CYIL vol. 10 (2019)

RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ The possible application of these three grounds for the termination of a treaty or for the withdrawal of the state from a treaty may thus arise in connection to the disarmament and arms restrictions. There have been several cases of withdrawal in this area over the past two decades. This was the US withdrawal from the Anti-Ballistic Missile Treaty (ABM) in 2001 and the DPRK’s withdrawal from the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) in 2003. Also, what can be included into this category, even though it was not a withdrawal, was the Russian suspension of the Treaty on Conventional Armed Forces in Europe (CEF) in 2007. The last case was the US announcement of the withdrawal from the Intermediate-Range Nuclear Forces Treaty (INF) in 2018. In all these cases, we can ask the question of the relationship between the 1969 Vienna Convention on the Law of Treaties and the cases of withdrawal of the states from arms reduction and disarmament treaties. The state which entered into a treaty that became valid and entered into force, has the duty to honestly comply with the treaty in accordance with the principle of pacta sunt servanda – honest fulfilment of international treaties. It stems from this principle, that possible termination of the legally binding treaty must be carried out on the basis of legal rules and is therefore not a matter of the freedom of choice of the states. The requirement, that the suspension and termination of the treaty must be in accordance with the international law of treaties, was expressed by the International Court of Justice in the 1997 Gabčíkovo / Nagymaros 21 Judgment. The termination of the treaty, the unilateral act of withdrawal from the contract or termination of the contract is ruled by the international law of treaties and it is an expression of interest in maintaining the stability and predictability of international relations 22 . 3. Rules on Withdrawal and Termination of the Treaties on Arms Restrictions and Disarmament The law of international treaties is currently codified in the Vienna Convention on the Law of Treaties of 1969. The Vienna Convention contains various provisions on the basis of which a treaty can be terminated or the withdrawal of the party may take place. Under Article 54, a contract may be terminated under the provisions of the contract or at any time by consent of the parties . The Vienna Convention also contains a rule in Article 56 on the possibility of termination or withdrawal. However, Article 56 shall apply to cases when the treaty has no provision regarding termination, denunciation, or withdrawal . In addition to these provisions, Articles 60-62 of the Vienna Convention on the Law of Treaties contain rules on termination or suspension in specified cases. It is a material breach of the treaty (Article 60), later an impossibility of performance on the treaty (Article 61), and fundamental change of circumstances (Article 62). Most of the treaties on arms and disarmament reduction concluded after World War II, including those concluded in the 1990s, i.e. at a time when there had already been a fundamental change in relations between the originally competing states, contain provisions which allow the unilateral withdrawal or termination of the contract for reasons of protection of the highest security interests of the state. Multilateral treaties include the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water of 1963 (Art. IV), the Treaty on the Non-Proliferation of Nuclear Weapons of 1968

21 Ibid., I. C. J. Reports, paragraph 47. 22 AHLSTROM, Ch. Withdrawal from Arms Control Treaties. Stockholm: SIPRI Yearbook , 2004, p. 763.

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