Disconnection Clauses: An Inevitable Symptom of Regionalism?

This paper discusses the application of disconnection clauses. ‘Disconnection clauses’ are legal provisions inserted into multilateral conventions to ensure that certain parties to the convention are not required to apply the rules of the convention because other relevant rules have already been agreed to among themselves. They have most commonly been inserted into treaties at the request of the Members of the European Community (EC) to indicate to the other parties to the convention that the EU Member States had concluded, or were about to conclude, similar or stronger measures between themselves in the same area. Supporters of disconnection clauses contend that if EC Member States become a party to a convention without such a clause they would be bound to apply the convention law instead of Community law due to the international law requirements of Article 27 of the Vienna Convention on the Law of Treaties (VCLT), which prohibit domestic legislation having primacy over international treaty requirements. To follow the requirements of Article 27 VCLT would undermine the uniform application and integrity of Community Law in the area covered by the overlapping convention in question. However, while these clauses indicate to other contracting parties that the agreement is one in which there is, for example, Community competence and the Community rules to apply, they do not give any indication of the scope or nature of Community or Member States’ competence. The 57th Session of the ILC Study Group reported that disconnection clauses had the potential to erode the coherence of the treaty and that certain members thought the practice to be illegal inasmuch as they were contradictory to the fundamental principles of treaty law. While these clauses make it possible for a limited group of parties to enhance the objectives of a treaty by taking measures that correspond to their special circumstance, this practice also creates a possibility that the inter se agreement will undermine the original treaty regime. The actual impact of a particular disconnection clause depends on how the clause is crafted, along with the changing nature of the regime that it refers to. The potential for a disconnection clause to undermine the object and purpose of the original treaty can therefore be removed during its design. Nevertheless, without full disclosure when negotiating the convention, any clause that seeks to replace treaty provisions with an alternative regime that would be applicable only between certain parties may, at worst, be creating different standards for different parties and, at best, be opaque and incoherent. This paper describes the development of the disconnection clause before assessing the main legal and political controversies surrounding these clauses. It then discusses whether these clauses could potentially create more legal problems than they are intended to solve or whether they are simply a practical response to deepening but uneven regionalism. Presented at the SIEL 2010 Conference in Barcelona.