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Klauzula rebus sic stantibus w prawie traktatów z perspektywy historycznej

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Szymański J.

Miscellanea Historico-Iuridica

2013

vol. 12

353-380

The clause of rebus sic stantibus is a principle in customary international law providing that where there has been a fundamental change of circumstances since an agreement was concluded, a party to that agreement may withdraw from or terminate it. It is justi- ﬁed by the fact that some treaties may remain in force for long periods of time, during which fundamental changes might have occurred. Such changes might encourage one of the parties to adopt drastic measures in the face of general refusal to accept an al- teration in the terms of the treaty. However, this doctrine has been criticized on the grounds that, having regard to the absence of any system for compulsory jurisdiction in the international law, it could operate as a discrupting inﬂuence upon the binding force of obligations undertaken by states. It might be used to justify withdrawal from treaties on rather tenuous grounds. The modern approach is to admit the existence of the doctrine, but severely re- strict its scope. The International Court in the Fisheries Jurisdiction case declared that: “[i]nternational law admits that a fundamental change in the circumstances which de- termined the parties to accept a treaty, if it has resulted in a radical transformation of the extent of the obligations imposed by it, may, under certain conditions, aﬀord the party aﬀected a ground for invoking the termination or suspension of the treaty”. Before the doctrine may be applied, the Court continued, it is necessary that such changes “must have increased the burden of the obligations to be executed to the extent of rendering the performance something essentially diﬀerent from the originally under- taken”. The doctrine of rebus sic stantibus was examined in the Gabčikovo-Nagymaros Project case too, where the International Court concluded that: “The changed circumstances advanced by Hungary are, in the Court’s View, not of such a nature, either individually or collectively, that their eﬀect what radically transform the extent of the obligations still to be performed in order to accomplish the Project. A fundamental change of circumstances must have been unforeseen; the existence of the circumstances at the time of the Treaty’s conclusion must have constituted an essential basis of the consent of the parties to be bound by the Treaty. The negative and conditional wording of article 62 of the Vienna Convention on the Law of Treaties is a clear indication moreover that the stability of treaty relations requires that the plea of fundamental change of circumstances should be applied only in exceptional cases”.

Instytucja ratyfikacji umów międzynarodowych i konsekwencje zmiany jej charakteru prawnego z perspektywy historycznej

100%

Szymański J.

Miscellanea Historico-Iuridica

2012

vol. 11

157-190

In this article, the meaning and nature of ratification is discussed. It is shown that in early practice and doctrine, ratification was a confirmation that what had been signed had been duly and properly signed – an acknowledgment by a principal of the act of his agent. No doubt, this theory was not a strict acceptance of the doctrine of private law agency, even at a time when private law analogies were more freely accepted than they are today. For ratification of an act of an agent concluded within the limits of his authority is not strictly necessary in private law. But the difference is purely formal. In both cases – treaties and contracts made by agents – the signed document created obligations. In international law the document was not perfectly binding until a ratification was issued. It is, at any rate, clear that the private law analogy was valid in the seventeenth, and the greater part of the eighteenth, centuries to this extent: the duty to ratify – i.e. to acknowledge publicly the binding force of a signed treaty – was held not to apply when the agent had exceeded his instructions. This was the only generally recognized ground for refusing a ratification. The French and American Revolutions changed all this. They attempted to banish from public law the notion of absolute power. Indeed, for a short interval, as has been shown, the treaty– making power was vested in a national assembly – in France, the National Convention, in the United States, in Congress. But this was found impracticable, and in the United States the Senate reserved only the power to sanction and participate in the final act of ratification. When this deliberative element was introduced into the process of ratification, it became apparent that ratification could no longer be regarded as obligatory. An account of ratification in theory and in practice is incomplete without a study of the formal clauses in treaties with regard to the date of their coming into force. It is clear that, in many cases, ratification is dispensed with, either for reasons of expedition, or because ratification does not require any deliberation according to the constitutional practice of the States concerned. On the other hand, the development of the multipartite treaty caused signature or accession to supplant ratification, in the increasingly common case of States becoming parties to a treaty to which they are not original signatories. The very large number of constitutional texts prescribing a specific procedure for the conclusion of treaties, the changed character of ratification, and the existence in formal documents, and in treaties themselves, of clear stipulations as to satisfaction of constitutional requirements, it is impossible to ignore the relevance of such provisions in international law.

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Klauzula rebus sic stantibus w prawie traktatów z perspektywy historycznej

Instytucja ratyfikacji umów międzynarodowych i konsekwencje zmiany jej charakteru prawnego z perspektywy historycznej