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Published online by Cambridge University Press: 04 May 2017
Starting, as we must start, from the proposition, that in the international sphere, treaties are at any rate no less binding than are contracts in the municipal sphere, may we nevertheless agree that treaties become obsolete, and, if yes, when and in what conditions? Has Article 19 of the Covenant of the League in any way diminished the respect due to treaty obligations? These are questions, which have a special importance at a time when the world has recently been resettled by treaty, and it is worth while to give a little time to their examination. Such an examination may at least serve to clear our ideas, to suggest what are the limits of the doctrine, and to emphasize the necessity, if those limits are to be defined, of a resort to an international court of justice.
1 Spinoza, Tractatus Politicus. Ill, 14. Cf. what Spinoza's commentator said in 1899:“ It seems impossible, on any political or ethical principles whatever, to lay it down as an absolute proposition that the obligation of treaties is perpetual. Whence can governments derive the right of binding their subjects and successors for all time by,improvident undertaking.”Pollock, Spinoza: His Life and Character, 2nd ed., London, 1899, p. 307.
2 The Powers at the London Conference were Germany, Austria-Hungary, Great Britain,Russia and Turkey. The French representative appeared only at the last sitting of the conference.
3 See Hall, International Law, 7th ed., p.365.
4 Their names will be found in Hall, loc. dt.
5 Hall, vhi sup., p.359.
6 Westlake, International Law, Peace, 1st ed., p. 285.
7 Hirji Matji and others v. Cheong Yue Steamship Co. Ltd., L. R. 1926, A. C. 497, 509.See also the cases connected with the postponement of King Edward VII's coronation, discussed in Pollock on Contracts, 8th ed., p. 439.
8 See Digest, XLVI, 3, de solutionibus et liberationibm, 107: “ Verborum obligatio aut naturaliter resolvitur aut civiliter. Naturaliter, veluti solutione, aut cum res in stipulationem deducta, sine culpa promissoris in rebus humanis esse desiit . and cf. XLV, 1, de verborum obligationibus, 33, de interitu rei: “ Si Stichus, certo die dari promissus, ante -diem moriatur, non tenetur promissor.” Cf. also ibid., 23.
9 Westlake, International Law, Peace, p.285, 1st ed. (1904).
10 Had it been part of the neutrality of Switzerland it would have been in .the nature of a part of an international system, and the obsolescence of that system would have had to be demonstrated before the prohibitions in question could have been treated as terminated.
11 Whether a concordat is or is not technically a “Treaty ” is open to argument, the Holy See not being a “State ” in the sense in which that word is usually employed in international law (See e.g., the discussion of the point in an article by M. Ruz6 on the three concordats with Latvia, Bavaria and Poland, Revue de Droit International et de Legislation ComparSe, 3rd Series, Vol. VII, p. 45). But a concordat is certainly an engagement entered into by a State with an entity not subject to its own jurisdiction, and there is no reason to apply to it any different doctrines in relation to rebus sic stantibus from that applicable to an ordinary treaty.
12 See FaucHlle, Droit International Public, Vol. 1, Pt. I, 215 (3).
13 It is worth observing that this is not the language of Article 19 of the Covenant. Post,p. 99.
14 Palmerston commented on this circular: “ I should say that if you were to put the whole of it into a crucible, evaporate the gaseous parts and skim off the dross, you would find the rule to be peace and good fellowship with other governments.” Cambridge Modern History,Vol. XI, p. 106.
15 “ The classes of legal disputes concerning: (a) the interpretation of a treaty, (b) any question of international law, (c) the existence of any fact which, if established, would constitute a breach of an international obligation, (d) the nature or extent of the reparation to be made for the breach of an international obligation.”
16 The French version is not quite the same: “ L'Assemblée peut, de temps and autre, inviter les Membres de la Société and procéder and un nouvel examen des traits devenus inapplicable ainsi que des situations intemationales, dont le maintien pourrait mettre en pgril la paix du monde.” According to this text the idea of “ nouvel examen” (reconsideration) applies both to treaties and to international situations; in the English it is only treaties which are the subject of reconsideration. The English version clearly gives the better sense.
17 Whether it can be exercised by a maj ority or not, is a matter in controversy. Schiicking and Wehberg consider that the power is soexercisable. (Die Satzung des Volherbundes 2d ed., p.663). Contra the editor of Oppenheim, International Law, Peace, 167 (4),p. 229, of 3rd edition, with whom the Chilian delegate to the Assembly agrees (League of Nations, second Assembly, Plenary Meetings, pp. 462, 467). The view of the present writer is, On the whole, that what is wanted is unanimity, with the exception of the countries to whom the advice is given. It can hardly be supposed that both the Powers who are parties to the treaty must concur in the advice; for if they both thought the treaty inapplicable, they clearly would be ready to modify it without invoking the assistance of the Assembly.
18 League of Nations, second Assembly, Plenary Meetings, p. 446.
19 See Moore, , International Law Digest, Vol. V, p. 335 1926 Google Scholar and following, and Hirst, Life and Letters of Jefferson Thomas , Macmillan, pp. 312-3.
20 Moore, ubi sup., p. 336.
21 Judgment of the Judicial Committee of the Privy Council in Hirji Matji and others v.Cheong etc. Steamship Co. Ltd., ante, p. 92.
22 Cf. J. S. Mills' remarks in the Fortnightly Review, Vol. VIII, U. S. (1870), p. 715(quoted from Moore, International Law Digest, Vol. V, p. 349): “ Nations should be willing to abide by the rules. They should abstain from imposing conditions which, on any just and reasonable view of human affairs, cannot be expected to be kept. And they should conclude their treaties as commercial treaties are usually concluded, only for a term of years. ” (written with reference to the Russian denunciation of the Black Sea clauses of the Treaty of Paris).
