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Sunset Clauses in International Law and their Consequences for eu lawIPOL STU(2022)703592 EN1.3.
The nature of Sunset Clauses
Prevailing wisdom restricts the utility of sunset clauses to regulate temporary and transitory issues
Sunset clauses constitute a critical and underappreciated lever of regulation. Diachronically the use of
these clauses transcended the boundaries of different legal disciplines. In particular, such clauses are
present in a plethora of legal fields at international level, ranging from disarmament treaties to
international investment agreements.
To clarify here, these type of clauses such as duration clauses and sunset clauses are rules about rules.
Their normative content is, in nature, procedural to define the duration and the automatic expiration
of substantive rules. For instance, in investment treaties, a set of substantive provisions define the
special protection dedicated to investments. Sunset clauses simply regulate the duration of the special
protection. The substantive provisions according to Hart’s classification, are primary legal rules,
because they are rules of conduct defining obligations, prohibitions or permissions and are addressed
to the subjects.
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On the other hand, sunset clauses set up the duration of the validity of such primary
legal rules, and according to Hart’s classification they are secondary legal rules. In general, secondary
legal rules are addressed to primary legal rules and define their creation, extinction, duration or
alteration. Within Hart’s classification, sunset clauses set the automatic expiration of primary legal rules,
regardless of their content.
Accordingly, secondary legal rules such as the aforementioned sunset clauses do not conflict with
primary rules, which pose obligations, for instance, on the protection of the environment or
prohibitions, or about the preservation of investments in fossil fuel. In other words,
it is the primary
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