‘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. A disconnection clause can also be described more generally as a ‘conflict clause’ because it signals to all parties that parallel and potentially conflicting treaty obligations exist.
This paper presents a discussion of the disconnection clause which argues that 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 first describes the various types of disconnection clause, focusing on their purpose and development. It then assesses the main legal and political controversies surrounding these clauses before assessing 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 regionalism
