The problem of a state’s right to cease or limit its performance of the provisions of a treaty on the ground that circumstances have changed is an old one. After centuries of doctrinal discussion, the existence, scope and modalities of such a right remain controversial and perplexing. Its practical importance may at times be exaggerated; but nations dissatisfied with the status quo continue to regard it as a welcome device for escaping from burdensome treaties, while others fear it as a threat to stability and to their interests. Terminology has complicated the problem. Scholars, in efforts to define the asserted right and its scope or to provide a doctrinal basis for its modalities, have resorted to numerous technical labels drawn largely from municipal legal systems. Governments, in asserting the right, have variously employed or refrained from employing such terms as rebus sic stantibus. Terminological diversity has sometimes served to obscure substantive similarities and differences in practice and to divert the attention of scholars from underlying community interests and policies.

The Draft Articles on the Law of Treaties completed in 1966 by the International Law Commission and submitted to the General Assembly of the United Nations, on the basis of proposals by the Special Rapporteur, Sir Humphrey Waldock, contain, in Part VII (entitled “Depositaries, Notifications, Corrections and Registration”), three articles—Articles 71, 72 and 73—dealing directly with the depositary of an international treaty; and throughout the Draft Articles are to be found other provisions which directly or indirectly relate to the same institution of contemporary international law and relations.

Article 50 of the Draft Articles on the Law of Treaties, which were presented by the International Law Commission to the General Assembly in 1966 and which the General Assembly has referred, as the basic proposal for consideration, to the international conference of plenipotentiaries, provides under the heading “Treaties conflicting with a peremptory norm of general international law (jus cogens)” that:

The 1966 Draft Articles on the Law of Treaties, drafted over a period of five years of intensive work by an official organ of the international community—the International Law Commission of the United Nations—is more comprehensive and more reflective of community consensus than any previous draft prepared by international lawyers on the law of treaties. In contrast with the excellent Draft Convention on the Law of Treaties completed by the Harvard Eesearch in International Law in 1935, preparation of the Commission’s draft had the advantage of participation by members representative of all continents and of the views of states which were not in existence in 1935.