Termination of Maritime Boundaries Due to a Fundamental Change of Circumstances

• Author: Snjólaug Árnadóttir
• Position: PhD Candidate, Department of Law, University of Edinburgh (Scotland, United Kingdom)
• Pages: 94-111

Snjólaug Árnadóttir, ‘Termination of Maritime Boundaries Due to a

Fundamental Change of Circumstances’ (2016) 32(83) Utrecht Journal of

International and European Law 94, DOI: http://dx.doi.org/10.5334/ujiel.335

UTRECHT JOURNAL OF

INTERN

ATIONAL AND EUROPEAN LA

W

RESEARCH ARTICLE

Termination of Maritime Boundaries Due to a

Fundamental Change of Circumstances

Snjólaug Árnadóttir*

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 codied in Article 62 of the

Vienna Convention on the Law of Treaties (VCLT). The fundamental change must aect 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 signicant and unexpected changes in coastal

geography which can aect 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 préparatoires

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 sheries zone and the continental shelf can be subject to termination due to a funda-

mental change of circumstances.

Keywords: Law of treaties; Termination of treaties; Fundamental change of circumstances;

Rebus sic stantibus

; Law of the sea; Maritime boundaries

I. Introduction

All coastal States are entitled to maritime zones in the water columns surrounding their land and in the sea-

bed extending from their coastlines, in accordance with the United Nations Convention on the Law of the

Sea (UNCLOS).1 UNCLOS determines the maximum width of each maritime zone and when the entitlements

of opposite or adjacent coastal States overlap, a maritime boundary must be established in accordance with

Articles 15, 74 and 83 of UNCLOS. These three provisions require that an agreement on the basis of interna-

tional law, as referred to in Article 38 of the Statute of the International Court of Justice, is reached between

relevant neighbouring States. The territorial sea must be delimited by reference to a median or equidistance

line (unless special circumstances or historic title justify application of a different method)2 and delimita-

tion of the exclusive economic zone and continental shelf must always result in an equitable solution.3 If

efforts to negotiate maritime boundaries fail, boundaries are delimited through the means provided for in

UNCLOS Part XV,4 for example, through judicial settlement, unless relevant States have opted out of the

mandatory settlement of boundary disputes as permitted under Article 298(1(b)) of UNCLOS. Consequently,

the requirement to establish an agreed boundary can be met by either negotiation or submission of the

dispute to a court or a tribunal.

* PhD Candidate, Department of Law, University of Edinburgh (Scotland, United Kingdom).

1

United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3

(UNCLOS).

2

ibid art 15.

3

ibid arts 74, 83.

4

United Nations, Handbook on the Delimitation of Maritime Boundaries (UN 2001) 1.

Árnadóttir 95

Agreed maritime boundaries are final and binding, whether they are negotiated or judicially decided, as

they are subject to the general principle pacta sunt servanda.5 Treaties generally rely on the assumption that

certain circumstances, essential to the conclusion of the treaty, will remain unchanged. It is on the basis of

those circumstances that parties reach an agreement specifying their shared expectations and pacta sunt

servanda aims to safeguard these shared expectations.6 However, pacta sunt servanda does not provide that

all agreements remain inviolable till the end of time.7 When circumstances leading to the conclusion of a

treaty have changed and obligations under a treaty have become unduly burdensome, States can be freed

from their contractual obligations through peaceful means, by virtue of a different principle: rebus sic stan-

tibus.8 The doctrine of rebus sic stantibus allows for a treaty’s unilateral termination when an unforeseen

fundamental change of circumstance has affected the essential basis of the treaty. This customary rule is

codified in Article 62 of the Vienna Convention on the Law of Treaties (VCLT).9

VCLT Article 62(2)(a) explicitly excludes treaties establishing boundaries from its application. For that

reason, one might assume that maritime boundaries could never be set aside due to a fundamental change

of circumstances, such as the submergence of an island or the appearance of a new volcanic island. There

are however, no indicators that the original customary rule excluded maritime boundary treaties. Further,

when members of the International Law Commission (ILC) decided to exclude treaties establishing bounda-

ries from the application of VCLT Article 62, they never discussed the possibility of also excluding maritime

boundaries. The nature of maritime zones is different from that of land territory and the reason for exclud-

ing treaties establishing land boundaries, the need for stability, is not a necessary requirement of maritime

frontiers, which generally fluctuate with changes to the coastal front.10

This article provides a doctrinal analysis of VCLT Article 62, with particular emphasis on the ‘boundary’

concept. The origin and travaux préparatoires of the provision are examined, as well as the provision’s appli-

cation in relation to treaties establishing maritime boundaries. This analysis indicates that particular types

of maritime boundaries may indeed be set aside by virtue of VCLT Article 62 when relevant coastal geog-

raphy 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, consequently, does not cover boundaries delimiting the exclusive eco-

nomic zone, exclusive fisheries zone, or the continental shelf.

II.

Rebus Sic Stantibus

: The Origin of VCLT Article 62

Gentilis, who wrote the first textbook in international law,11 introduced the maxim omnis conventio intel-

ligitur rebus sic stantibus12 in the sixteenth century. He is believed to have been the first legal scholar to

discuss the theory more generally known as rebus sic stantibus. Gentilis based his findings on the writings

of civil lawyers but according to Pal of the ILC, the theory derived from canon law.13 Its existence was later

affirmed by Suárez and Vattel but rejected by Grotius in the seventeenth century because he made a distinc-

tion between treaties and contracts and was reluctant to accept the termination of treaties due to changed

circumstances because of derivative complications.14 Bynkershoek is also said to have rejected the theory of

rebus sic stantibus in the eighteenth century, although he held that an impossibility of performance might

allow for derogation from treaty obligations.15 Such a contention does not necessarily reject the doctrine

of rebus sic stantibus since some members of the ILC did not distinguish between rebus sic stantibus and

impossibility of performance while drafting the articles for the VCLT.16 Several members wanted to merge

5

Frontier Dispute (Burkina Faso v Repblic of Mali) (Judgment) (1986) ICJ Rep 554, 577, para 46.

6

Eric Stein and Dominique Carreau, ‘Law and Peaceful Change in a Subsystem: “Withdrawal” of France from the North Atlantic

Treaty Organisation’ (1968) 62 American Journal of International Law 577, 617.

7

Rein Müllerson, ‘The ABM Treaty: Changed Circumstances, Extraordinary Events, Supreme Interests and International Law’ (2001)

50 The International and Comparative Law Quarterly 509, 525.

8

Stein and Carreau (n 6) 617.

9

Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (VCLT).

10 David D Caron, ‘Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict’

in Seoung-Yong Hong and Jon M Van Dyke (eds), Maritime Boundary Disputes, Settlement Processes and the Law of the Sea (Martinus

Nijhoff 2008) 1–2.

11 Boleslaw A Boczek, International Law: A Dictionary (Scarecrow Press 2005) 9.

12 Every agreement is understood based on the existing circumstances.

13 ILC Summary Record ‘694th Meeting’ (6 June 1963) UN Doc A/CN.4/SR.694, 136.

14 See Hugo Grotius, De Jure Belli ac Pacis (trans Francis W Kelsey) in James B Scott (ed), The Classics of Internationial Law (vol 2, OUP

1925) 424.

15 UN Doc A/CN.4/SR.694 (n 13) 136.

16 ibid 141.