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Treaties and Changed Circumstances (Rebus Sic Stantibus)*

Published online by Cambridge University Press:  28 March 2017

Oliver J. Lissitzyn
Oliver J. Lissitzyn*
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Extract

The problem of a state’s right to cease or limit its performance of the provisions of a treaty on the ground that circumstances have changed is an old one. After centuries of doctrinal discussion, the existence, scope and modalities of such a right remain controversial and perplexing. Its practical importance may at times be exaggerated; but nations dissatisfied with the status quo continue to regard it as a welcome device for escaping from burdensome treaties, while others fear it as a threat to stability and to their interests. Terminology has complicated the problem. Scholars, in efforts to define the asserted right and its scope or to provide a doctrinal basis for its modalities, have resorted to numerous technical labels drawn largely from municipal legal systems. Governments, in asserting the right, have variously employed or refrained from employing such terms as rebus sic stantibus. Terminological diversity has sometimes served to obscure substantive similarities and differences in practice and to divert the attention of scholars from underlying community interests and policies.

Type
Research Article
Information
American Journal of International Law , Volume 61 , Issue 4 , October 1967 , pp. 895 - 922
Copyright
Copyright © American Society of International Law 1967

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Footnotes

*

This article is in part based on my paper entitled “Stability and Change: Unilateral Denunciation or Suspension of Treaties by Reason of Changed Circumstances,” presented at the Sixty-First Annual Meeting of the American Society of International Law in April, 1967, and printed in the 1967 Proceedings of the Society at 186; it incorporates some of the language of that paper. Valuable help was provided by Memorandum No. 6, September, 1966, “Fundamental Change of Circumstances,” prepared for the Study Group on the I.L.C. Draft Articles on the Law of Treaties, American Society of International Law, by the Study Group’s Rapporteur, Dr. Egon Schwelb. My conclusions, however, do not necessarily agree with those of Dr. Schwelb.

References

1 These articles, cited hereinafter when appropriate as ‘ ‘ I.L.C. Draft,'’ are printed (with the Commentary) in Reports of the International Law Commission on the Second Part of Its Seventeenth Session, January 3-28, 1966, and on Its Eighteenth Session, May 4-July 19, 1966, U.N. General Assembly, 21st Sess., Official Records, Supp. No. 9 (A/6309/Rev. 1) (1966) (hereinafter cited as “1966 I.L.C. Rep.“), and in 1966 I.L.C. Yearbook (II). They are reprinted in 61 A.J.I.L. 263 (1967). For a detailed guide to the articles and their history, see Guide to the Draft Articles on the Law of Treaties Adopted by the International Law Commission at Its Eighteenth Session, U.N. Doc. A/C.6/376, May 11, 1967.

2 The conference is to meet early in 1968. See TJ.N. General Assembly Res. 2166 (XXI) on International Conference of Plenipotentiaries on the Law of Treaties, 61 A.J.I.L. 656 (1967).

3 Subsequent expectations developed in the course of application of the treaty and the interests of the community formed by the treaty may be particularly important in the interpretation of treaties which are constituent instruments of international organizations. Cf., e.g., Gordon, “The World Court and the Interpretation of Constitutive Treaties,” 59 A.J.I.L. 794 (1965). See, in general, McDougal, Lasswell and Miller, The Interpretation of Agreements, and World Public Order (1967),

4 HU1, The Doctrine of “Rebus Sic Stantibus” in International Law 8-10 (1934) (9 The University of Missouri Studies, No. 3).

5 Ibid. 75-77 (footnotes omitted). For a survey, see also Harvard Research in International Law, Law of Treaties, 29 A.J.I.L. Supp. 653, at 1097-1124 (1935).

6 Harvard Research in International Law, op. cit. note 5 above, at 1096.

7 Ibid. at 1100, 1106, 1110-1111 , 1113,1123.

8 2 Hyde, International Law Chiefly as Interpreted and Applied by the United States 1524 (2nd rev. ed., 1945).

9 See also his comment on the suspension of the International Load Line Convention of 1930 by the United States in 1941, text at note 38 below. McNair, The Law of Treaties 436-457, 511-513, 662-664, 681-691 (1961).

10 Ibid. 436; see also 687-688, 690-691.

11 Brierly, The Law of Nations 336-337, 388 (6th ed. by Waldock, 1963).

12 Bishop, “General Course of Public International Law, 1965,” 115 Hague Academy, Recueil des Cours 151, at 360 (1965, II ) . See also Brigga, The Law of Nations 917-918 (2nd ed., 1952); 1 Schwarzenberger, International Law (International Courts and Tribunals: I) 543 (3rd ed., 1957); and Monaco, Manuale di Diritto Internazionale Pubblico 101-102 (1960).

13 American Law Institute, Restatement Second, Foreign Relations Law of the United States 467 (1965).

14 lbid. 468,

15 For some examples, see McNair, op. tit. note 9 above; Fairman, “Implied Resolutive Conditions in Treaties,” 29 A.J.I.L. 219 (1935).

16 This does not mean, of course, that serious comparative studies of possibly relevant principles in municipal law may not usefully serve to clarify the underlying community policies and the appropriateness of their application in international law. Cf., e.g., Smit, “Frustration of Contract: A Comparative Attempt at Consolidation,” 58 Columbia Law Rev. 287 (1958).

17 Harvard Research in International Law, op. cit. note 5 above, at 1100.

18 States sometimes invoke a change of circumstances without using the expression rebus sic stantibus or stating any general principle. This fact, of course, does not diminish the value of such invocations as precedents. This brief survey stresses state practice rather than its classification in doctrinal terms.

19 26 Stat. 567, 612 (1890). For correspondence constituting the arrangement, see 1891 II. S. Foreign Relations 43-47 (1892).

20 28 Stat. 509 (1894).

21 1894 U. S. Foreign Relations 80-81 (1895). For correspondence, see Hid. 77-83.

22 36 Stat. 11, 83 (1909).

23 1 Malloy, Treaties, Conventions, International Acts, Protocols and Agreements, 542 (1910) (Sen. Doc. No. 357, 61st Cong., 2d Sess.). For the 1897 Act, see 30 Stat. 151, 203 (1897).

24 5 Hackworth, Digest of International Law 429 (1943).

25 [1932] Journal Official 3584-3585. For an English translation, see 1 U. S. Foreign Relations [1932] 746 (1948).

26 U.S Foreign Relations [1932] 744-746 (1948).

27 U. S. Foreign Relations [1933] 873-883 (1950).

28 For convenience, the expression ‘ ‘ accepted the Optional Clause'’ is used here to mean “accepted the compulsory jurisdiction of the Permanent Court of International Justice under paragraph 2 of Article 36 of the Court's Statute [or, mutatis mutandis, the corresponding provisions of the Statute of the International Court of Justice].“

29 20 League of Nations Official Journal 408 (1939).

30 Ibid. 407-411; 21 Hid. 44 (1940). See also Hudson, “Nineteenth Tear of the Permanent Court of International Justice,” 35 A.J.I.L. 1, 9-10 (1941). Several of the Commonwealth governments adopted by express reference the justification given by the United Kingdom.

31 Norway, Sweden and Denmark expressed their reservations “more particularly” as regards disputes not connected with the war, thus drawing attention to the question whether the justification given by the belligerents was sufficient to cover all disputes arising from events during the war regardless of their connection with the change invoked. 20 League of Nations Official Journal 410-411 (1939) ; 21 ibid. 45-47 (1940).

32 Cf. 1 Rosenne, The Law and Practice of the International Court 409 et seq., esp. 415-418 (1965).

33 The Australian Government, in a telegram of Sept. 7, 1939, to the Secretary General of the League, referred to its telegram of the same date concerning its obligations under the Optional Clause and said that the same considerations “apply with equal force in case of General Act.” 20 League of Nations Official Journal 412 (1939). The Canadian communication made a similar reference. 21 ibid. 47 (1940). Accessions to the General Act were for five-year terms with automatic extension for a like period if no notice of denunciation was given. Some neutral governments made reservations concerning the Australian and Canadian action. 20 ibid. 412 (1939), 21 ibid. 48-50 (1940). The other Commonwealth governments and France had no need to take action similar to that of Australia and Canada because prior to the war they had made the desired exclusion when modifying their accessions as permitted by Arts. 39 and 45 of the Act. For text of the General Act, see 4 Hudson, International Legislation 2529 (1931).

34 See Hudson, op. cit. note 30 above, at 7-9.

35 Proclamation No. 2500, Aug. 9, 1941, 6 Fed. Beg. 3999 (1941). The text of the Convention is in 47 Stat. 2228 (1933). Eight Latin American states parties to the convention consented to the suspension. 5 Dept. of State Bulletin 114 (Aug. 9, 1941). No state appears to have protested. The 1941 Proclamation was revoked as of Jan. 1, 1946, by Proclamation No. 2675, Dec. 21, 1945, 10 Fed. Reg. 15365 (1945).

36 40 Ops. Atty. Gen. 119, 120-123 (1941).

37 Briggs, “The Attorney General Invokes Rebus Sic Stantibus,” 36 A.J.I.L. 89, at 90, 93 (1942).

38 2 Hyde, op. cit. note 8 above, at 1527.

39 It is noteworthy that in all these instances the governments which invoked the justification of a change of circumstances were successful in the sense that they effectively terminated, suspended or limited their performance of the obligations in question, although they were generally less successful in persuading other parties that the justification was valid.

40 l963 I.L.C. Yearbook (II) 36, at 83, 84.

41 Ibid. 84.

42 See, e.g., 1966 I.L.C. Yearbook (I), Pt. I, 75, 78-82, 85-86, 130. “In addition, it [the Commission] decided to emphasize the exceptional character of this ground of termination or withdrawal by framing the article in negative form … “ 1966 I.L.C. Rep. 87 (Commentary to Art. 59).

43 1963 I.L.C. Yearbook (I) 156.

44 Ambassador Rosenne referred to “ a n element of controlled subjectivity” in the article. 1966 I.L.C. Yearbook (I), Pt. I, 79.

45 The Special Rapporteur pointed out that a rejection of the doctrine by the Commission “would certainly not receive the support of the majority of governments” and that the Commission's task was “ t o define it with sufficient strictness.” Ibid. 85.

46 The vagueness of the word “essential” was alluded to by some members of the Commission. See, e.g., ibid., 79, 80. The Harvard Research had referred to the test “that the changes shall be ‘essential', ‘fundamental', ‘vital’ “ as “abstract and subjective.” Harvard Research in International Law, op. cit. note 5 above, at 1100.

47 The addition of suspension as a possible effect of an invocation of a change of circumstances was suggested by Rosenne in the Commission (1963 I.L.C. Yearbook (I) 252) and by the Government of Israel in its comments on an earlier draft (see 1966 I.L.C. Rep. 123).

48 1963 I.L.C. Yearbook (I) 242-243.

49 But see Art. 53 and its discussion below.

50 See the 1963 I.L.C. Rep., 1963 I.L.C. Yearbook (II) 207, Art. 44.

51 Ibid.

52 The word “radically” was suggested in 1966 by Professor Tunkin, the Soviet member of the Commission, who said that the rule “concerning a fundamental change of circumstances did exist, but it was imprecise and for that reason presented a danger to the stability of treaties and international relations as a whole.” “The Commission's task,” he added, “was to define the rule clearly and make it applicable only in exceptional cases.” The words “in an essential respect,” he thought, “were not sufficiently definite.” 1966 I.L.C. Yearbook (I), Pt. I, 80-81.

53 Waldock, ibid. 86.

54 1966 I.L.C. Rep. 10 (footnote omitted).

55 See, e.g., 1963 I.L.C. Yearbook (I) 141-144, 146-148, 152-154, 253, 254; 1966 I.L.C. Yearbook (I), Pt. I, 77-81, 84, 85; Waldock, Fifth Report on the Law of Treaties, TJ.N. Doe. A/CN.4/183/Add. 3, Jan. 3, 1966, pp. 7-16; XJ.N. General Assembly, 21st Sess., Official Records, Sixth Committee, Summary Records of 903rd, 907th, 908th, 909th, 910th, 911th and 914th Meetings (October, 1966). The final text of Art. 59 was adopted by 13 votes to 1, with 1 abstention. 1966 I.L.C. Yearbook, Pt. I, 130. Ten members were apparently absent.

56 Commentary to Art. 59, 1966 I.L.C. Rep. 85, 86.

57 Several members of the Commission raised the question of consistency of Art. S3 with Arts. 27 and 28 on interpretation. 1966 LL.C. Yearbook (I), Pt. I, 44-45, 47, 122.

58 Waldock, Fifth Report on the Law of Treaties,U.N. Doc. A/CN.4/183/Add.l, Dec. 4, 1965, pp. 29, 32.

59 The Special Rapporteur tentatively accepted the suggestion of the Government of Israel that the article provide for suspension. Ibid. The Commission's decision to the contrary must have been deliberate, but is not explained in the published records.

60 Waldock, in 1966 I.L.C. Yearbook (I), Pt. II, 225: Cf. ibid. 131, 226.

61 lbid. 149.

62 Schwarzenberger, “The Fundamental Principles of International Law,” 87 Hague Academy, Recueil des Cours 195, at 273 (1955, I).