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INTERNATIONAL COMMUNITYInternational C ommunity

LAW REVIEW 17 (2015) 68-94 Law R eview

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Effective Application of the Rule on Fundamental Change of Circumstances to Treaties Contravening the 1997 Polish Constitution

Karol Karskim .l ., m .a ., Ph.D., Dr. HabilAssistant Professor and Chair of Public International Law, Faculty of Law and Administration, University of Warsaw, Poland

kkarski@poczta. onet.pl

Tomasz Kaminskim .l ., Ph.D.Assistant Professor of Public International Law, Faculty of Law and Administration, University of Warsaw, Poland

t.kaminski@wpia. uw. edu. pi

Abstract

A fundamental change of circumstances is one of the more controversial reasons for the termination of a treaty. The fact that it was included in the 1969 Vienna Convention on the Law of Treaties gave rise to many disputes among legal scholars, including whether the solutions adopted then embodied customary law. In this context, an interesting case is offered by Poland which in 1999 invoked specific provisions of the Convention, both substantive and procedural, including a fundamental change of circumstances, and considered several treaties from the period of Soviet domination terminated with retroactive effect from 1997. The article discusses actions by the states involved and their legal effects. Interestingly, this is one of very few examples where a fundamental change of circumstances was an effective reason for bringing about the termination of treaties in a manner that has not drawn any objections nor has brought about any international accountability.

Keywords

international law - law of treaties - fundamental change of circumstances - termination of treaties

© KONINKLIJKE BRILL NV, LEIDEN, 2015 | DOI 10.1163/18719732-12341295

EFFECTIVE APPLICATION OF THE RULE 6 9

1 Introduction

A fundamental change of circumstances as a reason for the termination of a treaty is provided for in Article 62 of the Vienna Convention on the Law of Treaties of 1969 (v c l t ).1 It appears, however, that it can be claimed that the article should be taken to be a more accurate and modern wording of the centuries-old clause rebus sic stantibus. For it is worth noting that the commentary by the United Nations (u n ) International Law Commission ( i l c ) on the draft article devoted to a fundamental change of circumstances directly refers to the ancient clause, stating that .. almost all modern jurists, however reluctantly admit the existence in international law of the principle with which this article is concerned and which is commonly spoken of as the doctrine of rebus sic stantibus".2 The il c continued to maintain that the majority of jurists were of the opinion that because of the security of treaties the rule should be given a narrow meaning and be accompanied by a detailed list of reasons justifying its invocation. The commentary also stressed that a precise wording of the clause was crucial because no obligatory system of international judicature was in place.3 Hence, it appears that the precision of the intended regulation was meant to end the abuse occasioned by the termination of treaties for political motives. An example of such abuse was the eager invocation of the clause by the Nazi regime to have Germany released from the restrictions imposed on it by the Versailles Treaty.4

2 Between Progressive Development and Codification:The Vienna Convention and Customary Law of Treaties

The redefinition of the clause was to be served, it seems, by the change of the name of this legal institution. Giving up the Latin name marked the beginning

1 1155 u .n .t.s . 331,8 i .l.m . 679.2 See, Commentary by the ilc on the final version of Article 59 of the draft Convention on the

Law of Treaties of 1966. It formed the basis for the discussion of the relevant issues at the Vienna Conference in 1968-1969 and was finally adopted with minor changes as Article 62 of the vclt. Sir Arthur Watts (ed.), The International Law Commission 1949-1998, vol. II - The Treaties, part 11 (1999) p. 759. See also, ilc Yearbook 1966, vol. 11, p. 257.

3 Malgosia Fitzmaurice, “Exceptional Circumstances and Treaty Commitments”, in D.B. Hollis (ed.), The Oxford Guide to Treaties (2012) pp. 612-615; Watts, supra note 2, pp. 759-760.

4 What is meant here, of course, is the unilateral repudiation of Articles 42 and 43 of the Versailles Treaty by Germany in 1936 (Le. remilitarization of the Rhineland) by invoking the clause under discussion; the repudiation was subsequently considered unlawful by the Council of the League of Nations. See, Maria Frankowska, Prccwo traktatdw (1997) p. 158.

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70 KARSKI AND KAMINSKI

of a new chapter in the history of application of the clause, degrading also any commentaries it had attracted over centuries to an auxiliary role. The change of its name and its inclusion in the v c l t have two other consequences; it appears necessary to interpret the new wording of the clause consistently with the interpretation rules laid down in the Convention itself and to apply procedural provisions defined in it. The application of the principles of construction of treaties laid down in the v c l t should in time contribute towards making the application of the modern wording of the clause more uniform.

It must be remembered in this context that the forgoing accords precedence to the text of a treaty over the intention of the parties. The latter is treated in the Convention primarily as one of the supplementary means of interpretation. It should not be forgotten, however, that the element of intention is present also in the general rules of interpretation. Article 31(2) of the v c l t provides that, in interpreting a clause of a treaty for the purpose of defining its context, the following should be taken into account:

• any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty, and

• any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

Hence, the context of a clause subject to interpretation is a very broad concept while the intention of the parties to a treaty is of primary importance in its determination. Moreover, under Article 31(2), intention should be manifested in an objective way by ‘treaty-related’ documents.

In turn, subjecting the application of this legal institution to common procedural rules may end the debate on its character as a unilateral act by making the effectiveness of invoking the v c l t , Article 62, dependent on taking advantage of procedures prescribed by the Convention. The procedures are, in principle, consistent with the idea that has been furthered since the London Declaration of 1871.5 Namely, in the light of the v c l t , Articles 65 and 66, the invocation of a fundamental change of circumstances neither allows a party to consider automatically a treaty terminated nor to withdraw from a treaty or

5 The Declaration said: “that it is an essential principle of the Law of Nations that no power can liberate itself from the engagements of a Treaty, nor modify the stipulations thereof, unless with the consent of the Contracting Powers by means of an amicable agreement”. See, Sir Augustus Oakes and Robert B. Mowat (eds.), The Great European Treaties o f the Nineteenth Century (1918) p. u.

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even to suspend it. A party making such a claim should notify the other parties to the treaty of it and only if they do not raise any objection may the party take action provided for in the Convention. The time limit for raising objections should not be, with the exception of particularly urgent cases, shorter than three months. The lodging of an objection should make the parties search for a solution to the contentious situation. The v c l t does not provide, however, for a mandatory procedure for settling disputes with an effect binding on parties. This, accompanied by the potential unwillingness of the parties to cooperate, may end in stalemate. Meanwhile, the very introduction of procedural provisions into the draft Convention was considered, in the light of the international situation prevailing at that time, a valuable step forward by the il c .6 It must be emphasized that the decisions of international courts clearly show that the ‘procedural’ provisions are not considered a codification of customary law and, as such, are not binding on the countries that are not parties to the v c l t .7

It must also be observed that the v c l t does not answer the question of whether the country invoking a fundamental change of circumstances may suspend the performance of a treaty if the other parties limit themselves to raising objections to the claim and decline any cooperation in order to solve the problem. For the other party cannot be forced to cooperate, although countries - parties to a treaty - are supposed, in accordance with the principle pacta sunt servanda (Article 26 of the v c l t ), to perform treaty obligations in good faith. The Convention, however, is silent on this question. It appears that in such a situation any determination binding on the parties could, within the u n system, appear only if the dispute arising around a given treaty would be considered a threat to international peace and security by the u n Security Council.

6 Watts, supra note 2, p. 772.7 For instance, the ecj in re Racke GmbH & Co. v. Hauptzollamt Mainz (C-162/96) found that

“the procedural requirements stipulated in the vclt, Article 65, do not form part of international customary law”, while the icj, in the decision handed down in 2006 in the case Congo v. Ruanda concerning military activities in the territory of the Congo stressed that rules contained in Article 66 of the vclt are not declaratory of customary international law. A. Racke GmbH&Co. v. Hauptzollamt Mainz (C-Z62/96'), Judgment of the Court (ec j), 16 June 1998, ecr 1998, p. 1-03655; Armed Activities on the Territory o f the Congo (New Application: 2002) (Democratic Republic o f the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, 3 February 2006,1. c.j. Reports 2006, para. 125, p. 52. See, Fitzmaurice, supra note 3, pp. 622- 624; Tomasz Kaminski, Niewaznosc traktatu w swietle art. 46 konwencji wiedehskiej z 1969 roku a progresywny rozwdj prawa migdzynarodowego, in Z. Galicki, T. Kaminski, K. Myszona- Kostrzewa (eds.), 40 lat minglo - praktyka i perspektywy Konwencji Wiedehskiej 0 prawie traktatow (2009) pp. 189-190.

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The possibility of the unilateral repudiation of a treaty when no cooperation is forthcoming from the other countries - parties to the treaty - has been discussed by legal scholars. This concept, after all, echoes the original version of the clause. However, already before the v c l t was drafted, in a textbook by Lassa F. L. Oppenheim and edited by Sir Hersch Lauterpacht, we can find a hint that in the situation in question, a country could declare that it did not consider itself bound by the treaty provided, however, that the invoking of a fundamental change of circumstances would be accompanied by an offer to refer the dispute to a court of law for determination.8 This opinion was shared also by Gyorgy Haraszti, who approved of a unilateral action by states only as a measure of last resort when negotiations failed. He was right in pointing out that denying a country the right to unilaterally consider a treaty suspended or terminated would be at odds with the very essence of the clause.9 This question, however, calls for further and deeper analysis and cannot change the fact that the absence of relevant regulations from the v c l t should be considered its shortcoming, opening space for arbitrary solutions in international practice.

It must be stressed that the i l c , approaching the analysis of the doctrine rebus sic stantibus, tackled a theory which boasted almost a thousand years of tradition.10 The situation was made even more complex by close ties between the doctrine and the policies of countries seen in the frequent use of this measure in an incautious manner, which resulted in its fuzziness, attracting often radically different views over the centuries.

On top of that, the doctrine rebus sic stantibus has stirred intense emotion in scholars. This can be illustrated by a comment from James L. Brierly, a professed opponent of the doctrine, who strongly maintained that if a treaty

8 Sir Hersch Lauterpacht (ed.), Lassa F. L. Oppenheim, International Law. A Treatise, vol. i - Peace (8th ed., 1958) p. 942.

9 Gyorgy Haraszti, Treaties and the Fundamental Change o f Circumstances, 146 Recueil des Cours de lAcademie de Droit International (1975), p. 85. See also, Tadeusz Jasudowicz, Wpfyw zmiany okolicznotici na obowiqzywanie um&w miqdzynarodowych. Norma rebus sic stantibus (1977) p. 28.

10 James Gordley dates the beginnings of the doctrine to the Decrees of Gratian of U40 who, discussing the question of deposit, quotes St. Augustine who “... following Cicero, said that one need not keep a promise to return a sword to a person who has become insane”. There was also an explanation added in the Decretum stating that “... this condition is always understood: if matters remain in the same state”. James Gordley, Impossibility and Changed and Unforeseen Circumstances, 52 American Journal o f Comparative Law (2004) p. 525. Mark E. Villiger in his commentary on the vclt suggests the second half of the 12th century and works of St Thomas Aquinas. Mark E. Villiger, Commentary on the ig6g Vienna Convention on the Law o f Treaties (20og) pp. 766-767.

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became too onerous due to changes occurring in the world, countries should seek solutions together, adjusting the treaty to the new situation. He also observed that .. law is bound to uphold the principle that treaties are to be observed”, and continued that even if because of political motives states do treat treaties .. as a ‘scrap of paper’, we must not invent a pseudo-legal principle to justify such action". He therefore stressed that “... the remedy has to be sought elsewhere, in political, not in juridical action”.11

In contrast, Sir Hersch Lauterpacht was in favour of a limited admissibility of the use of the doctrine when an unforeseen and fundamental change of circumstances occurred. Then, in his opinion, a state “... should have a right to demand to be released from the obligation" and this demand is supposed to lead to negotiations with the remaining parties of the treaty concerned.12

Among Polish legal scholars, fears as to the application of the clause were expressed at that time by Cezary Berezowski. He questioned the status of the clause as an institution of universal international law, claiming that

it is difficult to defend this view because it leads to the conclusions that stand in direct contradiction to the principle of keeping accepted international obligations while leaving the assessment whether a fundamental change of circumstances has occurred, in which the treaty was concluded, to the state applying the clause may lead to arbitrary determinations.13

The decision of the il c to drop the phrase “rebus sic stantibus clause” from both the title and body of the draft article in favour of “a fundamental change of circumstances" was, therefore, the outcome of disagreement between legal scholars and the practice of states. The il c argued that the clause provided a safety valve by offering a way to amend treaties the provisions of which became excessively onerous for one of the parties, thereby safeguarding against extra- legal solutions. The Commission came to the conclusion, however, that the legal fiction assuming that every treaty contained an ‘implied condition’ of constancy of circumstances increased the risk of subjective interpretation and abuse. The remedy suggested by the Commission was an objective legal rule, stipulating precise conditions which ought to be fulfilled prior to invoking a

11 Humphrey Waldock (ed.), James L. Brierly, The Law o f Nations: An Introduction to the International Law o f Peace (6th 1963) p. 339.

12 Oppenheim, supra note 8, pp. 939-942.13 Cezary Berezowski, Prawo migdzynarodowe publiczne, vol. 11 (1969) p. 130.



given vc l t article for the purpose of terminating a treaty.14 This view was criticized by Oliver J. Lissitzyn, who argued that the rule contained too many vague concepts and maintained in conclusion: "... in seeking to escape from the unnecessary fiction of an ‘implied term’, the Commission found itself embracing another fiction - that of an ‘objective rule of law.’ ”15 Interestingly enough, the remedy offered by the Commission has some advantages. The radical move away from the accumulated opinions of legal scholars and the practice of states allowed the Commission to develop the rule as if from scratch and seek a solution acceptable to all interested parties.

Hence, Article 62( 1) of the v c l t acknowledges a fundamental change of circumstances to be an admissible reason for considering a treaty terminated or for withdrawing from, or suspending it. This, however, is possible only in exceptional situations if the following conditions are jointly met: the change of circumstances is ‘fundamental’ and was not foreseen by the parties; the existence of the circumstances that were subsequently changed was an important reason why the parties consented to be bound by the treaty; and the change brought about a radical modification of the obligations that still remain to be performed under the treaty. Moreover, even if the above conditions are met, a party may not invoke a change of circumstances in the case of treaties establishing a boundary or when the fundamental change results from a breach of the treaty, an obligation following from it or any other international obligation owed to any other party to the treaty by the party invoking the change.

The International Court of Justice (i c j ) has examined facts in two cases so far with regard to their compliance with the v c l t , Article 62. In both, i.e. in the judgment in Fisheries Jurisdiction Case (United Kingdom v. Iceland) of 197316 and in the judgment concerning dams on the Danube, Gabcikovo-Nagymaros Project (Hungary/Slovakia), of 1997,17 the Court did not find the facts in these cases to constitute a fundamental change of circumstances within the meaning of the v c l t . Commenting in the first judgment on the scope of the relevant clause, the Court emphasized two basic conditions, justifying the invocation of the principle defined in it. According to the first, a fundamental change must

14 Watts, supra note a, p. 763.15 Oliver J. Lissitzyn, Treaties and Changed Circumstances (Rebus Sic Stantibus), 61 American

Journal o f International Law (1967) p. 922.16 FisheriesJurisdiction Case {United Kingdom v. Iceland), Jurisdiction o f the Court, Judgment,

2 February 1973, i .c.j . Reports 1973, para. 40, pp. 19-20.17 Gabcikovo-Nagymaros Project {Hungary/Slovakia), Judgment, 25 September 1997, i.c.j.

Reports 1997, para. 40, pp. 19-20.

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involve the circumstances that prevailed when the treaty was concluded.18 Secondly, in the opinion of the ic j , a change of circumstances, even a fundamental one, is not enough. It is also necessary “that it should have resulted in a radical transformation of the extent of the obligations still to be performed. The change must have increased the burden of the obligations to be executed to the extent of rendering the performance into something essentially different from that originally undertaken”.19 Moreover, it is this element that seems crucial for the whole concept; for it involves not only a far-reaching and unforeseen change of circumstances, but in the first place its effects, namely a change in the extent of obligations still to be performed under a given treaty.

To sum up, it can be claimed that the modem version of the clause adopted in the v c l t and referred to as a fundamental change of circumstances restricts the application of the doctrine rebus sic stantibus in favour of the principle pacta sunt servanda.

3 A Fundamental Change of Circumstances and Treaties Contravening the 1997 Polish Constitution

Curiously enough, an interesting instance of the application of the clause on a fundamental change of circumstances can be encountered in the recent treaty practice of the Republic of Poland. The case in point involves the implementation of Article 241(2) of the Constitution of the Republic of Poland which entered into force on 17 October 1997.20 This provision directed the Council of Ministers to present to the Sejm, within two years of the Constitution’s coming into force, a list of treaties containing provisions in contravention thereof. As a result, five treaties were selected that contained provisions not in conformity with the Constitution. These were:

(1) Agreement between the Polish People’s Republic and the Union of SovietSocialist Republics on Cultural and Scientific Cooperation signed at Moscow on 14 December 197021

18 1. c.j. Reports 1973, para. 37, p. 19.ig Ibid., para. 43, p. 21.20 J. of Laws, No. 78, item 483 as amended.21 J. of Laws of 1971, No. 22, items 203 and 204.

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(2) Agreement between the Government of the Polish People’s Republic and the Government of the Mongolian People’s Republic on Cultural and Scientific Cooperation signed at Warsaw on 18 February 197422

(3) Agreement between the Government of the Polish People’s Republic and the Government of the Laotian People’s Democratic Republic on Cultural and Scientific Cooperation signed at Vientiane on 18 September 197923

(4) Agreement between the Government of the Polish People’s Republic and the Government of the Kampuchean People’s Republic on Cultural and Scientific Cooperation signed at Warsaw on 6 August 198424

(5) Agreement between the Government of the Polish People’s Republic and the Government of the Republic of Cuba on Cultural, Educational and Scientific Cooperation signed at Warsaw on 17 June 1987.25

Other treaties - apart from those named above - were not put on the list sent to the Sejm by the Council of Ministers 26 Commenting on the selection, Renata Szafarz observed that the defect of contravention of the Polish 1997 Constitution affected a surprisingly small number of treaties ratified by the Polish People’s Republic.27 It must be noted, however, that once there were many more, but they had terminated earlier owing to efforts undertaken by Poland and other former socialist countries. They terminated or did not prolong the validity of the treaties that were incompatible with the new reality. This fact was strongly emphasized in the reply of the Polish Ministry of Foreign Affairs to the interpellation of 7 March 2006. The reply said that already at the time of adoption of the Constitution

... a number of international agreements that could have been found to be in contravention of its provisions did not bind the Republic of Poland anymore. Therefore the review covered the treaties, still valid when the Constitution entered into force, that had been ratified with consent granted by statute between 1990 and 1997 and earlier ones ratified by

J. of Laws of 1974, No. 34, items 197 and 198.J. of Laws of 1985, No. 34, items 154 and 155.J. of Laws of 1985, No. 34, items 156 and 157.J. of Laws of 1988, No. 31, items 220 and 221.See, Informacja Rady Ministrow w sprawie przeglqdu zgodnosci umow migdzynarodowych z Konstytucjq Rzeczypospolitej Polskiej z dnia 2 kwietnia Iggy r., Sejm Rzeczypospolitej Polskiej, ill kadencja, Doc. 1413,23 September 1999, pp. 3-4.Renata Szafarz, “Umowy miqdzynarodowe niezgodne z Konstytucjq Rzeczypospolitej Polskiej”, in E. Halizakand R. Kuiniar (eds.), Prawo, instytucje ipolitykaw procesieglobali- zacjL Ksiqgajubiteuszowa dedykowana ProfesorowiJanuszowi Symonidesowi (2003) p. 56.

22

2324

2526

27

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Poland pursuant to the regulations in force on the day of their ratification, which by virtue of Article 241(1) of the Constitution were considered treaties ratified with prior consent granted by statute.28

For the said article of the Constitution put on an equal legal footing treaties ratified by the Republic of Poland prior to the entry into force of the 1997 Constitution pursuant to the then valid constitutional regulations and promulgated in Dziennik Ustaw (Journal of Laws) with treaties ratified with prior consent granted by statute. The same article directed that the provisions of Article 9 of the Constitution, Article 91,29 be applied to these treaties if their contents showed that they were concerned with matters enumerated in Article 89(1) of the Constitution, i.e. those for the ratification of which the President must obtain prior consent granted by statute.

The Ministry of Foreign Affairs explained further that:

By 1997, the process of overhauling Poland’s system of internal law and international agreements was already well advanced. Since the time of the political and social transformations of 1989-1990, a review of treaties had been continued. It involved taking appropriate steps to end the legal existence of the Warsaw Pact and c o m e c o n and the obligations of the Republic of Poland following from the membership in these organizations. By the time of presenting to the Sejm a list of agreements contravening the Constitution, negotiations were ended and agreements were signed concerning the validity of individual agreements with the People’s Republic of China, the Czech Republic, Croatia, Mongolia, Slovakia and Slovenia.30

With the Federal Republic of Germany, matters related to the treaty succession to the former German Democratic Republic (g d r ) were regulated. For these

28 The reply of Rafal Wisniewski, Undersecretary of State in the Ministry of Foreign Affairs, Republic of Poland, given with the Minister’s authorization to a deputy’s interpellation (no. 1508) concerning the manner of termination of international agreements contravening the Constitution of the Republic of Poland. 31 March 2006, Doc. Mj-023-1509/2/06, in Sprawozdanie stenograficzne z 16. posiedzenia Sejmu Rzeczypospolitej Polskiej w dniach 25, 26 127 kwietnia 2006 r., Aneks, Part 2 (2006) p. 418.

29 Including the provisions of its para. 2 providing for the precedence of such treaties over a statute if the latter cannot be reconciled with a given treaty.

30 The reply of Rafal Wisniewski, supra note 28, p. 418.



reasons, the Council of Ministers presented to the Sejm only five treaties contravening the Polish Constitution.

As Renata Szafarz found, the treaties put on the list sent to the Sejm contained in both their preambles and provisions references to:

at least some of the following elements: principle of Marxism-Leninism, proletariat-socialist internationalism, building of socialism/commu- nism, cooperation between socialist/communist parties, strengthening the unity of the countries belonging to the socialist community, active counteracting the infiltration by bourgeois ideology

What is even worse, these elements were meant to “determine the interpretation and performance of respective international agreements”.31 The Ministry of Foreign Affairs further stressed:

It must also be noticed that the scope of obligations imposed by these agreements was closely tied to the implementation of the socialist model of economy and society. The objects of the agreements were defined as, for instance, ‘mutual assistance in the building of socialism’, ‘education of citizens in the spirit (...) of socialist internationalism and patriotism’, ‘active counteracting the infiltration by bourgeois ideology’.32

As Renata Szafarz rightly added:

All these elements are at odds with the principles and values underpinning the 1997 Polish Constitution and contradict its axiology. (...) In particular, the Council of Ministers was right to consider these elements to contravene the Constitution, Article 2, according to which the Republic of Poland is ‘a democratic state ruled by law and implementing the principles of social justice’. They were also found to contradict the preamble and other constitutional provisions: Articles: 13, 20, 22, 25(2), 53(1) and 54(i)-33

31 Szafarz, supra note 27, p. 54.32 The reply of Rafai Wisniewski, supra note 28, p. 418.33 Ibid. To show the special character of these treaties, concluded in the past in reliance

on the ideology of Marxism-Leninism, it suffices to quote a fragment of the agreement with the USSR of 1970, which in its Article 4 in Jine read that the parties undertook to “to systematically agree the academic material contained in literature, history and geography textbooks in chapters concerning both countries”. The performance of this

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The next step, after finding these treaties to be unconstitutional, was taking measures to terminate them by invoking the v c l t , Articles 61, 62 and 65. A relevant decision was undertaken by the Council of Ministers on 14 September 1999, but in accordance with the Government Declaration on the loss of binding force by some international agreements of 30 May 2001, these treaties “lost their binding force as of 17 October 1997”,34 i.e. as of the day the Constitution came into force. Thus, in the light of the Declaration, the treaties terminated in a rather unusual manner, because they did so retroactively.

While discussing these efforts, a thought should be given to how far Poland was justified in invoking the v c l t as a legal basis for its actions. For the Convention, in its Article 4, clearly states that its provisions are to be nonretroactive by providing that it should be applicable only to “treaties which are concluded by States after the entry into force of the present Convention with regard to such States”. A certain way out, allowing a country to apply the provisions of the v c l t to treaties concluded earlier, could be the phrase used in the first part of Article 4, saying that the rules laid down in the Convention can be applied to such treaties if it can be shown that they are applicable independently of the v c l t . Hence, what this reasoning involves is the application not of a specific provision of the v c l t but rather a legal rule encoded in it, provided that this rule is faithfully reflected in another provision, binding on the states in question. It appears that this kind of reasoning might be present in the case under discussion.

The list of agreements considered terminated shows that they were concluded on various dates, beginning with the Agreement with the Union of Soviet Socialist Republics (u s s r ) of 1970 and ending with the Agreement concluded with Cuba in 1987. The crucial fact is that none of these states, including Poland, was a party to the vc lt at the time the treaties were concluded.35 This,

provision “in the spirit of Marxist-Leninist ideology” left these textbooks with many ‘blank pages’ or downright distortions of history.

34 Government declaration on the loss of binding force by some international agreements of 30 May 2001 (J. of Laws, No. 143, item 1602).

35 The vclt entered into force on 27 January 1980, but Mongolia filed a document giving consent to be bound by it on 16 May 1988, USSR - on 29 April 1986, Laos - on 31 March 1998, Cuba - on 9 September 1998, and Poland - on 2 July 1990, while Cambodia has not become party to the Convention yet See, Szafarz, supra note 27, p. 55. One must not forget in this context that the ussr had ceased to exist by 1997. Its continuator under international law is the Russian Federation while its successors include 11 other states. Belarus and Ukraine, which are among the successors of the ussr and at the same time are continuators of the Belorussian ssr and Ukrainian SSR, filed documents giving consent to be bound by the vclt on, respectively, 1 May 1986, and 14 May 1986. Karol Karski,


8o KARSKI AND KAMINSKI

as the reader may remember, in the light of its Article 4, precludes invoking its rules for the purpose of justifying one’s actions. In this situation, one can hardly fail to agree with Renata Szafarz who maintains that ‘under a normal procedure’ the provisions of the v c l t appear not to apply to the treaties under discussion. In this situation, the only reasonable solution, as in our opinion Renata Szafarz is right to point out, is to assume that the consent of the respective other parties of the treaties both to apply the provisions of the v c l t and to consider the treaties terminated with a retroactive effect, was obtained in an extraordinary manner.36

In the opinion of the present authors, the unconstitutionality of the treaties is not an object of contention in so far as the advisability of bringing about their termination does not give rise, in principle, to any doubts. Two other issues, however, need to be scrutinized. First, whether from the unconstitutionality of the treaties there automatically followed a need to have them terminated without delay and, what is even more unusual, with retroactive effect. Second, it is worth having a closer look at the correctness of choosing the v c l t provisions named by Poland as the legal grounds for having the treaties terminated.

The answer to the first question does not seem to pose any major difficulties. The Legislative Council, a consultative and advisory body attached to the Prime Minister, in an interpretation of the Constitution, Article 241(2), issued on 12 February 1998, found that the said article “imposed on the Council of Ministers a duty, which must be discharged within 2 years of the Constitution’s entering into force” on pain of being held constitutionally accountable.37 The next sentence seems to be crucial for the m atter at hand as the Legislative Council says that the article “does not (...) provide for any legal consequences of the lapse of the two-year term for the validity of the international agreements to be subject to review”.38 It was the duty of the Cabinet, it should be noted, to present to the Parliament a list of treaties contravening the Constitution within 2 years and not to have them terminated within this time limit.

“Kontynuacja prawnomi^dzynarodowej podmiotowosci zsrr i jego cz^sci skiadowych przez panstwa istniej^ce na obszarze postradzieckim”, xlv Studia luridica (2006) pp. 74-101 [on international legal relations holding between the USSR and the countries existing now in the post-Soviet space],

36 Szafarz, supra note 27, p. 56.37 Opinia Rady Legislacyjnej przy Prezesie Racfy Ministrdw z dnia 12 Lutego 1998 roku w

sprawie wyktadni art 241 ust. 2 Konstytucji r p , published as an attachment to Informacja Racfy Ministrdw w sprawie przeglqdu zgodnokci umdw mfydzynarodowych z Konstytucjq Rzeczypospolitej Polskiejz dnia 2 kwietnia I997 r., supra note 26, p. 5.

38 Ibid.


EFFECTIVE APPLICATION OF THE RULE 8 l

The stance taken by the Legislative Council is consistent with the principle of international law holding that no internal law of a country, including its constitution, can be invoked to justify a failure to perform international obligations.39 Hence, Article 241(2) of the Constitution obliged the Council of Ministers to draw up a list of treaties contravening the Constitution and consequently the Council of Ministers did fulfil the obligation. Later actions to have these treaties terminated with retroactive effect followed a political decision made by the Council of Ministers, for each of these treaties found to contravene the Constitution provided for their dissolution. They were concluded for a definite time: with Kampuchea (Article 12), Laos (Article 11) and Cuba (Article 22) - for 5 years, while with Mongolia (Article 18) and the u s s r

(Article 21) - for 10 years. They also contained prolongation clauses providing for their automatic extension for further five-year periods, unless a party terminated them by giving six months’ notice prior to the lapse of a period. The choice of track leading to their termination was, therefore, a political decision as indicated above. They could have been easily terminated by notice in accordance with their provisions as successive deadlines for termination arrived. What happened instead was more spectacular but far more risky. So far, the chosen track has actually turned out to be effective to all intents and purposes but it may give rise to doubts about the legal justification of the actions undertaken.

The Government Declaration of 30 May 2001, referred to above, concerning the loss of binding force of some international agreements invokes three articles of the v c l t : Articles 61 and 62, as to the merits of actions undertaken, and Article 65 as to the procedure. Thus far, however, as the reader may remember, due to the issue of the moment when the v c l t entered into force for respective countries, the question remained open why a decision was made to invoke the provisions of the Convention in the first place.

Of the possible ways out of the problem suggested above, the Polish Ministry of Foreign Affairs chose a dubious one. The Ministry stated that “according to the widely accepted view among scholars engaged in public international law, the Vienna Convention on the Law of Treaties is a codification of customary law related to the law of treaties”, hence to matters:

not covered by the Convention and in respect of agreements concludedbefore the Convention entered into force for specific states and in respect

39 Article 27 vclt. See also, Treatment o f Polish Nationals and Other Persons o f Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 4 February 1932, p .c .i .j . Publ., Ser. A/B, No. 44, p. 24.



of the States that are not parties to the Convention, the rules of customary law are applicable of which the Convention is declaratory and which are clarified by it.40

It must be stressed yet again that at the time of its adoption the provisions of the v c l t were not entirely a codification of customary law. Interestingly, Karol Wolfke in a study published in 1972, i.e. soon after the adoption of the v c l t ,

having thoroughly analyzed this question, concluded that “likewise in previous codification conventions, at best one-fourth of articles may be considered a codification of international law and that not without doubts with respect to some of them” and added that Sir Hersch Lauterpacht “one of the special rapporteurs on the law of treaties counts among established rules in this field only the rule pacta sunt servanda".*1 It appears, however, that the position taken by Poland should be understood as an opinion in the debate on the later so-called ‘customarization’ of v c l t provisions, which is likely to advance with time and the broad application of the provisions, including also to relations between countries which are not parties to the Convention.

Because of the controversial nature of the clause on a fundamental change of circumstances, it is appropriate to consider here to what extent it was justified, not only from the already analyzed formal angle but also the substantive one, for the Polish Government to invoke the v c l t provisions on a fundamental change of circumstances (Article 62) as grounds for the termination of the bilateral agreements listed above.

Moving to the interpretation of reasons justifying the termination of the treaties by invoking Article 62 of the v c l t , it must be observed that the Polish Ministry of Foreign Affairs' line of reasoning began with the change of the political and economic system in Poland in 1989-1990 that “was confirmed by the adoption of a new Constitution” and “was a sufficient reason justifying the invocation of both Article 61 and the clause of Article 62 of the Convention”.42 Hence, the change of the political system was believed to be sufficient reason for making these treaties expire; they were strongly tied to the previous system and had not been terminated or amended in the early years of the transformation.

First, with reference to Article 62 of the v c l t , we should search for the source of this rule in customary law. As the reader may remember, Poland

40 The reply of Rafal Wisniewski, supra note 28, p. 419.41 Karol Wolfke, Rozwoj i kodyfikacja prawa migdzynarodowego. Wybrane zagadnlenia z prak-

tyki ONZ (1972) p. 37.42 The reply of Rafal Wisniewski, supra note 28, p. 418.



argues that the v c l t rules i t invokes are declaratory of the rules of customary law. Actually, it must be admitted that on this issue there are solid grounds to believe that the clause rebus sic stantibus has a customaiy nature.

The proof quoted most often is the opinion of the i c j included in the 1973 judgment cited earlier (.Fisheries Jurisdiction Case). According to the Court:

This principle, and the conditions and exceptions to which it is subject, have been embodied in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects be considered as a codification of existing customary law on the subject of the termination of a treaty relationship on account of change of circumstances.43

It thus appears that because of a new approach to the principle rebus sic stantibus seen in the provisions of the v c l t , accompanied by a change of the name of this legal institution, the Court found it difficult to authoritatively maintain that they were a manifestation of the codification of customary law. Curiously enough, twenty-odd years later, in 1997, in the case of dams on the Danube referred to above (Gabctkovo-Nagymaros Project), the i c j applied v c l t ,

Article 62, to a treaty concluded before the article entered into force without studying again this legal issue, simply reiterating the view presented in 1973 (.Fisheries Jurisdiction Case).44

It does not seem at all certain that the above position taken by the icj was tantamount to an unconditional acceptance and the Court’s complete certainty about the legal rule being entirely based on customary law. In the opinion of the present authors, the Court’s failure to use a peremptory style shows that it intended to leave space for future determinations. This also justifies the claim that at the time of adopting the v c l t , Article 62 was an effect of both the codification of international law and its progressive development. It must be stressed, however, that this observation does not preclude the possibility that a form of ‘customarization’ affected those provisions of the v c l t that at the time of its adoption did not reflect the state of customary law. In addition,

43 I.C.J. Reports 1973, para. 36, p. 18. See, Malgosia Fitzmaurice, “The Practical Working of the Law of the Treaties”, in M.D. Evans (ed.), International Law (2003) pp. 198-199; Malgosia Fitzmaurice, Olufemi Elias, Contemporary Issues in the Law o f Treaties (2005) p. 179.

44 I.C.J. Reports 1997, para. 104, p. 64. Interestingly enough, Anthony Aust says that the ic j “applied its Articles 60-62 as generally reflecting customary law, even though previously they had been considered somewhat controversial”. Anthony Aust, Modem Treaty Law and Practice (2003) p. 13. See also, Fitzmaurice, supra note 43, p. 199; Fitzmaurice, Elias, supra note 43, p. 180.


8 4 KARSKI AND KAMINSKI

the v c l t is now ever more often considered as a list of binding customary law rules,45 owing to the continuously growing number of countries - parties to the Convention (at present, 113 countries are parties to the Convention).46 What is more, it seems now that it is the opposite claim that requires to be proven.47

Arguments in favour of the ‘customarization’ of v c l t provisions on a fundamental change of circumstances are also supplied by the decisions of the European Court of Justice (e c j ), which in the case Racke GmbH & Co. v. HauptzoLiamt Mainz (C-162/96) justified its invocation of the v c l t , Article 62, in the situation where neither the European Communities nor all their member states were parties to the v c l t , by considering the said article an embodiment of customary law.48 The same line of reasoning was followed, it seems, by the Polish Ministry of Foreign Affairs. Time will show if the reasoning was right.

There is yet another detailed question related to the v c l t , Article 62, worth discussing, which shows that its drafting involved not only an element of codification but also progressive development of the rule under discussion. This is the point that may distinguish the earlier practice of countries (possibly a rule of customary law) from the wording of the v c l t provision, namely an observation by the il c which stated that in the past “jurists frequently restricted the application of this rule to so-called perpetual contracts or those which lacked any termination provisions”.49 Interestingly enough, in the course of work on

45 In favour of considering the vclt, Article 62, an embodiment of customary law argued, among others, Maria Frankowska: “Thus the Convention is applied by the countries being a party to it in two ways: with respect to the other parties to the Convention as a treaty and in respect of the countries that are not a party to it as a code of customary law rules [...]. In this way, with time, 40 years is a long time, with the growth of the number of countries - parties to the Convention, the rules of customary law of treaties are consolidated and strengthened in the form they were formulated in the Convention”. Maria Frankowska, “Konwencja wiederiska o prawie traktatow z perspektywy 40-lecia”, in Galicki, Kaminski, Myszona-Kostrzewa (eds.), supra note 7, p. 29.

46 As on 19 October 2013.47 See, Kaminski, supra note 7, p. 190.48 See generally, Frank Hoffmeister, “Die Bindung der Europaischen Gemeinschaft an das

Volkergewohnheitsrecht der Vertrage”, 10 Europaisches Wirtschafts- und Steuerrecht (1998) PP- 365-371; Andrea Filippo Gagliardi, “The right of individuals to invoke the provisions of mixed agreements before the national courts: A new message from Luxembourg?”, 24 European Law Review (1999) pp. 276-292; Juliane Kokott, Frank Hoffmeister, A Racke GmbH & Co. v. Hauptzollamt Mainz, 93 American Journal of International Law (1999) pp. 205-209.

49 Watts, supra note 2, p. 763.



the draft of the Convention this view was presented by the third rapporteur of the Commission, Sir Gerald Fitzmaurice, who maintained in his report submitted in 1957 that the clause could be applied only “in the case of treaties not subject to any provision, express or implied, as to duration” and added that the principle concerned “finds its sphere of application mainly in the field of bilateral treaties”.50

Finally, the Commission did not agree to such a restriction of the application of the clause and claimed that it was not supported by the practice of states. It did observe, however, that the clause on a fundamental change of circumstances would “for obvious reasons be applied rarely if at all” to treaties concluded for a definite period of time or others that would provide for their termination by notice.51 This was the case, as the reader may remember, with the treaties found to contravene the 1997 Polish Constitution.

While analyzing the stance of the Polish Ministry of Foreign Affairs on the admissibility of invoking the v c l t , Article 62, one cannot fail to quote a fragment of an icj judgment quoted by the Ministry as a key proof of legality of actions undertaken to have the treaties binding on Poland terminated. This is a fragment of the already cited 1973 ic j judgment (Fisheries Jurisdiction Case) finding that: “[Cjhanges in the law may under certain conditions constitute valid grounds for invoking a change of circumstances affecting the duration of a treaty”.52 Unfortunately, it does not appear that the quotation was appropriately adduced by the Polish Ministry of Foreign Affairs, which observed that the ic j “admitted a possibility of invoking Article 62 of the Convention in relation to changes in the law of a party”.53 In this light, the change of a constitution of a state supposedly constituted a fundamental change of circumstances, which, no doubt, was not foreseen by the parties at the time the bilateral agreements binding on Poland were concluded, and thus permitted the application of the v c l t , Article 62.

Admittedly, the logic of this reasoning can hardly be questioned but it is unfortunately based on wrong premises. It is true that the ic j judgment

50 Law of treaties, Second Report by G. Fitzmaurice, Special Rapporteur, Doc. A/CN.4/107, in ILC Yearbook 1957, vol. 11, p. 32.

51 Watts, supra note 2, p. 385. A similar comment on this question is offered by Anthony Aust who says that the Commission did not restrict, despite suggestions from the legal community, the application of the principle to treaties concluded for an indefinite period of time, but it did note a narrow possibility of invoking the said article in the case of treaties concluded for a definite period of time or containing termination clauses. Aust, supra note 44, p. 240.

52 I.C.J. Reports 1973, para. 31, p. 17.53 The reply of Rafai Wisniewski, supra note 28, p. 419.

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does mention major changes in the law but it has in mind international law. Attention to this fact has been drawn among Polish legal scholars by Maria Frankowska who says that in the cited judgment “the Court found that the concept of‘circumstances’, the fundamental change of which may give grounds for the termination of an agreement, comprises the rules of international law”.54

She continues: “in this specific case, changes in the law of the sea were meant; however, in the opinion of the Court, they did not constitute sufficient grounds for Iceland to consider the agreement with the United Kingdom terminated”.55

It must be stressed that using a quotation taken out of context to justify one’s claims and simply extending changes in international law, acknowledged by the ICJ, to cover changes in internal law appear to be neither justified nor praiseworthy. For it must be remembered that such an exception would be very revolutionary indeed in the ‘mouth’ of the icj as it would contradict a rule, laid down in the v c l t , Article 27, imposing a ban on invoking the provisions of internal law to release oneself from international law obligations.

Leaving aside the changes in internal law discussed above, we shall move now to ponder the issue of a fundamental change of circumstances involving a change of the socio-political system, on which Poland relied in its actions. Is this kind of change, certainly a very deep one, sufficient to invoke the clause on a fundamental change of circumstances in order to unilaterally withdraw from a treaty? There are no clear guidelines in this respect in the books of authority. From among contemporary authors, the opinion of Anthony Aust may be cited who says that:

... whether a change of policy by the government of one party would be enough would depend entirely on the circumstances, but certainly only if the effect were to alter fundamentally a circumstance which constituted an essential basis of the consent of the parties to the treaty.56

In this context, it is worth mentioning that the ecj in the case Racke GmbH & Co. v. HauptzoLlamt Mainz (0-162/96) found that the disintegration of Yugoslavia and the armed conflict continuing there nevertheless constituted a fundamental change of circumstances and justified suspending the performance of the agreement on cooperation between the European Communities and former Yugoslavia by the Council.57

54 Frankowska, supra note 4, p. 159.55 Ibid.56 Aust, supra note 44, p. 298.57 Anna Wyrozumska, Umowy miqdzynarodowe. Teoria ipraktyka (2006) pp. 455-456.



Further, very similar arguments to those presented by Poland in relation to the five agreements under discussion were used by the parties to the Protocol terminating the Warsaw Pact executed in Prague on 1 July 1991.58 The preamble to the Protocol reads that the parties to it have undertaken actions provided for in it “taking into account deep changes taking place in Europe, signifying an end to the confrontation and division of the continent”.59 It is noteworthy that even in this case, although facts in it were similar, the parties did not expressly invoke nor took advantage of the clause on a fundamental change of circumstances and the Warsaw Pact was dissolved upon an agreement of the parties. The parties took advantage of their position as ‘Masters of the treaty’.

Finally, it is worthwhile citing the opinion of the ic j in which the Court rejected arguments similar to those presented by Poland. These were raised by Hungary in the case of dams on the Danube. In the 1997 judgment concerning the Gabcikovo-Nagymaros Project, the Court did not find "profound changes of a political nature”60 to constitute a fundamental change of circumstances. Discussing at length the problem of political changes, the Court admitted that the political situation no doubt had a bearing on the conclusion of the treaty in 1977.61 It found, however, that the treaty provided for common projects aimed at production of electric power, control of river flooding and improvement of navigation on the Danube. Therefore, in the opinion of the Court, in this case the political situation was not so closely related to the objects and objectives of the treaty so as to constitute an essential basis of the consent of the parties to its conclusion. For the same reasons, a change of the situation would not lead directly to a radical transformation of the extent of obligations still to be performed under the treaty.62

58 Pact of Friendship, Co-operation and Mutual Assistance Between the Albanian People’s Republic, Bulgarian People’s Republic, Hungarian People’s Republic, German Democratic Republic, Polish People’s Republic, Romanian People’s Republic, Union of Soviet Socialist Republics, and the Czechoslovak Republic signed at Warsaw on 14 May 1995 (J. of Laws, No. 30, items 182 and 183) together with a Protocol for the Prolongation of the Pact of Friendship, Co-operation and Mutual Assistance signed at Warsaw on 14 May 1995 executed at Warsaw on 26 April 1985 (J. of Laws, No. 34, items 152 and 153).

59 Protocol executed at Prague on 1 July 1991, terminating the Pact of Friendship, Co-operation and Mutual Assistance signed at Warsaw on 14 May 1995 and a Protocol for its Prolongation signed at Warsaw on 26 April 1985 (J. of Laws of 1993, No. 61, items 289 and 290).

60 I. C.j. Reports 1997, para. 104, p. 64.61 Treaty Concerning the Construction and Operation of the Gabcikovo-Nagymaros System

of Locks, 16 September 1977 (Czechoslovakia-Hungary), 1109 u.n .t.s. 235.62 1. C.j. Reports 1997, para. 104, pp. 64-65.



Hence, the icj rejected the opinion concerning the impact of a change of state policies (even a radical one and affecting the entire socio-political system) on the effectiveness of a treaty which did not have exclusively political significance. How, then, would it assess similar arguments raised against agreements on cultural and scientific cooperation? This, we will probably never know. However, it is worth stressing that in the case at hand, the icj clearly stated that the stability of treaty relations required that Article 62 of the vclt be used only in exceptional cases.63 Thus, the Court reiterated the importance of the fundamental rule of the law of treaties, one that according to Sir Hersch Lauterpacht (the second rapporteur of the un ilc draff convention on the law of treaties) solely merited to be called a rule of customary law that holds simply that treaties should be observed.

Poland, as could already be noticed, in seeking to make the treaties it selected expire retroactively invoked not only Article 62 of the vclt. It also relied on its Article 61, claiming that a permanent situation had arisen barring their performance. The situation also involved a change of the socio-political system and the adoption of the new Constitution that was incompatible with them. This position shows that Poland believed the situation not only to be permanent but also that it did not result from a breach by Poland either of an obligation under the treaty or of any other international obligation owed to the other party to the treaty. Otherwise, Articles 61(2) and 62(2)(b) would directly bar Poland from invoking these reasons as grounds for demanding that the termination of the agreements be acknowledged.

Of course, no treaty can effectively prevent a country from changing its socio-political system and the constitution. If, however, such a conflict occurs, such treaties should be terminated by notice, renegotiated or otherwise have their import adjusted to domestic law. It remains questionable to invoke in such cases the two types of legal grounds: a fundamental change of circumstances and a rise of a situation frustrating the performance of a treaty, as reasons for demanding that its termination be acknowledged. After all, the conflict was brought about by the actions of Poland, regardless how positively - from the point of view of democratic principles, freedom and human rights protection - we would judge them.

Unfortunately, the above analysis seems to yield results that make the legal grounds on which the Polish government relied in its actions to have the five bilateral agreements mentioned earlier terminated look rather unfavourable. The more surprising fact, therefore, may seem that most likely - at least in part - these actions have proven effective. They consisted in:

63 Ibid.

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EFFECTIVE APPLICATION OF THE RULE 8 9

the Ministry of Foreign Affairs’ sending notes on 4 October 1999, to the Embassies of the Republic of Cuba, Laotian People’s Democratic Republic and Mongolia in Warsaw informing that Poland considered agreements concluded with these countries terminated as of 17 October 1997, i.e. the day on which the Constitution of the Republic of Poland had entered into force. (...) As regards the agreement concluded with the USSR, appropriate notes dated 4 October 1999, containing the same information, were addressed by the Ministry of Foreign Affairs to the Embassies of the Russian Federation, Ukraine and the Republic of Belarus in Warsaw; notice was taken of the fact the Russian Federation had considered itself and was commonly considered by the international community a continuator of the u s s r also as regards treaties whereas Ukraine and the Republic of Belarus had filed [accepted by Poland - K.K. and T.K.] declarations of succession. (...) In the case of the agreement concluded with the government of the Kampuchean People’s Republic, the Cambodian party was informed about the agreement having been considered terminated by the note of the Embassy of the Republic of Poland in Phnom Penh of 3 November 1999, addressed to the Cambodian Ministry of Foreign Affairs.64

Invoking the provisions of the v c l t , Poland assumed that they were declaratory of customary law. If it had not been so, there would have been no legal grounds for the actions undertaken. The Polish Ministry of Foreign Affairs, invoking the v c l t , Article 65, did not, however, follow the procedure provided for therein with respect to the invalidity, termination and suspension of a treaty or a withdrawal therefrom. Under the v c l t , Article 65(1):

A party which, under the provisions of the present Convention, invokes either a defect in its consent to be bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or

64 The reply of Rafal Wisniewski, supra note 28, p. 419. See also, The reply of Anna Fotyga, Minister of Foreign Affairs of the Republic of Poland, to a deputy’s interpellation (no. 4375) concerning the manner of termination of the international agreements between the Polish People’s Republic and the Union of Soviet Socialist Republics on cultural and scientific cooperation, and the Republic of Cuba on cultural, educational and scientific cooperation in relation to their contravening the Constitution of the Republic of Poland, 26 September 2006, Doc. KSM-2106-159-06/2, in Sprawozdanie stenograficzne z 27. posiedzenia Sejmu Rzeczypospolitej Polskiej w dniach 25,26 i 27 pazdziemika 2006 r., Aneks (2006) pp. 168-169.



suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure proposed to be taken with respect to the treaty and the reasons therefore.

In turn, under the v c l t , Article 65(2):

If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months after the receipt of the notification, no party has raised any objection, the party making the notification may carry out in the manner provided in article 67 the measure which it has proposed.

The Polish Ministry of Foreign Affairs points out that:

the notifications sent out by Poland did not set a time limit for raising objections because it was assumed that the three-month time limit mentioned in the Convention, Article 65(2), was applicable to this case (...). However, no country of those notified raised an objection pursuant thereto. Thus, it should be assumed that they acknowledged the termination of the agreements.65

Let us then examine the reactions of the countries to which the notes had been addressed. “In the case of Cambodia and Mongolia, Poland received, by notes of, respectively, 14 December 1999, and 14 April 2000, replies acknowledging the termination of the agreements’’.66 It follows thus from the information supplied by the Polish Ministry of Foreign Affairs that in these cases Poland was successful in obtaining consent for the retroactive termination of the agreements.

Cuba, however, by a note of 17 November 1999, sent by the Cuban Embassy in Warsaw to the Ministry of Foreign Affairs, let it be known that in its opinion the agreement expired on 24 June 1998. To support this opinion, Cuba invoked Article 22 of the agreement concerning its term. According to the Cuban interpretation, the agreement was concluded for a period of 5 years with a possibility of extending it once for another 5 years, provided that no party terminates it by notice 6 months before the expiration of a given term. As no notice was given by either party about

65 The reply of Rafai Wisniewski supra note 28, p. 419.66 Ibid



its intent to terminate the agreement, it continued for 10 years (24 June 1988-24 June 1998). For the agreement to continue in force, in the opinion of Cuba, the parties thereto had to notify each other in writing about their intent to keep it in force. As no such notices were exchanged, the agreement expired in consistency with its Article 22 on 24 June 1998.67

This position followed from a different wording of prolongation clauses in the Polish and Spanish texts of the Agreement. This circumstance was known to the Polish party earlier. Leaving aside the date of its expiration, which is debatable, there is no doubt that the Agreement is no longer in force. Curiously enough, Poland was very determined to have it retroactively acknowledged that the Agreement was terminated in October 1997 and that it did not expire eight months later, in June 1998.

Next, the Polish Ministry of Foreign Affairs writes: “To the notes sent to the Embassies of the Laotian People’s Democratic Republic, Russian Federation, Ukraine and Republic of Belarus, Poland has not received any reply, which can be considered a ‘tacit consent’ to its proposal”.68

Sending a note to Belarus for all intents and purposes appeared without reason. In fact, it showed that the Polish Ministry of Foreign Affairs overlooked the fact that the Polish-Belarusian Agreement on Cultural, Scientific and Educational Cooperation, Art. 36, concluded in 1995 and which entered into force in 1996,69 abrogated outright and specifically the 1970 Polish-Soviet Agreement in regard to both contracting parties. Hence, the note concerned the Agreement that had terminated much earlier - even before the retroactively set date when this was supposed to happen. The fact that Belarus did not reply was actually a courtesy, which must have been clarified in an informal manner. A similar situation arose in Polish-Russian relations. A new agreement

67 Ibid. In the opinion of the Polish Ministry of Polish Affairs “this interpretation is not supported by Article 22 of the Agreement under which it was concluded for a period of 5 years and was to be automatically extended for next 5-year terms, provided that no party terminated it by notice 6 months before the expiration of a given term. Hence, it must be recognized that at the moment the Cuban party was given the notice about Poland’s considering the agreement terminated as of 17 October 1997, the Agreement was binding on the parties thereto and the declaration by the Republic of Poland about considering the Agreement terminated as of 17 October 1997, was effective”. Ibid

68 Ibid69 Agreement between the Government of the Republic of Poland and the Government of

the Republic of Belarus on Cultural, Scientific and Educational Cooperation signed at Warsaw on 27 November 1995 (J. of Laws of 1996, No. 76, items 365 and 366). Entered into force on 29 April 1996.



concerning the same matter was concluded in 1993 and entered into force in the same year.70 It did not feature a derogation clause. However, it must be assumed that the new agreement abrogated the 1970 Polish-Soviet agreement as it regulated anew the subject matter of the previous agreement.

In the case of Polish-Ukrainian relations, the agreement that was meant to be terminated with effect from 1997 had not been applied since 1992. For in that year a preliminary agreement on cultural and scientific cooperation was concluded.71 Because of its preliminary nature and the fact that it announced the conclusion of a ‘permanent’ agreement, there could be doubts in this case. Eventually, since a new comprehensive agreement was concluded in 1997 and entered into force in December 1999,72 i.e. a month after sending the note, the issue was closed. One may only wonder as of what date the agreement was terminated.

It is debatable whether Article 65(2) of the v c l t requires the express setting of a time limit for raising an objection. Doubts are even stronger in the case of the note sent to Cambodia which was not then - and nota bene still is not - a party to the v c l t . Interestingly, it was one of two states only that in the time limit set by the v c l t replied in the affirmative, consenting to retroactively consider the Agreement terminated. This can be considered a sign of its conviction that invoking the v c l t in relation to it - not only in the substantive dimension but also in the procedural one - was wrong and that to comply with the Polish request it was not enough to wait until the time limit for raising an objection lapsed, but it was necessary to give an express consent.

To sum up, if the v c l t did not embody the provisions of customary law in force at the time when the discussed actions were undertaken, then it could not serve as grounds for these actions. In turn, if it did embody customary law provisions then, if we assume that a time limit should have been set expressly in the note, Poland did not comply with the procedural provisions for releasing oneself from the agreements in question. Therefore, the only agreements that would be indisputably terminated were those in respect of whose termination

70 Agreement between the Government of the Republic of Poland and the Government of the Russian Federation on Cultural, Scientific and Educational Cooperation signed at Warsaw on 25 August 1993 (J. of Laws of 1994, No. 36, items 133 and 134). Entered into force on 15 December 1993.

71 Preliminary Agreement between the Government of the Republic of Poland and the Government of Ukraine on Cultural and Scientific Cooperation signed at Warsaw on 18 May 1992, available at http://www.traktaty.msz.gov.pl/fd.aspx7fsP0000007945.pdf (last visited: 19 October 2013). Entered into force on the day of signature.

72 Agreement between the Government of the Republic of Poland and the Government of Ukraine on Cultural, Scientific and Educational Cooperation signed at Kiev on 20 May 1997 (J. of Laws of 2000, No. 3, items 29 and 30). Entered into force on 22 November 1999.

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the other parties had expressed consent. This was the case with agreements concluded with Cambodia, Mongolia and Cuba; in the last-mentioned case the date of termination is debatable. Whereas the agreements binding Poland to the continuator of the USSR (Russian Federation) and its successors that submitted declarations about succeeding to treaties (Belarus and Ukraine) terminated because they were superseded by other agreements concerning the same subject matter. In two cases this occurred even before the sending of notes about the application of the clause on a fundamental change of circumstances and even prior to the retroactively set date when the termination should take effect. In one of these cases, i.e. in the Polish-Belarusian Agreement, there was an outright derogation clause which specifically abrogated the 1970 Polish- Soviet Agreement. As far as the Agreement with Laos is concerned, it would still be theoretically possible for this country to raise an objection mentioned in Article 65 of the v c l t , unless it otherwise acknowledged the termination of the agreement. The long time that has lapsed since the note was sent and the fact that no party invokes this agreement seem to indicate that its termination has been acknowledged.

One can wonder why Poland received replies in the affirmative in two cases, despite the controversial character of the grounds adopted by Poland to have the agreements terminated, including the invocation of a fundamental change of circumstances by the state that itself brought the change about. In one case it was informed that the agreement had already otherwise expired and in the remaining cases no objection has been raised. The reasons for such reactions should be looked for in agreements themselves; one can hardly insist on sustaining agreements describing friendship between nations, especially if it is supposed to be of a rather special nature as “socialist friendship” or “Marxist- Leninist friendship”.

With the situation as it is, it appears that express consent or an absence of objections to the said notes of the Polish government from the other parties to the agreements cannot be explained otherwise than by the political decision of these countries. As the present authors have shown, there are good reasons to claim that there were legal grounds to question the actions of the Polish government. However, a decision on whether to take advantage of them or not falls outside the scope of a legal analysis.

4 Conclusion

Regardless of how we assess the procedure by which the bilateral agreements in question were terminated, it is a fact that the clause on a fundamental change of circumstances was applied to this case effectively, unquestionably



and without giving rise to international accountability. At the same time, they did not give as a rule any specific examples of an effective (i.e. unquestionable and not giving rise to international accountability,) use of the clause on a fundamental change of circumstances.73 Every jurist specialising in international law heard that such examples did exist. It is very hard, however, to pinpoint unquestionable instances of such use.74 This, at least, is the impression of the authors of the present study. Accordingly, the effective invocation of this rule by the Polish Minister of Foreign Affairs, including the acknowledgment of the termination of relevant agreements by the other parties, merits attention.

In this context it must be emphasized that Poland invoked specific v c l t provisions, both substantive (Articles 61 and 62) and procedural (Article 65), not only in respect of countries which were parties to the Convention but also in respect of a country which was not bound by it, namely Cambodia. This may testily to the deep faith of the Polish Ministry of Foreign Affairs that the said provisions are an embodiment of international customary law. Curiously enough, it was from this country that Poland received an express reply in the affirmative.

73 By way of example, among Polish authors, Remigiusz Bierzanek wrote that “In international practice, states on many occasions invoked a fundamental change of circumstances to release themselves from assumed obligations, but almost always (emphasis added by K.K. and T.K.) in such cases interested states questioned the legitimacy of such an invocation”. Remigiusz Bierzanek, “Zrodla prawa miqdzynarodowego”, in R. Bierzanek and J. Symonides, Prawo mi§dzynarodowepubliczne (8th ed., 2004) p. 99. See also, Frankowska, supra note 4, p. 158.

74 Relevant case law and other instances of the application of this doctrine are very interestingly discussed by Malgosia Fitzmaurice. She also mentions several potential examples in point such as the suspension by the us President Franklin D. Roosevelt of American obligations under the International Load Line Convention of 1930 and the suspension by the Netherlands of a development assistance agreement with Surinam in 1982. In the first case she also cites opinions critical of this step. In neither case do we have any information on the response of the other parties to these treaties. Hence, these are cases of a unilateral suspension of the performance of treaties and letting other parties know that steps are taken to have them terminated. Of course, it is possible that they were subsequently terminated for one reason or another. Fitzmaurice, supra note 3, pp. 615-622.


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