CYIL vol. 10 (2019)

RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ in the 1990s could trigger this substantial change of circumstances. The response to these changed circumstances was the conclusion and ratification of the Adapted Conventional Armed Forces in Europe Treaty of 1999. However, this treaty did not enter into force, which was the main reason for the suspension of the CFE treaty by Russia. “Change in the overall political orientation can be invoked only in case that the circumstances have been the underlying reason for the conclusion of the contract and the circumstances changed.” 45 The fact that the Treaty was concluded between the Member States of NATO and the Warsaw Pact in 1990, which ceased to exist in 1991, could be regarded as such a circumstance. Subsequently, the Soviet Union ceased to exist, and former Warsaw Pact member states became NATO members, including some of the former Soviet republics. The Adapted Conventional Armed Forces in Europe Treaty of 1999 tried to respond to these changes. For example, the USA pointed to changed events in attempting to achieve a change to the Anti-Ballistic Missile Treaty (ABM) of 1972. The USA argued that the Treaty was concluded at the time of rivalry between the USA and the USSR, which was of essentially antagonistic nature. However, in the 1990s, the conditions changed and the two states were no longer enemies, so the treaty on mutual relations lost its importance. On the contrary, new threats emerged in the form of states, such as Iran, the DPRK in their time, and Iraq, possibly also others, seeking to procure nuclear weapons. These changes could thus have a radical impact on the fulfilment of the treaty. The USA eventually withdrew from the ABM based on its withdrawal clause. In accordance with Article XV (2), the ABM Treaty ceased to exist six months after the notification on 13 June 2002. In regards to Article 60 of the Vienna Convention on the Law of Treaties, the reason for suspending or withdrawing from a treaty is a material breach of the treaty . Under Article 60 (3), a material breach of the treaty consists of: (a) repudiation of the treaty not sanctioned by the Convention; or (b) violation of a provision which is essential to the accomplishment of the object and purpose of the treaty. Consequently, the state party is guilty of commiting internationally unlawful conduct. In comparison, the arms reduction and disarmament treaties use the wording that the reason for withdrawal is extraordinary events that relate to the subject matter of the treaty and jeopardize the country’s highest interests. Thus, the concept of a substantial breach of Article 60 covers only closely defined cases compared to extraordinary events , which are understood very broadly. Material breach requires the internationally illegal conduct of another party of the same contract. While extraordinary events might be met by circumstances that are not caused or do not have an effect on the conduct of another party. Extraordinary events must only relate to the subject of the contract and jeopardize the highest interests of the party. The extraordinary events may be caused by the actions of the contracting party, which is in accordance with the treaty or with the behaviour of a non-member state, or non-state actors 46 , etc. The concept of the extraordinary Adapted Conventional Armed Forces in Europe Treaty adopted in Istanbul, e) failure to fulfil the commitment to correct territorial limit levels adopted in Istanbul by Hungary, Poland, Slovakia and the Czech Republic; f) negative approach of non-participating states, Latvia, Lithuania and Estonia to the CFE Treaty (and as a consequence creation of the territory where the deployment of conventional weapons, including weapons from other countries, is not limited) to the respect of Russian political commitment to military restraint in the northwest of Russia. 45 ŠTURMA, P., ČEPELKA, Č., BALAŠ, V. Právo mezinárodních smluv . [Law of international treaties]. Plzeň: Aleš Čeněk, 2011, p. 181. 46 JOYNER, D., H., ROSCINI, M. Non-Proliferation Law as a Special Regime. Chapter 5 – Withdrawal from

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