Volume I Part 72 (1/2)

[Sidenote: Grounds of Voidance.]

-- 540. A treaty, although it has neither expired nor been dissolved, may nevertheless lose its binding force by becoming void.[906] 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.

[Footnote 906: But such voidance must not be confounded with the voidance of a treaty from its very beginning; see above, -- 501.]

[Sidenote: Extinction of one of the two Contracting Parties.]

-- 541. All treaties concluded between two States become void through the extinction of one of the contracting parties, provided they do not devolve upon such State as succeeds to the extinct State. 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.

[Sidenote: Impossibility of Execution.]

-- 542. All treaties whose execution becomes impossible subsequent to their conclusion are thus 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.[907] It must, however, be added that the impossibility of execution may be temporary only, and that then the treaty is not void but merely suspended.

[Footnote 907: 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.]

[Sidenote: Realisation of Purpose of Treaty other than by Fulfilment.]

-- 543. All treaties whose purpose is realised otherwise than by fulfilment become void. For example, a treaty concluded by two States for the 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 matter.

[Sidenote: Extinction of such Object as was concerned in a Treaty.]

-- 544. All treaties whose obligations concern a 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.

XI

CANCELLATION OF TREATIES

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

[Sidenote: Grounds of Cancellation.]

-- 545. A treaty, although it has neither expired, nor been dissolved, nor become void, may nevertheless lose its binding force by cancellation. The causes of cancellation are four--namely, inconsistency with International Law created subsequent to the conclusion of the treaty, violation by one of the contracting parties, subsequent change of status of one of them, and war.

[Sidenote: Inconsistency with subsequent International Law.]

-- 546. Just as treaties have no binding force when concluded with reference to an illegal object, so they lose their binding force when through a progressive development of International Law they 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 any of these Powers based on privateering as a recognised inst.i.tution of International Law were _ipso facto_ cancelled.[908] But it must be emphasised that subsequent Munic.i.p.al Law can certainly have no such influence upon existing treaties. On occasions, indeed, subsequent Munic.i.p.al 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.[909]

[Footnote 908: This must be maintained in spite of the fact that Protocol No. 24--see Martens, N.R.G. XV. (1857), pp. 768-769--contains the following: ”Sur une observation faite par M.M. les Plenipotentiaires de la Russie, le Congres reconnait que la presente resolution, ne pouvant avoir d'effet retroactif, ne saurait invalider les Conventions anterieures.” This expression of opinion can only mean that previous treaties with such States as were not and would not become parties to the Declaration of Paris are not _ipso facto_ cancelled by the Declaration.]

[Footnote 909: That Munic.i.p.al Courts must apply the subsequent Munic.i.p.al Law although it conflicts with previous treaty obligations, there is no doubt, as has been pointed out above, -- 21. See The Cherokee Tobacco, 11 Wall 616; Whitney _v._ Robertson, 124 United States 190; Botiller _v._ Dominguez, 130 United States 238. See also Moore, V. -- 774.]

[Sidenote: Violation by one of the Contracting Parties.]

-- 547. Violation of a treaty by one of the contracting States does not _ipso facto_ cancel such treaty, but it is in the discretion of the other party to cancel it on the ground of violation. There is no unanimity among writers on International Law in regard to this point, in so far as a minority makes a distinction between essential and non-essential stipulations of the treaty, and maintains that violation of essential stipulations only creates a right for the other party to cancel the treaty. But the majority of writers rightly oppose this distinction, maintaining that it is not always possible to distinguish essential from non-essential stipulations, that the binding force of a treaty protects non-essential stipulations as well as essential ones, and that it is for the faithful party to consider for itself whether violation of a treaty, even in its least essential parts, justifies the cancelling of the treaty. The case, however, is different when a treaty expressly stipulates that it should not be considered broken by violation of merely one or another part of it. And it must be emphasised that the right to cancel the treaty on the ground of its violation must be exercised within a reasonable time after the violation has become known. If the Power possessing such right does not exercise it in due time, it must be taken for granted that such right has been waived. A mere protest, such as the protest of England in 1886 when Russia withdrew from article 59 of the Treaty of Berlin of 1878, which stipulated the freedom of the port of Batoum, neither const.i.tutes a cancellation nor reserves the right of cancellation.

[Sidenote: Subsequent Change of Status of one of the Contracting Parties.]

-- 548. A cause which _ipso facto_ cancels treaties is such subsequent change of status of one of the contracting States as transforms it into a dependency of another State. As everything depends upon the merits of each case, no general rule can be laid down as regards the question when such change of status must be considered to have taken place, or, further, as regards the other question as to the kind of treaties cancelled by such change.[910] Thus, for example, when a State becomes a member of a Federal State, it is obvious that all its treaties of alliance are _ipso facto_ cancelled, for in a Federal State the power of making war rests with the Federal State, and not with the several members. And the same is valid as regards a hitherto full-Sovereign State which comes under the suzerainty of another State. On the other hand, a good many treaties retain their binding force in spite of such a change in the status of a State, all such treaties, namely, as concern matters in regard to which the State has not lost its sovereignty through the change. For instance, if the const.i.tution of a Federal State stipulates that the matter of extradition remains fully in the competence of the member-States, all treaties of extradition of members concluded with third States previous to their becoming members of the Federal State retain their binding force.

[Footnote 910: See Moore, V. -- 773, and above, -- 82, p. 128, note 1, and -- 521.]

[Sidenote: War.]

-- 549. How far war is a general ground of cancellation of treaties is not quite settled. Details on this point will be given below, vol. II. -- 99.