sectional sunset clauses may have a more complex construction prescribing
different expiration dates for different provisions of the treaty and/or for different legal
subjects
.
2.2.
Direct and indirect
The second classification of the sunset clause is also defined by the scope of the provision.
A sunset
clause is direct when it prescribes the termination of the whole or part of the embodied treaty
.
For instance, the 50-year sunset clause in the ECSC regulates the duration of the aforementioned treaty.
On the other hand,
an indirect sunset clause is incorporated in a treaty but it regulates the
duration of another legal instrument
. Interestingly, indirect sunset clauses in international
instruments are not very frequent.
However, the Vienna Convention on the Law of Treaties contains
an indirect sunset clause. In particular Article 56, paragraph 2, which regulates the denunciation of or
withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal
states that: ‘a party shall give not less than twelve months' notice of its intention to denounce or
withdraw from a treaty’.
Accordingly, the withdrawal from a treaty is subject to a one-year sunset
clause, unless the drafters of the treaty have decided differently.
Another example of an indirect sunset clause is recorded in the recently reached international
agreement between the E3/EU+3 and the Islamic Republic of Iran on Iran’s nuclear energy program
(the Joint Comprehensive Plan of Action (JCPOA), also known as ‘Iran deal’). Article 20 includes an eight-
26
Anthea Roberts, ‘Triangular treaties: the nature and limits of investment treaty rights’ (2015) 56 Harvard International
Law Journal 353, 353-4. Multiple investment tribunals have recognized such triangular nature of IIA. See for instance,
RosInvestCo UK Ltd. v. The Russian Federation, SCC Case No. V079/2005, Decision on Jurisdiction (1 October 2007) [153];
‘[t]he objective purpose of such treaty provisions, which confer independent third party rights on investors’; El Paso
Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15 (31 October 2011) [551] ‘claimants
‘rights under the BIT, the breach of which is the cause of action in these proceedings’; cf the tribunal in Lowen v USA
holding that ‘claimants are permitted for convenience to enforce what are in origin the rights of Party states’, Loewen
Group, Inc. and Raymond L. Loewen v. United States of America, ICSID Case No. ARB(AF)/98/3 (26 June 2003) [233];
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. The United Mexican States, ICSID Case No.
ARB (AF)/04/5 (21 November 2007) [171].
27
Treaty Establishing the European Coal and Steel Community, 18 April 1951, 261 U.N.T.S. 140 Article 97.
28
For indirect sunset clauses in constitutional documents, see Antonios Kouroutakis,
The Constitutional Value of Sunset
Clauses
(Routledge 2017) 11.
29
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, Article
56, paragraph 2.
IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs
16
PE 703.592
year sunset clause, which defines the duration of ‘all EU Regulation implementing all EU proliferation-
related sanctions, including related designations’.
30
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