Sunset Clauses in International Law and their Consequences for EU Law
PE 703.592
37
discriminatory impairment of a foreign investment, the duty to pay compensation, and the
establishment of an alternative dispute resolution system such as arbitration.
In line with the aforementioned, sunset clauses in international treaties set the framework for treaties’
expiration in case of a unilateral withdrawal. Although the VCLT and the VCLT 1986 do
not regulate the
specific issue of ‘sunset clauses’, Article 54 entitled ‘termination of or withdrawal from a treaty under
its provisions or by consent of the Parties’ has an indirect obligation on states Parties in Treaties in
relation to adherence to a sunset clause. In particular, Article 54 prescribes that ‘the termination of a
treaty or the withdrawal of a party may take place: (a) in conformity with
the provisions of the treaty;’
138
In general, non-conformity with treaty provisions creates state responsibility. However, in relation to
investment treaties, given that rights to third parties (investors) are created (the expiration of which is
set by the sunset clause) the non-conformity is challenged before international tribunals. Such
modus
operandi
is the novelty, which emerged in relation to state liability.
139
Thus, the use of sunset clauses and their entrenchment effect undermines the legitimacy of present
and future lawmakers by throwing away the key to unlock the handcuffs that investment treaties have
placed in the hands of the state.
Dostları ilə paylaş: