Unequal treaties in international law

Table of contents :
Forepage
Title
Contents
Abbreviations
Intro
Part 1
1.1 Treaties in general
1.2 Conclusion of treaties
1.3 Invalidity
2.1 Unequal treaties
2.2 Terminology
2.3 Private law analogy
2.4 Rebus sic stantibus
Summary
Part 2
3 Peace
3.2 Independent states
3.3 Dependent states
4.1 War
4.2 Peace treaties
Summary
Conclusions
Bibliography
Cases
Treaties
Indices

Citation preview

Nozari Jur. Lie. (Stockholm) Dr. Lett. (Paris)

UNEQUAL TREATIES 1n

INTERNATIONAL LAW

Akademisk avhandling som med tillstand av juridiska f akulteten vid Stockholms Universitet for vinnande av juridisk doktorsgrad framstalles till offentlig granskning pa larosal M, Norrtullsgatan 2, onsdagen den 8 december I 971 kl. 10 fm.

TO SUZANNE

Fariborz Nozari UNEQUAL TREATIES in INTERNATIONAL LAW Copyright reserved to the author

Printed in Sweden S-Byran Sundt & Co Stockholm, 1971

5

Preface The purpose of this work is to make a survey on unequal treaties in international law. The subject, although known in the law of nations since centuries ago, did not invite much attention, either in doctrine or in practice, prior to the foundation of the League of Nations, and even since then it has been treated only occasionally and too casually. In an attempt to fulfil the undertaken task, efforts are made to suggest some general principles as to the meaning, dominion and the legal effect of unequal treaties. In order to be able to establish these principles, and in the meantime to avoid misunderstanding as to the position respecting all cases of unequal treaties; only a few general examples and some cases which have been invoked in practice of States are presented. Whereas it is intended to make this work accessible to tyros and laymen; for the purpose of giving some general information on the law of treaties, an outline is presented in Chapter one. However, to avoid the unnecessary increase of the volume; only those topics of the law of treaties, which in one way or other bear some connexion with the subject in question, are dealt with. The author is fully aware of the fact that the subject is far from being treated in a comprehensive manner. Therefore, he entertains no illusion as to his own success in meeting the difficulties inherent in his undertaking. Nevertheless, the author considers this work as a contribution to the development and understanding of the doctrine of unequal treaties in international law. He will feel amply repaid, and considers it specially gratifying if the incompleteness of his attempt proves useful in stimulating further research in this subject. This monograph is written as a doctoral dissertation under the direction of Professor Hilding Eek of the University of Stockholm. I take this occasion to express my deepest thanks and gratitudes to Professor Eek for his advice and criticism,

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and for arousing interest in the subject and encouraging me with the generous enthusiasm of a great teacher. I am deeply indebted to Dr. Hans Blix, the Legal Advisor of the Swedish Ministry of Foreign Affairs, for reading the manuscript, advancing critical views and providing me with advice. I am also very much indebted to Dr. Jan Ramberg, Professor of Ci':'il Law in the University of Stockholm, for his critical views and advice, particularly with respect to those parts which deal with terminology and private law analogy. Thanks are due to the librarian of the Stockholm Law School, Miss Gerd Bodman and her assistant Miss Madeleine Andersson, and to Mrs. Eva Eneblad, the librarian of the Swedish Parliament Library, without whose aid this work could not have been accomplished. A generous share of credit for any merit which the work may have, belongs to my wife Suzanne, whose invaluable assistance in the assembling of materials and the preparation of manuscript has made her an indispensable co-partner in the enterprise and companion in research. F.N. Stockholm, October 1971

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TABLE OF CONTENTS page 11 15

Abbreviations Introduction

PART ONE The Legal Environment CHAPTER ONE Treaties in General Section I. General Principles 1. Definition of the Term 2. Form of Treaties 3. Mutual Consent 4. Binding Force of Treaties Section II. Conclusion of Treaties 1. Treaty-making Capacity 2. Constitutionality of Treaties 3. Full Powers, Negotiation and Signature 4. Ratification 5. Acceptance and Approval 6. Accession 7. Reservations 8. Ent~ry into Force 9. Registration and Publication of Treaties Section III. Grounds for Invalidity of Treaties 1. Lack of Competence to Conclude Treaties in Violation of Internal Law 2. Error 3. Fraud 4. Duress or Coercion 5. Jus cogens 6. Incompatibility with Earlier Treaties

22 22 22 27 31 31 36 36 38 40 43 48 48 51 56 57 61

61 63 63 64 68 75

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page CHAPTER TWO Unequal Treaties Section I. General Approach 1. Equality of States in International Law I. Origin and Concept; II. Opinions of Publicists in 19th and 20th Centuries; III. Practice of States Prior to the Foundation of the League of Nations; IV. Equality of States in the League of Nations; V. Equality of States in the United Nations; VI. Sovereign Equality and the Special Committee of the United Nations. Conclusion 2. The rule pacta sunt servanda Section II. Terminology 1. Origin of the term "unequal treaty" 2. Definition of the "term" 3. Application of the "term" in practice 4. The term "unequal treaty" and the work of the International Law Commission Conclusion Section III. Private Law Analogy 1. In general 2. Private Law Contracts and International Treaties Conclusion Section IV. Clausula rebus sic stantibus and Unequal Treaties l. Clausula rebus sic stantibus A. Doctrine; B. Practice of States; C. Judicial Practice. D. Clausula in Harvard Draft Convention and in the Convention on the Law of Treaties 2. Invocation of clausula for Termination of Unequal Treaties A. Opinions of Writers; B. Practice of States; C. Judicial Practice; D. Extraterritoriality Conclusion Summary of Part One

78 78 80

96 102 107 107 108 112 115 11 7 122 122 126 130 134 134

152

163 166

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PART TWO

Different Forms of Unequal Treaties page CHAPTER THREE Unequal Treaties During Peace Section I. Some General Aspects 1. Concept of "State" 2. Sovereignty (independence) 3. Treaty-making Capacity Section II. Unequal Treaties with Independent States A. Unequal Treaties with China B. Unequal Treaties with Latin American States C. Unequal Treaties before the United Nations Sphere of Influence Satellization Conclusion Section III. Unequal Treaties with Dependent States 1. Protected and Vassal States 2. Mandates Conclusion

CHAPTER FOUR Unequal Treaties in Connexion with War Section I. Unequal Treaties During War 1. During Occupation 2. Other Cases Conclusion Section II. Peace Treaties 1. Equal Peace Treaties 2. Unequal Peace Treaties Conclusion Summary of Part Two General Conclusion

174 174 174 181 191 200 201 211 223 231 240 242 24 7 24 7 262 271

274 274 275 277 278 280

283 283 286

289 295

10 page Bibliography Appendix Table of Cases Table of Treaties Index, Authors Index, Subject

304 319 321 322 326 328

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Abbreviations A.J.

American Journal of International Law.

Anzilotti

Cours de droit international, I.

Blix

Treaty-making Power.

Brierly

The Law of Nations.

Brownlie

Principles of Public International Law.

B.Y.

British Yearbook of International Law.

Cavaglieri

Regles generales du droit de la paix, R.C. (1929,I).

Convention on the Law Convention adopted by the U.N. Conof Treaties ference of plenipotentiaries at Vienna in 1969, the text of which is published in A.J. (1969), 875-903. Delbez

Les principes generaux du droit international public.

Detter

Essays on the Law of Treaties.

Dickinson

The Equality of States in International Law.

Eek

Folkratten.

Fauchille

Traite de droit international public.

Grotius

De jure belli ac pacis.

Hall

A Treaties in International Law.

Harvard Draft

Draft Convention on the Law of Treaties prepared by Harvard Law School Research in International Law and published in A.J. (1935, Suppl.), 6571204.

12 Havana Convention

Convention on the Law of Treaties adopted by the American States in 1928, the text of which is published in A.J. (1935, Suppl.), 1205-207.

Holloway

Trends in Treaty Law.

Hyde

International Law, chiefly as interpreted and applied by the United States.

l.C.J.

International Court of Justice.

l.C.L.Q.

International Quarterly.

l.L. C.

International Law Commission, Yearbook.

Kelsen

Principles of International Law.

L.N. T.S.

League of Nations Treaty Series.

Lauterpacht

Private Law Sources and Analogies of International Law.

De Lauter

Le droit international public positif.

Mac Murray

Treaties and Agreements with and concerning China, 18 94-1919.

Mc Nair

The Law of Treaties.

O'Connell

International Law.

O.J.L.N.

Official Journal of the League of Nations.

Oppenheim

Oppenheim's International Law.

P.C.I.J.

Permanent Court of International Justice.

Pradier-Fodere

Cours de droit diplomatique.

R.C.

Recueil des Cours de l' Academie de Droit International de La Haye.

and

Comparative

Law

13

R.D.l, or R.D.IL.C.

Revue de Droit International et de Legislation Comparee.

R. G., or R. G.D.IP.

Revue Generale de Droit International Public.

Rivier

Principes du droit des gens.

Rousseau, Approfondi

Droit international public approfondi.

Rousseau, Principes

Principes generaux du droit international public, I.

Satow

A guide to diplomatic practice.

Sorensen (Sorensen)

Manual of Public International Law.

U.N Doc.

Official Records of the United Nations.

U.N T.S.

United Nations Treaty Series.

De Visscher

De la conclusion des traites internationaux.

Westlake

International Law, I.

..

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INTRODUCTION

I. The concept of "unequal treaty" has originally been introduced into the modern system of international law by Grotius. Although after Grotius a few writers have briefly mentioned the "concept" in their textbooks, the subject did not, as a whole, invite much attention prior to the foundation of the League of Nations. This occasional and casual treatment of the subject, insofar as the present writer has been able to ascertain, is due first of all to the manner in which Grotius, followed by other writers, defined the term "unequal treaty"; and secondly, and maybe most important, to the fact that application of force until recently has been a legitimate means in international relations. Grotius says that treaties on unequal terms are promised either by the party of higher rank or by the party of lower rank. A treaty is unequal on the part of the superior if he promises more than what he receives, and a treaty is unequal on the part of the inferior when it is imposed by command. Cl) Pufendorf and Vattel followed almost the same line of thought. Vattel, however, made a further distinction between "unequal treaty" and "unequal alliance". Vattel says that unequal treaties are those in which the parties do not promise the same thing or equivalent, while unequal alliances are those which place the parties in different dignitary positions, providing superiority for one party and inferiority for the other. He adds that unequal treaties between two equal parties do not entail unequal alliance, while unequal treaties on the part of the stronger always entail an unequal alliance on the part of the weaker party. C2 ) Writing in the middle of the nineteenth century, Hautefeuille divided treaties into two classes, namely, equal treaties and unequal treaties. He says that equal treaties are those which are concluded between free and independent nations by virtue of their (1) Grotius, Book II, 396. (2) Vattel, Droit des gens, Liv. II, Chap. 12, Sec. 175

. 16 own free will and without any constraint. And unequal treaties are those which are imposed by one of the contracting parties upon the other. Hautefeuille disagreed that a treaty in which one of the parties promises more than what he receives could ipso facto be considered as an unequal treaty. For he says that conventions between free and independent nations can contain "l'abandon par l'une des parties au profit de l'autre, d'une portion de ses droits natur~ls avec ou sans compensation." He adds, however, that a treaty, either equal or unequal, which endangers the existence of a nation as an independent entity, does not need to be observed. ( 1 ) II. How~ver, these views remained merely as theoretical arguments, for they could not have any practical value in an unorganized international community in which equity and justice had no hearing and in which the only means of achievement was the force. The provision of Article 19 of the Covenant of the League of Nations opened a new era in the recognition and development of the norm "unequal treaty" in international law. This article provided: "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". However, in 1921, in the Assembly of the League, the Chilean Delegation objected to the request of the Bolivian Government concerning the application of Article 19 to the Treaty of 1904 between Chile and Bolivia; a treaty which was said had been imposed upon Bolivia, and which on account of the failure of Chile to carry out its provisions had left Bolivia without access to the sea. The Chilean representative said that his Government's opposition was on the basis of the absolute and radical incompetence of the League to revise treaties, and particularly peace treaties, and that the power of the Assembly under Article 19 was merely advisory. C2 ) Consequently the Assembly decided to appoint a special committee

(1) Hautefeuille, Des droits et des devoirs des Nations Neutres ... I, 9-10 (2) League of Nations, Second Assembly, Plenary Meetings, 45.

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of jurists to give their joint opinion on the power of the Assembly under Article 19. (l) In its joint opinion, the Committee of Jurists, rejecting the Bolivian request, observed that the advice of the Assembly "can be given in cases where treaties have become inapplicable, that is to say, when the state of affairs existing at the moment of their conclusion has subsequently undergone, either materially or morally, such radical changes that their application has ceased to be reasonably possible, or in cases of the existence of international conditions whose continuance might endanger the peace of the world. The Assembly would have to ascertain, if a case arose, wether one of these conditions did in point of fact exist."( 2 ) Although Article 19 was practically never applied,(3) in our opinion; in contradiction to the interpretation given to it by the Committee of Jurists, the article was not intended to provide for the application of clausula rebus sic stantibus.