UNILATERAL DENUNCIATION OF TREATY

UNILATERAL DENUNCIATION OF TREATY BECAUSE OF PRIOR VIOLATIONS OF

OBLIGATIONS BY OTHER PARTY

BHEK PATI SINHA

Indiana State University

With a foreword by

OLIVER J. LISSITZYN

Columbia University

• MARTINUS NI]HOFF I THE HAGUE 11966

ISBN 978-94-011-8745-9 ISBN 978-94-011-9600-0 (e8ook)

DOl 10.10071978-94-011-9600-0

Copyright I966 by Martinus Nijholl, The Hague Netherlands All rights reserved, including the right to translate or to

reproduce this book or parts there 01 in any lorm

To Kerstin

Table of Cases

Abbreviations

Foreword

Preface

TABLE OF CONTENTS

I. STATEMENT OF THE PROBLEM

II. JURISTS AND UNILATERAL DENUNCIATION

Introduction. Zouche Wolff. Grotius Vattel. Wildman Rivier. Halleck. Kent .. F. von Martens. Calvo. Bonfils . Bello .. Cavaglieri Guggenheim Ross .. . Liszt .. . Bluntschli . Sauer ... Spiropoulos Schwarzenberger Fauchille Rousseau Anzilotti Verdross. Fenwick. Dupuis . Axell Moller

XI

XIII

XV

XIX

5

5 8

9 9

9 9

10

II

II

II

12

12

12

13 13

14 14 14 15 15 15 15 16

17 17 18 18 19

VIII

Fiore .. Wheaton Moore .. Pitt Cobbett . Hall Crandall .. Oppenheim Hyde. Brierly .. McNair ..

TABLE OF CONTENTS

19 20

20

20

20

21

21

22

23 23

Fitzmaurice 24 Korovin. . 26 The Harvard Research in International Law . 26 The American Law Institute. . . . . . . . 27 The United Nations International Law Commission. 29 Conclusion. . . . . . . . . . . . . . . . 33

III. JUDGES AND UNILATERAL DENUNCIATION 35

Introduction. . . . . . . . . . . . . . . 35 The Tacna Arica Case. . . . . . . . . . . 37 The Diversion of Water from the Meuse Case. 38 Ware v. Hylton . . . . . . 40 In re Thomas . . . . . . . 42 Hooper v. The United States. 44 The Chinese Exclusion Case 45 Terlinden v. Ames . . . . . 47 Charlton v. Kelly. . . . . . 48 The Blonde and Other Ships Case. 50 In re Lepeschkin. . . . . . . . 52 Attorney-General of the Court of Appeal of Brussels v. Aron . 53 In re Totarko . . . . . . . . . . 53 Security for Costs (Switzerland) Case 54 Conclusion. . . . . . . . . . . . 55

IV. PRIVATE LAW ANALOGY AND UNILATERAL DENUNCIATION. 58

Introduction. 58 French Law . . . . . . . . . . . . . . . . . . . 60 German Law. . . . . . . . . . . . . . . . . . . 62 Other Continental and Latin American Legal Systems. 65 English Law . 65 American Law 67 Indian Law 70 Soviet Law . 71 IslaInic Law . 72 Japanese Law 72 Chinese Law . 73 Conclusion. . 74

TABLE OF CONTENTS IX

V. RELATED PROBLEMS. . . . . . . . . . . 77

Pacta Sunt Servanda and Unilateral Denunciation 77 Unilateral Denunciation and Unanimity Rule . . 79 The Rule of Extinctive Prescription and Unilateral Denunciation. 81 A Violated Treaty - Void or Voidable? . . 83 The Limitation of Substantial Breach. . . . . . 84 The Principle of Severability of Provisions. . . . 88 Unilateral Denunciation and Law-Making Treaty. 91 The Concept of the Rule of Law and Unilateral Denunciation. 96 The Sanction of What is Proper and Public Opinion . . . 99

VI. PRACTICE OF STATES AND UNILATERAL DENUNCIATION 104

Introduction. . . . . . . . . . . . . . . . . . . . 104 The Anglo-American Treaty of Peace of 3 September 1783 105 The Franco-American Treaties, 1778-1790. . . . . . . 106 The Ancient Anglo-Spanish Treaties . . . . . . . . . 109 Convention between Great Britain, the Netherlands and Russia,

19 May 1815. . . . . . . . . . . . . . . . . 1I0 The Russo-British Convention of 16 November 1831 III

The Declaration of Paris of 1856 . . . . . . . . . 1I5 The Anglo-Transval Boers Agreement of 1852 . . . 1I6 The Treaty of lIth May 1867 on the Neutrality of Luxemburg. 117 The Treaty of London of 1839 on the Neutrality of Belgium. . 1I9 The Treaty of Paris of 1856 . . . . . . . . . . . . . . . 120 The Anglo-Uruguayan Postal Agreement of 28 November 1853 . 124 The Anglo-Honduran Agreement of 27 August 1856. . . . . 124 The Proposed Anglo-American Treaty of Extradition of 1876. 125 The Anglo-American Treaty of Extradition of 9 August 1842 125 The Clayton-Bulwer Treaty of 19 April 1850. . . . . . . . 125 The Sino-American Treaties, 1844-1880 . . . . . . . . . . 129 Reciprocal Trade Agreements between the U.S.A. and Other States 130 The Italo-American Extradition Conventions of 8 February 1864 &

1884 . . . . . . . . . . . . . . . . . . . . . . . .. 132 The Russo-American Treaty of Commerce and Navigation, 1832 . 133 The Fifth Treaty of the Triple Alliance, 5 December 1912. . .. 134 The Prusso-American Treaty of Commerce and Navigation, 1828 138 The Japanese-American Agreement of 1907-08. . . . . . .. 139 Statute of the Permanent Court of International Justice. . .. 140 Treaty for the Renunciation of War (Briand-Kellog Pact), 1928 . 141 Treaty of Friendship, Commerce and Consular Rights between Ger-

many and the United States, 8 December 1923 143 The Versailles Treaty, 28 January 1919 144 The Locarno Treaty, 16 October 1925. . . . . 149 The Anglo-Guatemalan Treaty of 1859. . . . . 154 The International Load Line Convention, 5 July 1930 159 The Munich Agreement, 29 September 1938 159 The Soviet-Yugoslav Treaty, February 1948 162 Yugoslav-Albanian Treaties . . . . . . . 163

x TABLE OF CONTENTS

The Hungaro-Yugoslav Treaty of 24 July 1947. . . . . . 166 The Soviet-Yugoslav Treaty of Friendship, II April 1945. . 167 The Polish-Yugoslav Treaty of Friendship, 18 March 1946 . 168 The Hungaro-Yugoslav Treaty of Friendship, 8 December 1947 168 Bulgar-Yugoslav Treaties . . . . . . . . . . . . 169 The Czechoslovak-Yugoslavian Treaty of 9 May 1946. . . . 170 Albano-Yugoslav Treaty of Friendship, 9 July 1946. . . . . 170 The Anglo-Egyptian Treaty of Friendship and Alliance, 12 August

1936 . . . . . . . . . . . . . . . . . . . . . 171 The Anglo-Egyptian Conventions of 1899 on the Sudan. 171 The Italian Peace Treaty, 10 February 1947. . 175 The Sino-Soviet Treaty of 24 August 1945. . . 178 The Soviet-British Treaty of Alliance of 1942 and the Franco-

Soviet Treaty of Alliance of 1944. . . . . . 179 The Anglo-Egyptian Treaty on the Suez Canal Base, 1954. . . . 183 The Quadripartite Agreements of 1944 and 1945 on Berlin. . . . 184 Agreement Relative to the Withdrawal of Offensive Weapons from

Cuba, October 1962. . . . . . . . 188 Treaty on a Partial Test Ban, July 1963 191 Conclusion. . . . . . . 192

VII. DISCUSSIONS RELATIVE TO UNILATERAL DENUNCIATION IN INTERNATIONAL ORGANISATIONS AND CONFERENCES

Introduction. . . . . . . . . . . . . . 194

194 194 197 199 204

The Danube Convention and Conference .. The Palestine Armistice Agreements, 1949 . The Korean Armistice Agreement of 1953 Conclusion. .

VIII. CONCLUSIONS

Selected Bibliography Index

206

216

222

TABLE OF CASES

The sources of the following case materials are fully listed in foot­notes at the appropriate places.

The Anglo-Iranian Oil Company Case. . . . . . . . . . The Arbitral Award Made by the King of Spain. . . . . . Attorney-General of the Court of Appeal of Brussels V. Aron . The Blonde & Other Ships Case. Charlton V. Kelly. . . . . . . . . . . . . The Chinese Exclusion Case . . . . . . . . The Diversion of Water from the Meuse Case . Faulkner V. Mexico ... Fort Payne Co. Webster. The Free Zones Case Freeth V. Burr .. Fossume V. Requa . Grisbadarne . . . .

36 82

53,57 50, 56 48, 56 45, 56 38, 55

82 69, 70

36, 89 66 69 82

Hooper V. The United States. Honck V. Muller ..... Italy (Gentini) V. Venezuela In re Lepeschkin

44, 56, r07, r08 66

The Lotus Case. . . . . . The Maria ....... . Mersey Steel & Iron Co. Maylor. Millar's Karry Co. Weddel . . . Naulilaa. . . . . . . . . . . National Contracting Co. V. Ulconite Co. Nolan V. Whitney ..... . Paquet a Havana ...... . The Phosphates of Morroco case

82 52,57

5 5

66 67 85 70

69 5

36

XII TABLE OF CASES

Poussard V. Spiers & Pond. 66 Pust V. Dowie . . . . . . 67 Sarropoulos V. Bulgaria . . 82 Security for Costs (Switzerland) Case 54, 56 The Tacna-Arica Case. . 37,56 Temple of Preach Vihear . 82 Terlinden V. Ames 47, 56 In re Thomas. . . 42, 56 The Trangmar Case 59, 60 In re Totarko. . . 53,57 U.S.-Venezuelan Arbitration M.C.C. (I903): Turnbull/Manoa Co.

Ltd/Orinoco . . . . . . . . . . . Wallis Son & Wells V. Pratt & Haynes . Ware V. Hylton . . . . . . . . . . . West Rand Central Gold Mining Co. V. R. The Wimbledon Case . . . . . . . . .

59 66

40 ,56 5, lOS

89

AJIL Annual Digest

BYIL ICJ ICLQ Keesing L. Q. Rev. Malloy

PCIJ

RIIF Doc.

ABBREVIATIONS

American Journal of International Law Annual Digest (and Reports) of Public International Law Cases British Yearbook of International Law Publications of the Iternational Court of Justice International and Comparative Law Quarterly Keesing's Contemporary Archives Law Quarterly Review The four volumes of "Treaties, Conventions, Inter­national Acts, Protocols, and Agreements between the United States and Other Powers." Publications of the Permanent Court of International Justice Documents on International Affairs. Issued under the auspices of the Royal Institute of International Affairs London.

RIIF Survey Survey of International Affairs. Issued under the auspices of the Royal Institute of International Affairs, London.

TIAS United States Treaties and Other International Acts Series.

FOREWORD

In a world still divided into sovereign states and possessed of no institutions for comprehensive centralised regulation of transnational interests and activities, treaties are steadily increasing in number and importance as an imperfect but indispensable substitute for such regulation. Through multilateral conventions, the world community seeks to establish widely accepted standards of state conduct in the general interest; and many international agreements are concluded for the purpose of regulating the relations between two or more states by creating contractual bonds of reciprocal nature between them.

Despite the non-existence of anything resembling a world govern­ment with effective power to enforce international law, most treaties are observed with a high degree of regularity. States normally carry out their treaty commitments because it is in their interest to do so. A treaty is made because two or more states have a common or mutual interest in establishing a new relationship or modifying an existing one. The natural penalty for the violation of a treaty establishing or regulating a mutually desired relationship is the disruption or im­pairment of the latter. When national policies change, clauses per­mitting termination or withdrawal by a unilaterally given notice often serve as safety valves which prevent pressures for treaty violations from building up. But there remains a residue of situations in which a state fails to live up to its obligations under a treaty still in force. In such situations, what is the other party's remedy?

The old notion that "war" is the ultimate sanction of observance of treaties, though still occasionally encountered in legal literature, is obsolete. It was never really applicable to treaties of non-political character or effective against stronger powers, and it is inconsistent with the modern abhorrence of war and with the legal restrictions on the use of force which express the consensus of mankind in the nuclear

XVI FOREWORD

age. But force as a sanction applied by individual states has been outlawed before a centralised system of enforcement of international law by world community organs has been created. As a result, states must place greater reliance than ever on non-violent self-help as a means of protecting their legal rights. Among the forms of such self-help is unilateral denunciation of a treaty in response to its breach by the other party. The possibility of such denunciation not only operates as a deterrent against treaty violations, but often permits the innocent party to protect itself against a continuing inequality of burdens and benefits which might otherwise result, contrary to its legitimate expectations, from the disregard of the treaty by the other party. It may thus serve as an instrument of justice.

Yet the dangers inherent in the unilateral denunciation of treaties by states as a measure of self-help are evident. The stability of treaty relationships may be seriously impaired if breaches are alleged merely for the purpose of getting rid of treaty obligations which have become undesirable for other reasons. Fear of such misuse of the remedy of unilateral denunciation led some jurists in the interwar period to doubt that a treaty violation gave the innocent party a right to such denunciation, or to hedge the exercise of this right by special re­quirements. The Harvard Research in International Law, for example, optimistically sought to do away with the self-help aspect of denunci­ation by providing that only "a competent international tribunal or authority" could declare that a treaty had ceased to be binding because of a prior violation by another party. Even the Legal Adviser of the u.s. Department of State was inclined to doubt, in I935, that the remedy of unilateral denunciation had sufficient support in the practice of states. Other jurists have pointed out that an innocent party can often adequately protect its interests by suspending performance of its obligations under the violated treaty in whole or in part rather than by definitively terminating them. The growing number of multilateral treaties, moreover, has served to emphasize the possible injustice of denunciation or suspension vis-a.-vis all the other parties as a remedy for a breach committed by one of them.

Practice since W orld War I I has afforded new instances of resort to unilateral denunciation as a remedy for non-observance of treaties and has served largely to dispel doubts that a right of such denunciation, at least with respect to bilateral treaties, exists in international law. Both the United Nations International Law Commission and the American Law Institute, in their current efforts to codify or restate

FOREWORD XVII

the law of treaties, recognize this right. Nevertheless, until now, no comprehensive monographic study of many problems related to the existence of this right has appeared in print.

Doctor Sinha's valuable work supplies this deficiency in the litera­ture of international law. With scholarly thoroughness and objectivity, the author reviews records of the practice of states and of international organizations, as well as judicial decisions, opinions of jurists, and private law analogies, which have a bearing on unilateral denunciation as a remedy for non-observance of treaties; and he gives careful con­sideration to the scope and content of the right of unilateral denun­ciation and to the limitations upon it. His approach is soberly conserva­tive, laying stress on what the law is. Some readers may take issue with certain of his conclusions; some may feel that he is too reluctant to engage in bold speculation de lege ferenda; but none will deny the great value of the materials and the analysis presented by him.

OLIVER J. LISSITZYN

Professor of Public Law Columbia University

PREFACE

This book grew out of a paper prepared by the author for a Colloquium in International Legal Problems held at Columbia University in I958-59.

The basic objective of this study is to ascertain whether or not international law contains a principle which entitles an innocent party to a treaty unilaterally to terminate its obligations on the ground of prior breaches of obligations by other party. The methods or procedures employed in this study are basically to examine the opinions of jurists, the expressions of courts, general principles of law accepted in foro domestico of civilised states and the practice of states with regard to the subject-matter of this work.

The broad outlines of this problem are spelled out in Chapter I. Chapters II and III seek to demonstrate the existence of a sub­

stantial agreement among the jurists and judges in regard to the value and validity of the doctrine of unilateral denunciation.

In Chapter IV representative municipal legal systems of civilised states have been scrutinised so as to indicate that the concept of uni­lateral denunciation is essentially in accord with the general manifes­tations of legal consensus or juridical conscience of humanity.

Chapter V turns to the analysis of certain questions related to the subject-matter of this study, such as pacta sunt servanda, unanimity rule, extinctive prescription, severability of provisions, law-making treaty, substantial breach, void or voidable, and the rule of law.

In Chapter VI state papers have appropriately been cited and analysed so as to demonstrate that states have traditionally invoked or championed the doctrine of unilateral denunciation as a rule of international law.

Chapter VII examines arguments, directly or indirectly touching upon the subject-matter of this work, advanced at the meetings of international conferences and organisations.

xx PREFACE

Chapter VIII presents the conclusions of this study. It has been stressed in this chapter that all the evidence leads to the conclusion that the right of unilateral denunciation, under certain circumstances, is recognised under international law.

The author has not included in this work those instances where states parties to violated treaties felt justified and contemplated to invoke the right of unilateral denunciation but in actuality found it more convenient to denounce their obligations in accordance with the termination clauses contained in the treaties or not to denounce them at all. Nor does this study embrace unpublished materials directly or indirectly concerning the theme of this work. Selected bibliographical references end index have been appended at the end of this work.

I wish to express my profound gratitude to Professor Oliver J. Lissitzyn for the constant interest and advice which made the ac­complishment of this endeavour possible. I am also deeply indebted to Professor W. Friedmann for his kindness to give generously of his time to read this work and make helpful comments.

September I, 1964. New York.

BHEK PAT! SINHA