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Article 44: Separability Of Treaty Provisions

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Chapter Summary

Article 44 concerns the separability of treaty provisions for all cases of invalidity, termination, withdrawal from and suspension of the operation of a treaty. Its purpose is to find a balance between the interest of the parties in the integrity of the treaty, and their interest in continuing the treaty despite the "extraction" of certain clauses. It emphasizes that in cases falling under Articles 49 and 50 the State entitled to invoke the fraud or corruption may do so with respect either to the whole treaty or to the particular clauses alone. Article 44 is a good example of jus scriptum having introduced order, hierarchy, sub-rules and exceptions in an area where customary law could hardly have done so on its own. It contributes to the stability of treaties by describing in detail the principle and the various exceptions in respect of the separability of treaty provisions.

Keywords: Article 44; separability; treaty provisions

10.1163/ej.9789004168046.i-1058.279
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