Jump to Content Jump to Main Navigation
The Law of Treaties by McNair, Lord (10th July 1986)

Part VII State Succession and other Changes, Ch.XLII Other Changes in Circumstances

Lord McNair Q.C., LL.D., F.B.A.

From: The Law of Treaties

Lord McNair

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 21 May 2019

(p. 681) Chapter XLII  Other Changes in Circumstances

  • Grotius, De jure belli ac pacis, ii, cap. xvi, § 25.
  • Phillimore, i, ch. vii (Changes in a State).
  • Oppenheim, i, § 539.
  • Moore, Digest, v, §§ 772, 773.
  • Hackworth, v, §§ 511, 512.
  • Lauterpacht, Development, pp. 84–86.
  • Fitzmaurice, International Law Commission, 2nd Report, Articles 21–23.

  • Rousseau, pp. 578–615.
  • Brierly, 11 Grotius Society (1926), pp. 11–20.
  • Fairman, 29 A.J. (1935), pp. 219–36.
  • Chesney Hill, The Doctrine of ‘Rebus sic Stantibus’ (University of Missouri Studies, 1934) (a valuable survey).
  • Briggs, 36 A.J. (1942). pp. 89–96.
  • See also the literature cited in Ch. XXXV, ‘Revision of Treaties’.

WE shall endeavour to state the general legal opinion upon the effect of changed circumstances, while reminding the reader that it is a topic upon which British Governments have, almost consistently, held strict views; they have insisted upon the legal character of certain treaty obligations to which some other Governments, often in complete good faith, are prone to assign a less legal and more political character. We shall see that this contrast of attitude has not infrequently manifested itself in the readiness of certain foreign Governments to invoke the doctrine of ‘conventio omnis intelligitur rebus sic stantibus’,1 which, in the sense usually understood (p. 682) by foreign lawyers, is unknown in British legal thought and literature. We believe that what is described in this chapter as the British attitude is to a large extent shared throughout the Commonwealth and in the United States of America.1

(1)  Changes of Political Power and Influence

The general conclusion which can be drawn from the practice of successive British Governments is that they do not recognize the doctrine that changes in the balance of power, or in the relative strength and influence of the contracting parties, or in other circumstances of this nature, can be advanced either as a ground of the discharge of a treaty ipso facto, or as entitling one party to terminate or modify a treaty without the consent of the other. This is evident (inter alia) from an examination of the instances previously cited in Chapter XXX. In several of those instances this doctrine was invoked by the party seeking to abrogate the treaty, e.g. by Russia in 1870 (not explicitly but only inferentially) and by some of the apologists for the German invasion of Belgium in 1914, but it is believed that no instance will be found of the British acceptance of this view. According to the view of the United Kingdom Government no such tacit condition can be implied in treaties, and if it is desired to import such a condition it must be done expressly.

(p. 683) On the other hand, successive British Governments have been ready to regard a change in political conditions as a ground for a re-examination of a treaty by all parties and have been willing to enter into conference with that object when there were any prospects of an agreed revision resulting.

For instance, the United Kingdom was a party to the Covenant of the League of Nations of which Article 19 is as follows:

The Assembly may from time to time advise the reconsideration by Members of the League of treaties which have become inapplicable, and the consideration of international conditions whose continuance might endanger the peace of the world.1

And the principle of this Article was reaffirmed by the United Kingdom in Article 2 of the Treaty of 7 June 1933 with France, Germany, and Italy, commonly referred to as the ‘Pact of Rome’.

It was also a party to the Washington Treaty of 6 February 1922 for the Limitation of Naval Armament, of which Article 21, containing an explicit reference to ‘changed circumstances’, is as follows:

If during the term of the present Treaty the requirements of the national security of any Contracting Power in respect of naval defence are, in the opinion of that Power, materially affected by any change of circumstances, the Contracting Powers will, at the request of such Power, meet in conference with a view to the reconsideration of the provisions of the Treaty and its amendment by mutual agreement. …

(This provision may be regarded as typical of the British attitude.)

Again on 18 June 1935 the United Kingdom by an Exchange of Notes with Germany in effect agreed for its part not to object to a departure by Germany from Part V of the Treaty of Versailles, thereby substituting as between those two Powers new provisions for the limitation of German naval armaments.2

Three specific instances of a revision of treaty stipulations by consent may be taken from the sphere of Extra-territorial Jurisdiction.

(p. 684) On 10 December 1921 the British Empire was party to a Resolution which promised sympathy to the aspiration expressed by China to the effect that ‘immediately, or as soon as circumstances will permit, existing limitations upon China’s political, jurisdictional, and administrative freedom of action are to be removed’, and concurred in the appointment of the Commission on Extraterritoriality in China which visited that country and reported1 on the then condition of China’s judicial system and methods of judicial administration with a view to assisting her to modernize her system.

By the Treaty of Lausanne of 24 July 1923 Great Britain, having declined to recognize Turkey’s unilateral repudiation of the Capitulations in 1914, concurred with other States in the following Article (28) of that Treaty: ‘Each of the High Contracting Parties hereby accepts, in so far as it is concerned, the complete abolition of the Capitulations in Turkey in every respect’ upon being satisfied that Turkey was making an effort to modernize her judicial system, and upon receiving the assurances contained in the ‘Convention respecting conditions of Residence and Business and Jurisdiction’ and the ‘Declaration relating to the Administration of Justice in Turkey’ annexed to that Treaty.

But the view of the United Kingdom Government is that, unless and until the community of States constitutes an international authority having power to vary treaty obligations without the consent of the parties, the rule that treaties cannot be abrogated or modified without the consent of all parties must form part of the basis of the international community.

In 1926 the United Kingdom Government renounced their extraterritorial judicial rights in Albania, formerly a part of the Ottoman Empire, and in the Exchange of Notes with the Albanian Government which recorded this renunciation the United Kingdom Government announced on 6 February 1926 that they had

decided to renounce and abandon their extraterritorial judicial rights, within the limits of Albanian territory, established and secured by former treaties, in the belief that the administration of justice by the Courts of the Albanian Republic is such as to warrant and justify their action in so doing.

Many similar instances in the sphere of extraterritorial judicial rights could be adduced.

(p. 685) (2)  Changes affecting the specific raison d’être of a Treaty

There is evidence that the United Kingdom Government regards the cessation of, or a vital change in, the specific raison d’être of a treaty as a ground for recognizing the ipso facto termination of a treaty. This occurs most plainly in the case of a physical change such as the permanent drying-up of a river, the permanent submersion of an island, the complete exhaustion of a sedentary fishery, &c. But the same principle is applied to a change which, though not purely physical, destroys the very object of a treaty stipulation: cessante ratione legis, cessat ipsa lex.1 This principle is illustrated by the following Reports by two different King’s Advocates, arising out of the separation of Brazil from Portugal in 1822.

  1. (i)  Article 4 of the Anglo-Portuguese Treaty of 22 January 1815 (inter alia), prohibited to Portuguese subjects the traffic in slaves ‘except to the Southward of the Line’ and except for the purpose of supplying the Transatlantic Possessions belonging to the Crown of Portugal. Article 1 of the Anglo-Portuguese Additional Convention of 28 July 1817 prohibited (inter alia) the carriage of slaves in Portuguese ships to any port outside the dominions of Portugal. The later separation of Brazil and Portugal raised the question of the continuance of the validity of this exception when the cause of it, namely the supply of slaves to the Portuguese Transatlantic Possessions, had ceased. Upon this question advice was given in a

    Report by the King’s Advocate dated 17 October 18222

    Sir,

    I am honoured by your Commands signified in Mr. Planta’s Letter of the 16th Inst. transmitting Copies of the Decree and Manifesto lately issued by the Prince Regent of Brazil relative to the Independence of that Country. And requesting that I would report my opinion, with reference to the 3rd and 4th head of the first Article of the Treaty of the 28 July 1817, whether the declaration of Independence by Brazil does not constitute such de facto separation of those Colonies from the Mother Country, as to authorize Great Britain to declare its intention of not allowing the Portuguese Flag to cover cargoes of Negroes destined for importation into the Brazils.

    In obedience to your Commands I have the honor to report that, supposing the separation of the Brazils from Portugal to be general and complete, (p. 686) according to the intentions declared in these Papers, I think die Treaty of the 28 July 1817 would not reserve to Portugal the right of carrying Slaves to the Brazils. Such a trade would be inconsistent with the declarations of the first article, and the specific limitations of the form of passport, P. 6, and the 9th Article of the Instructions. It would also be repugnant to the spirit of the solemn engagements of the two Countries, as declared, in the 10th Art. of the Treaty of the 19th Feb. 1810 and in the Act of Congress No. 151 which express the resolution of wholly abolishing the Slave Trade, with such exceptions as were deemed necessary to supply the defects of colonial population, and to protect the interests of Portugal, in her relations with the Brazils as colonial possessions. Those grounds of exception being removed by the change in the political relations of the Brazils, the abolition becomes absolute, I conceive, on the part of Portugal, so far as may relate to the Brazils; though if there should be any other Colonial Possessions of Portugal to which the Provisions of the Treaty may be applicable, they may remain in force as to them.

    In the event contemplated therefore, I think Great Britain might be justified in declaring the intention of not allowing the Portuguese Flag to cover cargoes of negroes destined for importation into the Brazils. And I presume that such a consequence of the change would appear more just and natural, the more the subject was considered, with reference to the community of Interest, or to the influence of Authority, on which the conditions of the Treaty mainly depended. But I humbly take the liberty of suggesting further, what has occurred to me in offering these observations, whether it may not be highly important to consider the effect of such an intimation on the operation of the Treaty as now existing, on Brazilian Ships, in which the trade is principally carried on; as allowance would be made for Brazilian Interests heretofore embarked under the Portuguese Flag, and it may be expected that Brazilian Ships will in future assume a distinct Flag. If the Brazils should cease immediately to be identified with Portugal, the restraints of the Treaty may cease to be applicable to them, and great difficulties may arise, as to captures, made in any intermediate period, before the Relations between this Country and the Brazils shall be established.

    I have the honor to be, &c.,

    Christ. Robinson.

The following extract from a Report2 by Jenner, King’s Advocate, dated 18 January 1832, evidently relates to the same matter:

With reference therefore to these stipulations I am humbly of opinion that as there now no longer exists any legitimate object, for which the subjects of Portugal can engage in the Slave Trade, His Majesty’s Government (p. 687) will be justified in calling upon Portugal to declare the Slave Trade to be abolished, throughout the whole Portuguese Dominions, and in concert with His Majesty to agree upon such alterations of the additional Convention of the 28th July 1817, as may most effectually tend to the entire suppression of the Trade: But, until this shall have been done, I am humbly of opinion that it will not be competent to British Cruizers to seize Portuguese Vessels engaged in the Slave Trade, under any other circumstances, than those specified in the Treaty, and, consequently, that for this purpose it will be necessary to enter into further Negotiations with the existing Government of Portugal.

A less important question arising from the same political event was answered by the following

Report by the King’s Advocate dated 19 February 18341

Doctors’ Commons.

My Lord,

I am honored with your Lordship’s Commands signified in Sir George Shee’s Letter of the 12th instant, transmitting a Note, received from the Portuguese Minister at this Court, complaining of his having been charged Postage on some Packets which he has received by the last Mails from Brazil, in contravention as he asserts of the 10th Article of the Convention concluded in 1810 between England and Portugal upon the subject of the Establishment of Packets between the two Countries, also inclosing a Letter received from the Post Office upon this subject; And your Lordship is pleased to request that I would take these papers into consideration, and report my opinion, whether since the Separation of Portugal and Brazil by a formal Treaty, there can be any ground for allowing to the Portuguese Minister here the privilege of sending and receiving his Dispatches to and from Rio de Janeiro free; and a similar privilege to the Brazilian Minister to and from Lisbon; or whether the privilege of each Minister should not be confined to his communications with the Court which he represents.

In obedience to your Lordship’s Commands I have the Honor to report that, as Brazil and Portugal now form two separate and distinct, independent Sovereignties, I am humbly of opinion that the Portuguese Minister at this Court is not entitled under the Provisions of the 10th Article of the Treaty to claim the Privilege of having his Dispatches to and from Rio de Janeiro conveyed free of postage, but that such Exemption applies only to communications with his own Government in Portugal, and that the same rule mutatis mutandis is applicable to those of the Brazilian Minister.

I have, &c.,

Herbert Jenner.

In those cases in which the destruction of the subject-matter or the other cessation of the raison d’être of a treaty might be (p. 688) held to put an end to it, it is believed that the legal advisers of the United Kingdom Government, following the common law, would hold the view that this result was produced by the operation of an implied condition to that effect, so that the treaty came to an end ipso facto upon and as from the happening of the resolutive event, and without the need of any denunciation of the treaty by either party. The event dissolves the treaty for both parties, and does not merely excuse one of them.1

It may be added that if the event alleged to have dissolved the treaty has come about as a result of the action of one of the parties to it, it is unlikely that an international tribunal would sustain the plea of that party that the treaty has come to an end. There is also little doubt that the dissolution affects only that part of the treaty which remains executory and does not disturb what has been executed or rights already acquired in pursuance of the execution of the treaty.

It may be that in course of time international tribunals will adopt and develop the doctrine of an implied condition (or the civilian doctrine as to the dissolution of contracts naturaliter) and apply it to changes of circumstances not at present within its scope, but it is believed to be the view of the United Kingdom Government that at present the doctrine does not extend further than is described above.

The Case-law. The contribution made by international tribunals to the effect upon treaties of the kind of changes discussed above does not amount to a great deal. The Permanent Court of International Justice had very little opportunity of considering the rebus sic stantibus doctrine.

In 1923 in the Advisory Opinion2 on the Nationality Decrees in Tunis and Morocco the Permanent Court prudently refrained from examining the rebus sic stantibus doctrine invoked by the French Government, because on the facts as found by the court it was unnecessary to do so.

In 1932 in the Free Zones case between France and Switzerland (p. 689) the French Government again invoked this doctrine. The manner in which it was handled is instructive and deserves close examination.1 The origin of the litigation was Article 435 of the Treaty of Versailles of 1919, to which Switzerland was not a party. Without attempting to describe the course of this lengthy piece of litigation, it suffices for our immediate purpose to note the following passages in the court’s judgment of 7 June 1932:

The [French] argument in favour of the view that the stipulations [of 1815] establishing the [free2] zones have lapsed is that these zones were created in view of and because of the existence of a particular state of facts, that this state of facts has now disappeared owing to Switzerland’s own action, and that in consequence the Court, which is charged with the mission of settling the dispute between the Parties, is entitled as between them to declare that the stipulations have lapsed.3

As regards the zone adjacent to Geneva, the main fact which the French Government asserted in its argument was that in 1815 the Canton of Geneva formed a free trade area, that the withdrawal of the French and Sardinian customs lines from the relevant portions of their respective territories made ‘the area of Geneva and that of the zones an economic unit’, which was destroyed by the institution of the Swiss Federal Customs in 1849, thus putting ‘an end to the conditions in view of which the zones had been created …’.4

As the French argument fails on the facts, it became unnecessary for the Court to consider any of the questions of principle which arose in connection with the theory of the lapse [la théorie de la caducité] of treaties by reason of change of circumstances, such as the extent to which the theory can be regarded as constituting a rule of international law, the occasions on which and the method by which effect can be given to the theory if recognized, and the question whether it would apply to treaties establishing rights such as that which Switzerland derived from the treaties of 1815 and 1812.5

Nevertheless, it is interesting to note from the court’s examination of them the facts which, if they had been proved, would or might have been relevant. The court held that, first of all, it was necessary for France ‘to prove that it was in consideration of the absence of customs duties at Geneva that the Powers decided, in 1815, in favour of the creation of the zones’. This France was unable to do. The French argument on this point therefore

(p. 690) fails from lack of proof that the zones were in fact established in view of the existence of circumstances which ceased to exist when the Federal Customs were instituted in 1849.1

Again, after referring to certain action by France relating to customs in 1860, the court observed that this action would be incomprehensible if the parties (including France) to the Treaty of 20 November 1815 had thought

that the maintenance of the customs régime existing at that time in the Canton of Geneva was a condition precedent to the withdrawal of the French and Sardinian customs levies.2

As regards the zone of Saint-Gingolph, although

there were in fact no customs duties levied at Saint-Gingolph-Valais at the time that the Saint-Gingolph zone was created, there is no sufficient proof that the Saint-Gingolph zone was created in view of this circumstance.3

We have dealt with the Free Zones judgment at some length because although the court only dealt with the materials presented to it, the judgment appears to indicate certain lines upon which the question of the effect of changed conditions upon the duration of treaties can be developed within the limits of safety and the public interest. We submit that the inference that can reasonably be drawn from this case is that when a tribunal is invited to hold that a treaty is void and has lost its effect by reason of a change of the circumstances prevailing when it was concluded, a tribunal would not examine the legal validity of such an argument unless it could be shown that the treaty was made in view of the existence of the circumstances alleged to have changed, so as to give their continuance the force of a condition precedent to the conclusion of the treaty.

Nor have other tribunals contributed much upon the practical application of the rebus sic stantibus doctrine. We shall mention two decisions of the Swiss Federal Court upon intercantonal disputes which have some value by way of analogy.

In 1882 in Lucerne v. Aargau4 that court remarked that:

There is no doubt that treaties may be denounced unilaterally by the party under obligation, if their continuance is incompatible with its vital interests as an independent commonwealth or with its fundamental purposes, or if there has taken place such a change of circumstances as, according to (p. 691) the apparent intention of the parties, constituted, at the time of its creation, an implied condition of its continued existence.

The binding obligation of treaties has made much progress since 1882, and we should be surprised if an international tribunal today adopted the first branch of this statement which we have italicized; the second branch is free from objection.

In Thurgau v. St. Gallen1 the same court, while referring to the earlier decision and leaving open the question ‘whether this does not in reality go a little too far’, stressed the necessity of invoking a change of circumstances as a reason for denunciation soon after ‘the change was first clearly perceived’ and declined to apply the doctrine in this case.

In 1925 in Bremen (Free Hansa City) v. Prussia2 before the Supreme Court of Germany, the rebus sic stantibus doctrine was invoked by Bremen for the purpose of rescinding certain clauses in a ‘treaty’ of 21 May 1904 between Bremen and Prussia, which effected an exchange of portions of territory belonging to each of them with a view to enabling Bremen to extend her maritime transport facilities. Prussia had agreed to the ‘treaty’ only in consideration of certain restrictive clauses designed to safeguard her adjoining provinces from competition by the Bremen fishing industry. Bremen alleged that the effect of the first World War and the Treaty of Versailles had effected a complete change in her shipping and navigation, with the result that the clauses restricting her fishing industry had become most oppressive. The Supreme Court, applying international law by analogy, while not rejecting the rebus sic stantibus doctrine, declined to apply it in this case (even subject to compensation), being satisfied that the restrictive clauses were an integral part of the ‘treaty’ and that Prussia would not have accepted it in the absence of these clauses.(p. 692)

Footnotes:

1  This doctrine is often referred to as the clausula rebus sic stantibus. One explanation of this term is that at one time it was common to insert in treaties an express provision or clausula to this effect, and it is suggested by some of the writers who are addicted to this doctrine that the terms of the old and abandoned clausula must now be implied.

Brierly, 11 Grotius Society (1926), at p. 13, quotes as a sample of the doctrine rebus sic stantibus an opinion which Zouche (De Jure Feciali, 11. iv. 25) attributes to the advisers of Queen Elizabeth and is translated in the Carnegie Endowment edition (by Brierly) as follows: ‘every convention, although sworn, must be understood to hold only while things remain in the same state; that a man is more strongly bound to his country than to a private promise; and that princes are not bound by their contract when the contract results in public injury.’ Bynkershoek (Quaestionum Juris Publici Libri Duo), ii, cap. x, appears to attribute this opinion to the frailty of woman and says ‘satis absurdissime mulier respond it’.

The Harvard Draft Convention, which disclaims the intention of being purely lex lata, contains the following:

Article 28. Rebus sic stantibus.

(a)  A treaty entered into with reference to the existence of a state of facts the continued existence of which was envisaged by the parties as a determining factor moving them to undertake the obligations stipulated, may be declared by a competent international tribunal or authority to have ceased to be binding, in the sense of calling for further performance, when that state of facts has been essentially changed.

(b)  Pending agreement by the parties upon and decision by a competent international tribunal or authority, the party which seeks such a declaration may provisionally suspend performance of its obligations under the treaty.

(c)  A provisional suspension of performance by the party seeking such a declaration will not be justified definitively until a decision to this effect has been rendered by the competent international tribunal or authority.

1  It must be remembered that very many of the rules of international law date from a time when arbitration between States was either non-existent or very rare. Consequently, these rules were evolved rather as guidance for statesmen and diplomatists than as guidance for advocates and judges. I suggest that the so-called clausula rebus sic stantibus is one of these rules, for the argument that circumstances have changed since a bargain was made makes a stronger appeal to diplomatists and statesmen than it does to lawyers. We must bear in mind the difference in atmosphere that results from the availability of arbitration and judicial settlement—a fact which in itself promotes the tendency of international law to become more legal.

1  See also Article 11 (2) of the Covenant; and see Ch. XXXV, ‘Revision of Treaties’. Article 19 gave rise to an extensive literature, some part of which has more than a passing interest; see the last note to Oppenheim, i, § 167 o, and add Goellner, La Révision des traités (1925), Catellani, La Revision dei trattati (1931), Whitton, The Sanctity of Treaties (1935) (International Conciliation pamphlet, No. 313), Quincy Wright, Proceedings of American Society of International Law (1936), pp. 55–73.

2  See above, pp. 320–1.

1  Parliamentary Papers: China, No. 3 (1926); Cmd. 2774.

1  This maxim, like others, is bandied about somewhat freely and perhaps out of context; it is mentioned in Broom’s Legal Maxims. Lex seems to mean not a law but any provision contained in a legal instrument, be it a statute or a contract.

2  F.O. 83. 2321.

1  That is, Annex XV to the Congress Treaty of Vienna of 1815.

2  F.O. 83. 2346: Slave Trade.

1  F.O. 83. 2323.

1  The common law doctrine which may have a contribution to make to the solution by international law of these very difficult questions of the effect of changed circumstances on treaties is commonly known as Frustration of Contract, of which some account will be found in my Legal Effects of War (3rd ed., 1948), ch. 6. For a decision in which the Supreme Court of Canada held that ‘the conditions constituting the raison d’être’ of certain articles of the Jay Treaty had ceased to exist, see Francis v. The Queen, [1956] 3 Dominion Law Reports (2d.) 641; International Law Reports, 1956, p. 459.

2  Ser. B, No. 4, at p. 29; there is some discussion of the doctrine by the Swiss Federal Court in In re Lepeschkin, A.D. 1923–4, No. 189.

1  Ser. A/B, No. 46, at pp. 155–8.

2  Free of customs.

3  p. 156.

4  p. 156.

5  p. 158.

1  p. 157.

2  p. 157.

3  p. 158.

4  Lauterpacht, Private Law Sources and Analogies (1927), p. 169, n. 2, and pp. 167–74; Entscheidungen des Schweizerischen Bundes-gerichts, vol. 8, p. 57.

1  Ibid., vol. 54, i, p. 188; A.D. 1927–8, No. 289.

2  A.D. 1925–6, No. 266: Lucerne v. Aargau was referred to. In Rothschild and Sons v. Egyptian Government, A.D. 1925–6, No. 14, the Mixed Court of Appeal in Egypt expressed the opinion that the rebus sic stantibus doctrine applied only to obligations of an indefinite duration. For some other references, see Bertaco v. Bancel, A.D. 1935–7, No. 201, and note by Rousseau in Sirey, Recueil général des lois et des arrêts, 1937, Part 2, p. 121. Upon obsolescence, see Fitzmaurice, 2nd Report on Treaties to International Law Commission, Art. 15 (3) and comment; and Miss Gutteridge, 6 I.L.Q. (1950), p. 459 (n).