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Dr. Pham Hong Hanh

Dr. Pham Hong Hanh – Dean of Public International Law Department, International Law Faculty, Hanoi Law University. She graduated with a Ph.D. from Hanoi Law University, Viet Nam (2019). She has over ten years experience of teaching, researching in International Law. Her main research areas are: International law of treaties; International Criminal law; International law of the sea. She is the author of the “International Law Textbook”, and participated in many projects and papers related to International Treaties and International Law.

COVID-19 and its ability to invoke to suspend / terminate the operation of a treaty of a party

Covid-19 has been affecting many countries in different ways, including the fulfillment of the country’s international legal obligations. Under the Pacta sunt servanda principle, a country has an obligation to implement in good faith international treaties to which it is a member. This is one of the basic obligations of the country, widely recognized in the form of international treaties and international custom. However, in certain cases, international law still allows a country to suspend or terminate the implementation of the international treaties it has signed. Under the Vienna Convention on the Law of Treaties (1969), a state may invoke a fundamental change of circumstances (Article 62) clause to suspend or terminate a treaty if all conditions are satisfied, including: (1) the change must be of circumstances existing at the time of the conclusion of the treaty; (2) that change must be a fundamental one; (3) it must also be one not foreseen by the parties; (4) the existence of those circumstances must have constituted an essential basis of the consent of the parties to be bound by the treaty; and (5) the effect of the change must be radically to transform the scope of obligations still to be performed under the treaty. The purpose of this article is to answer the question if a country can invoke Covid-19 as a fundamental change of circumstances to suspend or terminate the implementation of a treaty? In the first part of the article, the authors will consider the possibility of invoking Covid-19 as a fundamental change of circumstances. Next, the article will propose a number of cases in which countries, including Vietnam, may refer to Covid-19 as a basis to suspend the implementation of the treaty without being considered a violation of Pacta sunt servanda principle.