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| Book Title | La denuncia de los tratados. Régimen en la Convención de Viena sobre el derecho de los tratados de 1969 y práctica estatal |
| Book Author | Pérez, Elena Conde |
| Bibliographic Information | Congreso d los Diputados, 2007, Pages : 258, €9, ISBN 9788479433031 |
| Review Title | |
| Reviewer(s) | Binder, Christina |
Elena
Conde Pérez. La denuncia de los tratados.
Régimen en la Convención de Viena sobre el derecho de los tratados de 1969 y
práctica estatal. Madrid: Congreso de los Diputados, 2007. Pp. 258. €9.
ISBN: 9788479433031.
Reviewed
by Christina Binder,
University of Vienna
Treaties are the major legal
instruments governing inter-state relations and an indispensable tool for
diplomacy: since 1945 some 54.000 treaties have been registered with the United
Nations, still representing only about 70 percent of treaties which have
entered into force (A. Aust, Modern
Treaty Law and Practice, 2nd ed., 2007, p. 1).
Recently, there has been a renewed
doctrinal interest in the general law of treaties. It is evidenced by the
spread of commentaries on the Vienna
Convention on the Law of Treaties (VCLT), including Corten/Klein’s major three
volume commentary in the French language of 2006; Villiger’s commentary of 2009
and the forthcoming updated English translation of Corten/Klein which is announced
for fall 2010. Aust’s Modern Treaty Law
and Practice which was published 2007 in its second edition may also be mentioned here. This new wave of
publications is remarkable given the fact that for more than 30 years
Sinclair’s The Vienna Convention on the Law
of Treaties was de facto the only authoritative treatise on the Convention.
Notwithstanding the recent scholarly
interest in the general law of treaties, only few monographs specifically on treaty
termination have been published. These were mostly dedicated to specific aspects
of denunciation. (See e.g. Feist’s Kündigung, Rücktritt und Suspendierung von
multilateralen Verträgen of 2001; Gomaa’s Suspension or Termination of Treaties on Grounds of Breach of 1996;
Kontou’s The Termination and Revision of
Treaties in the Light of New Customary International Law of 1994, Pott’s Clausula rebus sic stantibus: ein Versuch ihres Wesens, ihrer
Voraussetzungen und ihrer Rechtsfolgen (Art. 62 WVK) of 1992 or Vamvoukos’ Termination of Treaties in International law: The Doctrines of Rebus
Sic Stantibus and Desuetude of 1985). Against that background, Elena Conde
Pérez’ investigation on the VCLT’s regime of treaty denunciation addresses an
important shortcoming.
The author examines comprehensively
the different forms of treaty denunciation with a particular focus on the termination/withdrawal
grounds under general international law. While emphasis is laid on the grounds which are contained in the VCLT – denunciation
of a treaty containing no provision regarding denunciation (Art. 56 VCLT), breach
of treaty (Art. 60 VCLT), impossibility of performance (Art. 61 VCLT),
fundamental change of circumstances (Art. 62 VCLT) and ius cogens superveniens (Art. 64 VCLT) – some mention is also made
of possible denunciation grounds which are not included in the VCLT: desuetudo, armed conflict, territorial
changes and breach of consular or diplomatic relations.
La denuncia de los tratados is structured rather classically. Chapter II – which as regards extent
and content forms the central chapter of the book – is dedicated to the
different denunciation grounds. Other chapters deal with formal/procedural requirements
of denunciation (Chapter III), dispute resolution (Chapter VI) and the
consequences of termination (Chapter VII). One chapter examines treaty denunciation
under Spanish law (Chapter V), another discusses the treaty denouncing capacity
of subjects of international law (Chapter IV). A preface (Prólogo) by L.I. Sánches Rodríguez provides a general introduction to
the topic. Likewise, a rather extensive bibliography including Spanish, French
and Italian references is provided, while an index and a table of treaties and
cases are missing.
Elena Conde Pérez meticulously
compiles relevant materials and oeuvres on treaty denunciation. She provides a good
overview and assembles relevant case law concerning the different denunciation
grounds. In doing so, the author also undertakes certain attempts of
systematization, in particular when classifying possible treaty clauses which
allow for denunciation (pp. 40).
Given the mentioned scarcity of
research, the book fills an important gap in the existing literature: this even
more, as it addresses issues which have not been extensively dealt with so far.
It discusses the role of the depositary (including the problem of multiple
depositaries) in the denunciation procedures (pp. 156 et seq.); the capacity of parties to denounce a treaty (including
protectorates, non recognized governments or governments in exile (pp. 162 et seq.)); the problems of denunciation
of mixed agreements (pp. 167 et seq.)
and denunciation by states which are not parties to the treaty (eg third states
which are obliged by a provision of a treaty in accordance with Arts. 35-37
VCLT (pp. 171 et seq.)); as well as
denunciation by other subjects of international law, such as national
liberation movements, occupied states or states under Tutela (territorial administration) pp. 172 et seq.). Furthermore, the analysis and description of Spanish
procedures and institutions provide relevant insights into the Spanish practice
of treaty denunciation (pp. 175 et seq.).
Regrettably, however, Conde Pérez does
not go into much depth in her analysis. She remains rather descriptive when
examining the case law and partly restricts herself to enumerating the elements
of the relevant provisions of the VCLT (see e.g.
the discussion of the denunciation procedure and system for the resolution of
conflicts (Arts. 65-68 VCLT and annexes; pp. 195, pp. 205 et seq.). Doctrinal problems are barely touched upon by Conde
Pérez, such as the question whether the term “object” in Art. 61 VCLT also
comprises legal regimes; the relation between
Art. 62 VCLT and treaty specific termination clauses in cases of fundamental
changes of circumstances; or issues linked to the broad framing of the provisions
concerning the consequences of termination (Arts. 70, 71 VCLT). In part, this
may be explained with the limited case law and practice, as many of the VCLT’s
provisions in Part V (Termination, Suspension and Withdrawal) have rarely – if
at all – been relied upon and applied. To exemplify, the VCLT’s system on the
resolution of conflicts has never been used and certain theoretical problems
thus have not been tested in practice. Still, they remain of considerable
academic interest and are not sufficiently dealt with in La denuncia de los tratados which addresses only few of the legal
problems linked to the different denunciation grounds.
Likewise it is regrettable that the
conclusion (pp. 229 et seq.) does not
go much beyond what was already said before. In addition, Conde Pérez’ final appreciation
of the VCLT’s system of denunciation as confuse, incomplete and ambiguous (p.
241) seems too extreme. Her claim also lacks sufficient substantiation. For
instance, the author fails to mention the difficult balance the drafters of the
VCLT had to strike between generality and completeness. As a general treaty supposed
to regulate a multitude of different situations, the VCLT’s denunciation regime
necessarily had to be kept rather abstract and general. Still, the VCLT lays
out guiding rules for international practice. Thus, other authors arrived at
rather different conclusions: the VCLT – including the denunciation regime – was held to be the “bible of practitioners”, the “prime achievement of the International Law
Commission”, whose “intelligence of […] drafting has enabled states to continue
or modify their practice without distorting or departing from the rules of the
Convention.” (A. Aust, Modern Treaty Law
and Practice, 2nd ed., 2007, pp. 7-8.).
In a nutshell, it is mainly the
assemblage of relevant case law and the references to works on treaty law in Spanish,
French and Italian which make La denuncia
de los tratados an important contribution to the existing literature on treaty
termination. With respect to the doctrinal problems surrounding treaty
denunciation the book, however, generates only few additional insights.
