On The Exit Rights Of Treaties

It is generally recognized that the international legal system is grounded on a fundamental principle:pacta sunt servanda—treaties must be obeyed. However, neither treaties themselves nor the geostrategic context in which treaties are embedded are static, of course. When shifts in the political landscape or domestic preferences undermine a treaty’s objectives or render its terms unduly burdensome or obsolete, international law directs states to prefer re-negotiations with their treaty partners, attempting to revise the treaty. In case of achieving no effect of revision, the contracting parties even spare no efforts to exercise the exit right of treaty in order to fulfill its goal. Given the prevalent use of exit rights in international practice of treaties and the diverse design of exit right clauses, it is surprising that the research on exit rights of treaties has received so little attention in international law scholarship.With the symbolic adoption of the1969Vienna Convention on the Law of Treaties (VCLT), the historic emergence and development of treaty exit rights can be divided into three phases:the pre-drafting phase of VCLT, the drafting phase of VCLT and the post drafting phase of VCLT. In Accordance with different classification standards, treaty exit rights fall within the categories of express exit right vs. implied exit right, agreed exit right vs. exit right under general international law, unilateral exit right vs. group exit right and complete exit right vs. partial exit right.Essentially, treaty exit right is the emanation and prerogative of sovereignty. The sovereign attribute determines the legitimacy of treaty exit right. The treaty exit right in the practice of treaty law is analogous to the derogation right of customary international law and the rescission right of contract in domestic private law. The exercise of treaty exit rights actually reflects the pursuit of cooperation value, coordination value, justice value, safeguard value, pragmatic value and the value of adaptability to changes. While recognizing the exit rights’significance of protecting the interests of contracting parties, the overall interests of the international community as a whole should also be taken into account.The conditions of exercising treaty exit rights can be categorized into the substantive conditions and the procedural conditions. The substantive conditions include the mutual agreement of the contracting parties, rebus sic stantibus, other parties’material breach and impossibility of treaty performance. In the aspect of procedures, some treaties impose limitations on the time of exercising exit rights. Generally, treaties require the exiting parties to make notice of exit. However, the treaty exit rights will not take effect until a period of time elapses after the notice. There should exist a moratorium between the notice making and the entry into force of the exit rights. But the length of the moratorium and the elaboration of the reasons for treaty exit in the notice do not possess the nature of customary international law.The sovereign attribute of treaty exit rights determines the rights’ property of relativity. The exercise of treaty exit rights should be bound by the principle of pacta sunt servanda. Moreover, the exercise of the treaty exit rights should also be restrained by the doctrine of international-community-orientation.Attentively, the exiting country, relative to the treaty which it exits, will become a third party to the treaty after the exit, thus no new rights and obligations within the treaty regime arise. But the obligations which have incurred within the framework of the treaty before the exit right enters into force can not be released. Moreover, either the jus cogens norms or the customary international law rules which are stipulated in the exited treaty that the exited country once participated in maintain their binding forces upon the exited country.In the practice of treaties, if, at any time during the moratorium, an objection is lodged by another party to the treaty, a dispute is initiated. Section4Part V of1969Vienna Convention on the Law of Treaties describes the procedures which must be followed by the parties to settle the relevant disputes. The dispute settlement procedures can be divided into two stages:the first stage is the optional procedure provided in Article65paragraph3of the Convention; and the second stage is the compulsory procedure set up in Article66and the Annex of the Convention. Given the non-customary nature of the settlement mechanism in the Vienna Convention on the Law of Treaties concerning the exit right disputes, therefore it lacks the inescapable binding force on the non-parties, hence the dispute settlement of a specific treaty’s exit right is supposed to apply the dispute settlement mechanism or methods contained in the treaty itself priorly.