International Law. A Treatise Volume I Part 71

[Sidenote: Good Offices and Mediation.]

-- 530. A treaty may be concluded with the help of the good offices or through the mediation of a third State, whether these offices be asked for by the contracting parties or be exercised spontaneously by a third State. Such third State, however, does not necessarily, either through good offices or through mediation, become a real party to the treaty, although this might be the case. A great many of the most important treaties owe their existence to the good offices or mediation of third Powers. The difference between good offices and mediation will be discussed below, vol. II. -- 9.

[Sidenote: Intervention.]

-- 531. A third State may partic.i.p.ate in a treaty in such a way that it interposes dictatorially between two States negotiating a treaty and requests them to drop or to insert certain stipulations. Such intervention does not necessarily make the interfering State a real party to the treaty. Instances of threatened intervention of such a kind are the protest on the part of Great Britain against the preliminary peace treaty concluded in 1878 at San Stefano[898] between Russia and Turkey, and that on the part of Russia, Germany, and France in 1895 against the peace treaty of Shimonoseki[899] between j.a.pan and China.

[Footnote 898: See above, -- 135, p. 190, No. 2.]

[Footnote 899: See R.G. II. pp. 457-463. Details concerning intervention have been given above, -- 134-138; see also below, vol. II. -- 50.]

[Sidenote: Accession.]

-- 532. Of accession there are two kinds. Accession means, firstly, the formal entrance of a third State into an existing treaty so that such State becomes a party to the treaty with all rights and duties arising therefrom. Such accession can take place only with the consent of the original contracting parties, and accession always const.i.tutes a treaty of itself. Very often the contracting parties stipulate expressly that the treaty shall be open to the accession of a certain State. And the so-called law-making treaties, as the Declaration of Paris or the Geneva Convention for example, regularly stipulate the option of accession of all such States as have not been originally contracting parties.

But there is, secondly, another kind of accession possible. For a State may enter into a treaty between other States for the purpose of guarantee.[900] This kind of accession makes the acceding State also a party to the treaty; but the rights and duties of the acceding State are different from the rights and duties of the other parties, for the former is a guarantor only, whereas the latter are directly affected by the treaty.

[Footnote 900: See above, -- 528.]

[Sidenote: Adhesion.]

-- 533. Adhesion is defined as such entrance of a third State into an existing treaty as takes place either with regard only to a part of the stipulations or with regard only to certain principles laid down in the treaty. Whereas through accession a third State becomes a party to the treaty with all the rights and duties arising from it, through adhesion a third State becomes a party only to such parts or principles of the treaty as it has adhered to. But it must be specially observed that the distinction between accession and adhesion is one made in theory, to which practice frequently does not correspond. Often treaties speak of accession of third States where in fact adhesion only is meant, and _vice versa_. Thus, article 6 of the Hague Convention with respect to the laws and customs of war on land stipulates the possibility of future _adhesion_ of non-signatory Powers, although accession is meant.

IX

EXPIRATION AND DISSOLUTION OF TREATIES

Vattel, II. ---- 198-205--Hall, -- 116--Westlake, I. pp.

284-286--Lawrence, -- 134--Halleck, I. pp. 293-296--Taylor, ---- 394-399--Wharton, II. -- 137A--Wheaton, -- 275--Moore, V. ---- 770-778--Bluntschli, ---- 450-461--Heffter, -- 99--Ullmann, -- 85--Bonfils, Nos. 855-860--Despagnet, Nos.

453-455--Pradier-Fodere, II. Nos. 1200-1218--Merignhac, II. p.

788--Rivier, II. -- 55--Nys, III. pp. 48-53--Calvo, III. ---- 1662-1668--Fiore, II. Nos. 1047-1052--Martens, I. -- 117--Jellinek, "Die rechtliche Natur der Staatenvertrage" (1880), pp.

62-64--Nippold, op. cit. pp. 235-248--Olivi, "Sull' estinzione dei trattati intern.a.z.ionali" (1883)--Schmidt, "Ueber die volkerrechtliche _clausula rebus sic stantibus_, &c."

(1907)--Kaufmann, "Das Wesen des Volkerrechts und die _clausula rebus sic stantibus_" (1911)--Bonucci in Z.V. IV. (1910), pp.

449-471.

[Sidenote: Expiration and Dissolution in Contradistinction to Fulfilment.]

-- 534. The binding force of treaties may terminate in four different ways, because a treaty may either expire, or be dissolved, or become void, or be cancelled.[901] The grounds of expiration of treaties are, first, expiration of the time for which a treaty was concluded, and, secondly, occurrence of a resolutive condition. Of grounds of dissolution of treaties there are three--namely, mutual consent, withdrawal by notice, and vital change of circ.u.mstances. In contradistinction to expiration and dissolution as well as to voidance and cancellation, performance of treaties does not terminate their binding force. A treaty whose obligation has been performed is as valid as before, although it is now of historical interest only.

[Footnote 901: The distinction made in the text between fulfilment, expiration, dissolution, voidance, and cancellation of treaties is, as far as I know, nowhere sharply drawn, although it would seem to be of considerable importance. Voidance and cancellation will be discussed below, ---- 540-544 and 545-549.]

[Sidenote: Expiration through Expiration of Time.]

-- 535. All such treaties as are concluded for a certain period of time only, expire with the expiration of such time, unless they are renewed or prolonged for another period. Such time-expiring treaties are frequently concluded, and no notice is necessary for their expirations, except when specially stipulated.

A treaty, however, may be concluded for a certain period of time only, but with the additional stipulation that the treaty shall after the lapse of such period be valid for another such period, unless one of the contracting parties gives notice in due time.

[Sidenote: Expiration through Resolutive Condition.]

-- 536. Different from time-expiring treaties are such as are concluded under a resolutive condition, which means under the condition that they shall at once expire with the occurrence of certain circ.u.mstances. As soon as these circ.u.mstances arise, the treaties expire.

[Sidenote: Mutual Consent.]

-- 537. A treaty, although concluded for ever or for a period of time which has not yet expired, may nevertheless always be dissolved by mutual consent of the contracting parties. Such mutual consent can become apparent in three different ways.

First, the parties can expressly and purposely declare that a treaty shall be dissolved; this is rescission. Or, secondly, they can conclude a new treaty concerning the same objects as those of a former treaty without any reference to the latter, although the two treaties are inconsistent with each other. This is subst.i.tution, and in such a case it is obvious that the treaty previously concluded was dissolved by tacit mutual consent. Or, thirdly, if the treaty is such as imposes obligations upon one of the contracting parties only, the other party can renounce its rights. Dissolution by renunciation is a case of dissolution by mutual consent, since acceptance of the renunciation is necessary.

[Sidenote: Withdrawal by Notice.]

-- 538. Treaties, provided they are not such as are concluded for ever, may also be dissolved by withdrawal, after notice by one of the parties.

Many treaties stipulate expressly the possibility of such withdrawal, and as a rule contain details in regard to form and period in which notice is to be given for the purpose of withdrawal. But there are other treaties which, although they do not expressly stipulate the possibility of withdrawal, can nevertheless be dissolved after notice by one of the contracting parties. To that cla.s.s belong all such treaties as are either not expressly concluded for ever or apparently not intended to set up an everlasting condition of things. Thus, for instance, a commercial treaty or a treaty of alliance not concluded for a fixed period only can always be dissolved after notice, although such notice be not expressly stipulated. Treaties, however, which are apparently intended, or expressly concluded, for the purpose of setting up an everlasting condition of things, and, further, treaties concluded for a certain period of time only, are as a rule not notifiable, although they can be dissolved by mutual consent of the contracting parties.

It must be emphasised that all treaties of peace and all boundary treaties belong to this cla.s.s. It cannot be denied that history records many cases in which treaties of peace have not established an everlasting condition of things, since one or both of the contracting States took up arms again as soon as they recovered from the exhausting effect of the previous war. But this does not prove either that such treaties can be dissolved through giving notice, or that, at any rate as far as International Law is concerned, they are not intended to create an everlasting condition of things.

[Sidenote: Vital Change of Circ.u.mstances.]

-- 539. Although, as just stated, treaties concluded for a certain period of time, and such treaties as are apparently intended or expressly contracted for the purpose of setting up an everlasting condition of things, cannot in principle be dissolved by withdrawal of one of the parties, there is an exception to this rule. For it is an almost universally recognised fact that vital changes of circ.u.mstances may be of such a kind as to justify a party in notifying an unnotifiable treaty. The vast majority of publicists, as well as all the Governments of the members of the Family of Nations, defend the principle _Conventio omnis intelligitur rebus sic stantibus_, and they agree,[902]

therefore, that all treaties are concluded under the tacit condition _rebus sic stantibus_. That this condition involves a certain amount of danger cannot be denied, for it can be, and indeed sometimes has been, abused for the purpose of hiding the violation of treaties behind the shield of law, and of covering shameful wrong with the mantle of righteousness. But all this cannot alter the fact that this exceptional condition is as necessary for International law and international intercourse as the very rule _pacta sunt servanda_. When, for example, the existence or the necessary development of a State stands in unavoidable conflict with such State's treaty obligations, the latter must give way, for self-preservation and development in accordance with the growth and the necessary requirements of the nation are the primary duties of every State. No State would consent to any such treaty as would hinder it in the fulfilment of these primary duties. The consent of a State to a treaty presupposes a conviction that such treaty is not fraught with danger to its existence and development, and implies a condition that, if by an unforeseen change of circ.u.mstances the obligations stipulated in the treaty should imperil the said State's existence and necessary development, the treaty, although by its nature unnotifiable, should nevertheless be notifiable.

[Footnote 902: See Bonucci in Z.V. IV. (1910), pp. 449-471. Many writers agree to it with great reluctance only and in a very limited sense, as, for instance, Grotius, II. c. 16, -- 25, No. 2; Vattel, II. -- 296; Kluber, -- 165. Some few writers, however, disagree altogether, as, for instance, Bynkershoek, "Quest. jur. public.," II. c. 10, and Wildman, "Inst.i.tutes of International Law," I. (1849), p. 175. Schmidt, op. cit.

pp. 97-118, would seem to reject the _clausula_ altogether, but can nevertheless not help recognising it in the end. A good survey of the practice of the States in the matter during the nineteenth century is given by Kaufmann, op. cit. pp. 12-37.]

The danger of the clause _rebus sic stantibus_ is to be found in the elastic meaning of the term "vital changes of circ.u.mstances," as, after all, a State must in every special case judge for itself whether or no there is a vital change of circ.u.mstances justifying its withdrawal from an unnotifiable treaty. On the other hand, the danger is counterbalanced by the fact that the frequent and unjustifiable use of the clause _rebus sic stantibus_ by a State would certainly destroy all its credit among the nations.

Be that as it may, it is generally agreed that certainly not every change of circ.u.mstances justifies a State in making use of the clause.

All agree that, although treaty obligations may through a change of circ.u.mstances become disagreeable, burdensome, and onerous, they must nevertheless be discharged. All agree, further, that a change of government and even a change in the form of a State, such as the turning of a monarchy into a republic and _vice versa_, does not alone and in itself justify a State in notifying such a treaty as is by its nature unnotifiable. On the other hand, all agree in regard to many cases in which the clause _rebus sic stantibus_ could justly be made use of.

Thus, for example, if a State enters into a treaty of alliance for a certain period of time, and if before the expiration of the alliance a change of circ.u.mstances occurs, so that now the alliance endangers the very existence of one of the contracting parties, all will agree that the clause _rebus sic stantibus_ would justify such party in notifying the treaty of alliance.

A certain amount of disagreement as to the cases in which the clause might or might not be justly applied will of course always remain. But the fact is remarkable that during the nineteenth century not many cases of the application of the clause have occurred. And the States and public opinion everywhere have come to the conviction that the clause _rebus sic stantibus_ ought not to give the right to a State at once to liberate itself from the obligations of a treaty, but only the claim to be released from these obligations by the other parties to the treaty.

Accordingly, when a State is of the opinion that the obligations of a treaty have through a vital change of circ.u.mstances become unbearable, it should first approach the other party or parties and request them to abrogate the treaty. And it is only when such abrogation is refused that a State may perhaps be justified in declaring that it could no longer consider itself bound by the obligations concerned. Thus, when, in 1870, during the Franco-German War, Russia declared her withdrawal from such stipulations of the Treaty of Paris of 1856 as concerned the neutralisation of the Black Sea and the restriction imposed upon Russia in regard to men-of-war in that sea, Great Britain protested, and a conference was held in London in 1871. Although by a treaty signed on March 13, 1871, this conference, consisting of the signatory Powers of the Treaty of Paris--namely, Austria, England, France, Germany, Italy, Russia, and Turkey--complied with the wishes of Russia and abolished the neutralisation of the Black Sea, it adopted in a protocol[903] of January 17, 1871, the following declaration:--"Que c'est un principe essentiel du droit des gens qu'aucune Puissance ne peut se delier des engagements d'un traite, ni en modifier les stipulations, qu'a la suite de l'a.s.sentiment des parties contractantes, au moyen d'une entente amicale."

[Footnote 903: See Martens, N.R.G. XVIII. p. 278.]

In spite of this declaration, signed also by herself, Russia in 1886 notified her withdrawal from article 59 of the Treaty of Berlin of 1878 stipulating the freedom of the port of Batoum.[904] The signatory Powers of the Treaty of Berlin seem to have tacitly consented, with the exception of Great Britain, which protested. Again, in October 1908, Austria-Hungary, in defiance of article 25 of the Treaty of Berlin, 1878, proclaimed her sovereignty over Bosnia and Herzegovina, which hitherto had been under her occupation and administration, and simultaneously Bulgaria, in defiance of article 1 of the same treaty, declared herself independent.[905] Thus the standard value of the Declaration of the Conference of London of 1871 has become doubtful again.

[Footnote 904: See Martens, N.R.G. 2nd Ser. XIV. p. 170, and Rolin-Jaequemyns in R.I. XIX. (1887), pp. 37-49.]

[Footnote 905: See above, -- 50, p. 76; Martens, N.R.G. 3rd Ser. II. p.

606; and Blociszewski in R.G. XVII. (1910), pp. 417-449. There is hardly any doubt that, if Austria-Hungary had not ignored the above-mentioned Declaration contained in the protocol of January 17, 1871, and had approached the Powers in the matter, the abrogation of article 25 of the Treaty of Berlin would have been granted and she would have been allowed to annex Bosnia and Herzegovina after having indemnified Turkey. This is to be inferred from the fact that, when Austria-Hungary proclaimed her sovereignty over the provinces, Turkey accepted compensation, and the Powers, which first had protested and demanded an international conference, consented to the abrogation of the Treaty of Berlin.]

X

VOIDANCE OF TREATIES

See the literature quoted at the commencement of -- 534.