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 circumstances 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 The danger of the clause rebus sic stantibus is to be found in the elastic meaning of the term "vital changes of circumstances," as, after all, a State must in every special case judge for itself whether there is or is not a vital change of circumstances 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.] All Be that as it may, it is generally agreed that every change of circumstances by no means justifies a State in making use of the clause. All agree that, although treaty obligations may through a change of circumstances become disagreeable, burdensome, and onerous, they must nevertheless be discharged. 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 circumstances 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 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. 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-ofwar 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 protocol1 of January 17, 1871, the following declaration :-" Que c'est un principe essentiel du droit des gens qu'aucune Puissance ne peut se délier des engagements d'un traité, ni en modifier les stipulations, qu'à la suite de l'assentiment des parties contractantes, au moyen d'une entente amicale." 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. The signatory Powers of the Treaty of Berlin seem to have tacitly consented, with the exception of Great Britain, which protested. Thus the standard value of the declaration of the Conference of London of 1871 has become doubtful again. X VOIDANCE OF TREATIES See the literature quoted at the commencement of § 534. of Void § 540. A treaty, although it has neither expired Grounds nor been dissolved, may nevertheless lose its binding ance. force by becoming void. And such voidance may have different grounds-namely, extinction of one of the two contracting parties, impossibility of execution, realisation of the purpose of the treaty otherwise than by fulfilment, and, lastly, extinction of such object as was concerned in a treaty. tion of one of the tracting § 541. All treaties concluded between two States Extincbecome void through the extinction of one of the contracting parties, provided they do not devolve two Conupon such State as succeeds to the extinct State. Parties. That some treaties devolve upon the successor has been shown above (§ 82), but many treaties do not. On this ground all political treaties, such as treaties of alliance, guarantee, neutrality, and the like, become void. 1 See Martens, N.R.G. 2nd ser. be confounded with the voidance XIV. p. 170. of a treaty from its very begin2 But such voidance must not ning. (See above, § 501.) Impos. sibility of § 542. All treaties whose execution becomes imposExecution. sible subsequently to their conclusion are thereby rendered void. A frequently quoted example is that of three States concluding a treaty of alliance and subsequent war breaking out between two of the contracting parties. In such case it is impossible for the third party to execute the treaty, and it becomes void. It must, however, be added that the impossibility of execution may be temporary only, and that then the treaty is not void but suspended only. Realisation of Purpose of § 543. All treaties whose purpose is realised otherwise than by fulfilment become void. For Treaty example, a treaty concluded by two States for the other than purpose of inducing a third State to undertake a certain obligation becomes void if the third State voluntarily undertakes the same obligation before the two contracting States have had an opportunity of approaching the third State with regard to the ment. Extinction of such Object as was concerned in a Treaty. matter. § 544. All treaties whose obligations concern certain object become void through the extinction of such object. Treaties, for example, concluded in regard to a certain island become void when such island disappears through the operation of nature, as likewise do treaties concerning a third State when such State merges in another. See also above, § 521, where the case is mentioned that a treaty essentially presupposes a certain form of government, and for this reason cannot be executed when this form of government undergoes a change. XI CANCELLATION OF TREATIES See the literature quoted at the commencement of § 534. of Cancel $545. A treaty, although it has neither expired, Grounds nor been dissolved, nor become void, may neverthe- lation. less lose its binding force by cancellation. Causes of cancellation are fourfold-namely, inconsistency with International Law created subsequently to the conclusion of the treaty, violation by one of the contracting parties, subsequent change of status of one of them, and war. tency with sequent Law. § 546. Just as treaties have no binding force Inconsiswhen concluded with reference to an illegal object, subso they lose their binding force when through a Interprogressive development of International Law they national become inconsistent with the latter. Through the abolition of privateering among the signatory Powers of the Declaration of Paris of 1856, for example, all treaties between some of these Powers based on privateering as a recognised institution of International Law were ipso facto cancelled. But it must be emphasised that subsequent Municipal Law can certainly have no such influence upon existing treaties. On occasions, indeed, subsequent Municipal Law creates for a State a conflict between its treaty obligations and such law. In such case this State must endeavour to obtain a release by the other contracting party from these obligations. by one of $547. Violation of a treaty by one of the con- Violation tracting States does not ipso facto cancel such treaty, the Conbut it is in the discretion of the other party to cancel tracting it on the ground of violation. There is no unanimity among writers on International Law in regard to Parties. |