CYIL vol. 11 (2020)

MARTINA FILIPPIOVÁ CYIL 11 (2020) Treaty. Nevertheless, they made it clear that the same fast-track procedure shall apply also to such Measure, unless the respective Measure provides otherwise. Article 13 should also be read in conjunction with Article 9, paragraph 4 of the Annex VI. According to the Revised Chairman’s Draft of Annex VI as contained in Annex J to the Final Report of the XXVII ATCM, the fast-track amendment process applies to increasing the limits, which otherwise would always be out of date at the time of their ratification. 7 One would say, this is very apt. The reference was made to paragraph 4 of Article IX of the Antarctic Treaty which reads as follows: “The measures referred to in paragraph 1 of this article shall become effective when approved by all the Contracting Parties whose representatives were entitled to participate in the meetings held to consider those measures”. Thus, the measure on increasing limits adopted by the Contracting Parties with the consultative status at the time of its adoption would generally become effective one year after the close of the ATCM at which it was adopted. One has to admire the drafters of said provision, who foresaw that the number of Contracting Parties with consultative status may grow substantially in the future and waiting for approval of each new Party for the measures or amendments to become effective would be a lengthy exercise, decided to opt for this smart approach of only those Consultative Parties at the time of the respective adoption. For instance, the approval of the Czech Republic of Measure 1 (2005) whose annex is Annex VI to the Protocol is not required for Annex VI to become effective, since the consultative status of the Czech Republic was recognized only as of 1 April 2014. Clearly, the drafters could not have foreseen that even 15 years after its adoption Annex VI still would not be approved by all Contracting Parties with consultative status and thus would not become effective. Hence, the limits became outdated even before the annex became effective. Is it possible to trigger the envisaged procedure when the annex itself is not yet effective? Does it mean that first the annex has to become effective and then a new approval of the same Contracting Parties with consultative status is required, but also including also the new parties whose consultative status was recognized after the adoption of Annex VI, but before the adoption of the modification or amendment to it? Or would the modification or amendment be drafted in such a way that enables those Contracting Parties with consultative status that approve such modification or amendment at the same time also explicitly approve the annex? For sure it cannot be presumed that the Contracting Parties with consultative status that have already approved Annex VI also consent to the amendment and modification. Part IV of the Vienna Convention on the Law of the Treaties (VLCT or Convention) stipulates rules regarding modification and amendment of treaties. Article 39 provides a general rule that a treaty may be amended by agreement between Parties stating that Part II of the Convention shall apply unless provided otherwise by the respective treaty. Let’s put this rule under scrutiny under the current circumstances. According to this rule, any amendment or modification is possible only by agreement between parties. Now, here starts the problem. Annex VI is not yet in force. There are few States that have expressed their consent to be bound by the annex by approval. Let’s assume that their approval was made according to Article 14 of the VLCT. So once Annex VI becomes effective, they are

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7 Final Report, accessed online , p. 436.