Re-Shaping Treaties While Balancing Interests of Stability and Change: Critical Issues in the Amendment/Modification/Revision of Treaties

58 Pages Posted: 18 Mar 2016 Last revised: 19 Jul 2017

See all articles by Panos Merkouris

Panos Merkouris

University of Groningen - Faculty of Law

Malgosia Fitzmaurice

Queen Mary University of London, School of Law

Date Written: April 1, 2017

Abstract

The present Article aims to examine trends in amendment/modification/revision (A/M/R) practices in international law, both pre- and post-VCLT, and how these reflect the constant tug-of-war between the competing interests of stability of international relations and the necessity to change in order to avoid stagnation. However, any study on trends, whether viewed as reflecting either linear or circular concepts, requires a study of the drafting history of any existing generally applicable set of rules on A/M/R. For this reason, in Section II the drafting history of the relevant articles of the Vienna Convention on the Law of Treaties (VCLT) will be examined in order to draw some initial conclusions as to the trends at that time regarding A/M/R. In Section III, interesting forms of A/M/R will be examined, which either emerged post-VCLT, or existed pre-VCLT but have shown a remarkable surge in application in the last few decades. Finally, in Section IV the A/M/R clauses of treaties will be statistically examined to reveal whether any conclusions arrived at the previous Sections can be confirmed or whether any additional trends can be identified.

It goes without saying that when dealing with such a broad topic certain concessions, by necessity, have to be made. In Sections III and IV, the focus has been mainly on multilateral environmental agreements (MEAs). This is not because A/M/R practice in other fields of international law is devoid of interest, far from it. However, for the purposes of this Article it was considered better to adopt a ‘narrow and deep’ approach rather than a ‘broad and shallow’ one. MEAs were selected as the ideal focal point for several reasons; firstly, because an examination of the A/M/R of all treaties would be impossible within the confines of this article. Second, because MEAs due to their technical nature and their particular object and purpose seem to best reflect the constant battle between stability and change and finally, because there is a great number of MEAs from which useful statistical data can be drawn.

Keywords: Amendment, Modification, revision, Law of Treaties, Vienna Convention on the Law of Treaties, Environmental Law, Multilateral Environmental Agreements

JEL Classification: K32, K33

Suggested Citation

Merkouris, Panos and Fitzmaurice, Malgosia, Re-Shaping Treaties While Balancing Interests of Stability and Change: Critical Issues in the Amendment/Modification/Revision of Treaties (April 1, 2017). Austrian Review of International and European Law, Forthcoming; University of Groningen Faculty of Law Research Paper 2016-11. Available at SSRN: https://ssrn.com/abstract=2749008 or http://dx.doi.org/10.2139/ssrn.2749008

Panos Merkouris (Contact Author)

University of Groningen - Faculty of Law ( email )

Oude Kijk in't Jatstraat 26
9700 AS Groningen, 9712 EK
Netherlands
+31 (0) 50 363 8258 (Phone)

Malgosia Fitzmaurice

Queen Mary University of London, School of Law ( email )

67-69 Lincoln’s Inn Fields
London, WC2A 3JB
United Kingdom

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