is possible with the help of the application of the Vienna Convention and the State will be needing to perform any obligation within the International Law even if it withdraws from a treaty, assuming that it is also a party within International Law Instrument who is stipulated by the working of the duty.

EXAMPLES

1) Russia gave notice to other parties in 1870 that it is no longer as a part and considered itself bound by Article 11, 13 and 14 of the Treaty of Paris 1856, this treaty was of military shipping. Russia also gave in the notice that it was withdrawing unilaterally from this treaty. The doctrine which was used is Rebus Sic Stantibus citing that the situation was changed as the port of Batoum was now not free. In London, a conference held where the incident was decided that unilateral withdrawal would be prohibited.

2) The treaty of 1907 of Norway and Sweden was dissolved in 1924. When the Union of Norway and Sweden was dissolved, this treaty came into existence. It was Norway who mentioned changed circumstances like the Russian Revolution, the Versailles Treaty, and also the entry into the League of Nations of Norway. The treaties were restricted by the time limit, but with the help of the doctrine of Rebus Sic Stantibus, it was still held to be applicable to not only indefinite treaties but also on definite as well.

CASE LAW

The Fisheries Jurisdiction Case

Fisheries Jurisdiction is the most important case of the use of Rebus Sic Stantibus in recent times. In the case of United Kingdom of Great Britain & Northern Ireland V. Iceland [1] the dispute of Iceland was to extend its fisheries jurisdiction from 12 to 50 miles. This case was judged by the International Court of Justice.

The United Kingdom in 1961, reached to a settlement with Iceland that the fisheries zone would be of 12 miles around Iceland and in return to this if there will be any dispute regarding the Iceland fishing Zones, it must be referred to the International Court of Justice.

However, Iceland in 1971 took a decision to extend the fishing zone to 50 miles from 12 miles and further decided that the settlement of 1961 will no longer exist. Thus the United Kingdom approached the International Court of Justice.

It was further contended by Iceland that the circumstances have been changed since 12 miles’ limit has been recognized by both the parties through the 1961and now it was necessary to change the extension of the limit of the zone.

The main issue that was to be decided by the court that was it necessary that there shall be a change in the extension of the obligation to be performed by the party so that there can be a change in the circumstances and this would give rise to the termination of the treaty.

The court further held that the 1978 Icelandic Regulations extension was unilateral and was only exercised by Iceland and the United Kingdom was excluded from fishing in the agreed area under the settlement of 1961. It was further held that for the change in circumstances for the termination of this treaty, it is important that there shall be transformation on the extend of obligations that are to be performed. The changes in the circumstance did not help in transforming the extension of the jurisdiction obligation of Iceland to make the fishery zone to the limit of 12 miles under the settlement of 1961.

CONCLUSION

The doctrine of Rebus Sic Stantibus is feared of being misused and also a controversial one. With the help of the procedures and the provisions, it has been seen that even the International laws put the limit to this doctrine so that objections can be raised towards the action of the party. However, the use of this doctrine is still into consideration, and also it depends on the discretion of different judicial body to check if the fundamental change took place in circumstances along with the transformation in the extent of obligation that needs to be performed.

REFERENCES

[1] United Kingdom of Great Britain & Northern Ireland V. Iceland (I.C.J. 1973 I.C.J. 3)

https://www.merriam-webster.com/dictionary/rebus%20sic%20stantibus

https://www.law.cornell.edu/wex/rebus_sic_stantibus

http://www.duhaime.org/LegalDictionary/R/RebusSicStantibus.aspx

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=8268&context=penn_law_review

https://www.brainkart.com/article/Austin-s-Theory-Of-Sovereignty-(Monistic-View)_1626/

https://www.informea.org/en/court-decision/fisheries-jurisdiction-case-united-kingdom-great-britain-and-northern-ireland-v

https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-3/fisheries-jurisdiction-united-kingdom-v-iceland

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