On The Mechanism Of Unilateral Withdrawal From International Treaties

Pacta Sunt Servanda is an ancient rule of customary law,derived from the concept of ancient Roman law,which is also a very important theory in international law.Pacta Sunt Servanda requires that the treaty must be implemented honestly and uprightly,not only in accordance with its letter but also in the spirit of the treaty.Article 26 of the Vienna Convention on the Law of Treaty stated “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”,which emphasized the theory of Pacta Sunt Servanda.However,no country is strong forever,no country is weak forever,the international community is constantly changing,and neither the treaty itself nor the geopolitical external conditions of the treaty can be constant.When a change in the domestic political interests of states or a change in the foreign policy of states makes the purpose of a previously concluded treaty difficult to achieve,or when it places an undue burden on the parties and undermines the interests of the parties,international law favours negotiations between the parties to amend anachronistic provisions of the treaty.The introduction of the right of withdrawal from a treaty only if the modification of the treaty can not achieve.The rule of international law that deals with treaty related changes coincides with Hirschmann’s “Exit and Appeal” theory.Hirschmann once said that in any economic,social,and political system,individuals,businesses,and organizations as a whole have a tendency to slide from efficient,rational,law abiding,noble,or desirablepatterns of behavior to decline.Based on this,he put forward the theory of “Exit and Appeal”,that is,at the enterprise level,“Exit” can be seen as a shift from one product to another alternative product,while “Appeal” is that a consumer or a member of an organization gives an opinion to management and asks it to find a solution.A treaty should be similar in its approach to related issues,and when a state’s domestic interests diverge from those of the international community,“Appeal” is to propose amendments to the other Parties to the treaty,and “Exit” is a complete abandonment of communication and negotiation and a withdrawal from a treaty that is not in its interest.In treaty practice,however,the requirement to obtain the consent of the other Parties is time-consuming and costly,and the results are often unsatisfactory.In contrast,the choice of withdrawal seems to be more in line with the interests.Conventional Wisdom holds that withdrawal from a treaty is an extremely rare act,only when all other methods of diplomatic persuasion or influence have been exhausted and have not yet succeeded.In recent years,the practice of withdrawal has become more and more active,and it is becoming an important legal means for countries to safeguard their own national interests,control specific risks and conduct political games,such as the UK voted to leave the EU,President Trump’s exit from the TPP,the Paris Agreement,the Iran nuclear deal,the Vienna Convention on Diplomatic Relations,Optional Protocols and Resolutions,and the Intermediate-Range Nuclear Forces,South Africa withdraws from ICC and etc.The reason for this is the rise of protectionism,the post-financial crisis era,everyone is self-critical,constantly limit the degree of participation in globalization to protect their interests.However,the impact of international treaties,which are closely related to globalization and international governance,is conceivable.Although more and more international treaties concluded in recent years set a withdrawal clause,compared with the absence of such a clause in previous treaties,however,it is still unable to regulate countries’ withdrawal from international treaties reasonably and effectively.Only in recent years has the issue of treaty withdrawal come back into public view,as the number of instances of withdrawal has increased.However,domestic scholars have not done enough research on the treaty withdrawal issue,especially under China’s current foreign policy,which is not a good strategy.As the issue of withdrawal becomes more and more intense,studying the withdrawal of treaties can safeguard China’s rights and interests as a Signatory Party of the treaties,and actively seek reasonable solutions in international law.And it also has certain guiding significance for the establishment of the withdrawal clause in treaties which China participates in or takes the lead in concluding.This paper is divided into four chapters to discuss the issue of unilateral withdrawal from international treaties.The first section of Chapter I is an overview of the issue of unilateral withdrawal from international treaties.By comparing and analyzing the difference between withdrawal from a treaty and breach of a treaty,the characteristics of openness and formality of withdrawal from a treaty are made clear.The second section further analyzes the effects of unilateral withdrawal from international treaties,from the three dimensions of international treaties itself,the withdrawing state and other contracting states,and analyzes the impact of treaty withdrawal on the relevant subjects.The third section demonstrates the legitimacy and restrictive conditions of treaty withdrawal.On the one hand,the author argues the legitimacy of treaty withdrawal from the perspective of the attribute of state sovereignty,the balance of interests and the flexibility of the treaty system.However,there is no unlimited right.On the other hand,the author analyses the restrictions of unilateral withdrawal from the perspective of the principle of Pacta Sunt Servanda,the cost of withdrawal and the consequences of unilateral withdrawal.The Chapter Ⅱ mainly focuses on the analysis of the procedural issues of withdrawal.On the basis of the justification of unilateral withdrawal from international treaties in Chapter I,the question arises as to the conditions under which a contracting state may withdraw from the treaty in full and the specific procedural arrangements for unilateral withdrawal from an international treaty.The first section lists the four situations in the Vienna Convention on the Law of Treaties in which a contracting state may denounce or withdraw from a concluded treaty,and analyses the specific application of each situation.The second section summarizes the main procedures of treaty withdrawal by sorting out the settings of withdrawal clauses invarious types of international treaties.First of all,the time limit of treaty withdrawal is stated.In order to ensure the stability of the treaty,some international treaties limit the time of withdrawal.Secondly,it constructs the design of the notice of withdrawal from the subject,the object and whether the reasons of withdrawal need to be listed.Thirdly,the author discusses the design of objection period of unilateral withdrawal,which is based on the length of objection period,the withdrawal of notice of withdrawal and the right of objection of other contracting states.Finally,the author discusses the entry into force of unilateral withdrawal from the treaty and the assumption of obligations after its entry into force.The last section,on the basis of the relevant provisions of the Vienna Convention on the Law of Treaties,discusses the procedure of withdrawal from an international treaty without a withdrawal clause.As the practices of unilateral withdrawal from international treaties have become more and more intense,the problems exposed have become more and more obvious,especially in the current atmosphere of rising protectionism among countries.International treaties,which are closely related to globalization and international governance,have been particularly in risk.The Chapter Ⅲ of this paper focuses on the analysis of the current practice of withdrawal from the treaty has emerged a variety of issues.The first section deals with the procedure of withdrawal from a treaty,which has long been reduced to a model clause even when an international treaty contains a withdrawal clause,in which the design of the withdrawal procedure is simpler.This section proceeds from the lack of substantive requirements for withdrawal and insufficient participation by other parties.The second section is about the responsibility in the international treaty after the withdrawal,analyzing the relevant responsibility after the withdrawal of the treaty is difficult to implement,so that countries for the withdrawal of the treaty without fear.The third section is the connection of international procedure and domestic procedure.In the case of withdrawal,such as the United States,the United Kingdom and Africa,there is a problem that the domestic law has no clear agreement on the right of unilateral withdrawal from the treaty.This may lead to repeated notice of withdrawal or to litigation issues under domestic law.While this section focuses on the obstacles to theconnection of international law and national law about treaty withdrawal.The Chapter Ⅳ is the reference for China to study the unilateral withdrawal from international treaties.With the rising trend of anti-globalization,it is a fatal blow to the order of international treaties.In recent years,with the withdrawal from a series of international treaties and organizations after US President Donald Trump came to power and the Brexit of the UK,the issue of unilateral withdrawal from international treaties has come back into public view again.Although China has a responsible reputation in the international community since the reform and opening up,we have never withdrawn from the treaties to which we have acceded.However,as the issue of withdrawal becomes more and more serious,how to safeguard the right of being a party to the treaties.It is also something that we need to be clear about by studying the treaty regime.The first section of this Chapter analyzes China’s current position on withdrawal from treaties and the relevant deficiencies and suggestions for improvement in the Law of the People’s Republic of China on the Procedure for Concluding Treaties.The second section from the perspective of international law to solve the issue of withdrawal from the treaty.Although we have demonstrated the legitimacy of treaty withdrawal,the purpose of the existence of a treaty is to establish and fix the framework of an international regime.Withdrawal without limitation is not only violates the principle of Pacta Sunt Servanda,but is extremely detrimental to the stability of the system.With regard to international law,it is regulated by the internal and external aspects of the need to prevent arbitrary withdrawal through the improvement of the rules of procedure relating to withdrawal,on the one hand,and the strengthening of international cooperation,on the other,through external pressure from the international community.In the third section,we must realize that protectionism is only temporary and globalization is the trend of the Times.Therefore,at this stage,we should take a more active part in international affairs,let the world hear China’s voice and participate in the next round of international governance rule-making.