Article 62 of VCLT and sea level rise : applicability of 'rebis sic stantibus' to maritime zones and boundaries

Abstract

As a result of climate change, sea level rise puts many geographical coastal features and low-lying island countries at risk of disappearing within the coming decades. Sea Level Rise itself does not only pose catastrophic environmental damage but also presents a wide range of challenging legal uncertainties urging the legal society to reflect and find instruments which can help mitigate those challenges. Raising a discussion about the possibility of applying the doctrine clausula rebus sic stantibus represents one of those challenges and therefore, puts under the doubt the stability and certainty of existing maritime boundaries treaties. Being one of the most disputed doctrines in public international law, it has never attracted attention, particularly in the context of maritime law, as it has today. Coming from the State practice and doctrine which was referred to as the "doctrine" or "principle" of rebus sic stantibus, Article 62 of the 1969 Vienna Convention on the Law of Treaties (VCLT) provides a possibility of terminating, withdrawing from or suspending a treaty in an orderly manner. Such a rule was included in the VCLT for situations when circumstances change substantially and the equivalence of treaty obligations may become imbalanced and treaties lose their objective and purpose. Based on Article 62 (2)(a), treaties establishing boundaries cannot be subject to unilateral termination under a fundamental change of circumstances. However, the travaux préparatoires of the International Law Commission (ILC) and relevant case law suggest that the exclusion only covers treaties delimiting territorial boundaries and full sovereignty. Thus, one of the most debatable and uncertain questions remains to be addressed: "Whether the fundamental change of circumstances (clausula rebus sic stantibus) referred to in Article 62(2) of 1969 Vienna Convention on the Law of Treaties (VCLT) applies to maritime boundaries in relation to the sea level rise issue?"