CYIL vol. 11 (2020)

CYIL 11 (2020) RECENT DEVELOPMENTS IN THE ANTARCTIC TREATY SYSTEM considered Parties to it. But what about the other States that have not yet expressed their consent by approval as required? Are they Parties to the annex anyway? One may argue that since their approval is necessary for the annex to become effective, they may be regarded for further purposes as Parties to the annex. Article 40 of the VLCT provides more details starting with a general disclaimer of the possibility of different provisions in a particular treaty. If there are none, a proposal to amend a treaty between all the parties shall be notified to all the Contracting States. Any such State shall have the right to take part in the decision on the proposal and further on the negotiation and conclusion of any agreement for amending treaty. Here, we already start to deviate from the rule, as only Contracting Parties with a consultative status at the time of the adoption of the annex can be considered such parties. Assuming that even the Consultative Parties that have not yet expressed their consent to be bound by Annex VI by approval are considered Parties for the purpose of such amendment or modification, they all are to be notified and they shall collectively decide on the future of such a proposal. Should they decide to go ahead, they will participate in the negotiation and conclusion of the amended treaty. But there is one minor difference. According to Article IX of the Antarctic Treaty, “new” States Parties with consultative status should also be able to participate at any such decision-making and negotiation. There is no conflict with the provision that any State that becomes Party to the treaty shall be entitled to become Party to the treaty as amended. Article IX of the Antarctic Treaty does not rule out this possibility, therefore this rule is fully applicable. Paragraph 4 of Article 40 of the VLCT sets forth that the amending agreement does not bind any State already Party to the Treaty which does not become a Party to the amending agreement. The provision further refers to Article 30, paragraph 4(b) of the VLCT. Said paragraph concludes that between State Parties to both treaties and a State Party to only one of the treaties, the treaty to which both States are Parties governs their mutual rights and obligations. This rule may be applicable among Contracting Parties with consultative status on one side and a Contracting Party without such status on the other side. The reason behind this is that as it is necessary for all Contracting Parties with consultative status for the amendment or modification to become effective, the same treaty would be applicable among those States, either throughAnnex VI only or the modified or amended agreement too. The last rule of said article of the VLCT is also only applicable to the situations where there are Contracting Parties with consultative status on one side and a Contracting Party without such status on the other, as it presumes the entry into force of the amending agreement. It assumes that a State that becomes a Party to the Treaty after the amended agreement enters into force, is considered a Party to the amended treaty, unless expressed otherwise. In relation to any other Party to the Treaty not bound by the amended agreement, it is considered to be Party to the unamended Treaty. Therefore, what is quite clear, is that for any changes to Annex VI, even before its entry into force, all Contracting Parties with consultative status at the time of the adoption of the annex have to be consulted and make a decision on any proposal related to the modification or amendment. Any modification or amendment may further provide that such modification or amendment becomes effective on the same date that Annex VI becomes effective. In spite of

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