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Revision Clauses in Treaties since the World War1

Published online by Cambridge University Press:  02 September 2013

Robert R. Wilson
Robert R. Wilson
Affiliation:
Duke University
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Extract

When the Constitution of the United States was before the states for adoption, James Iredell of North Carolina made the following observation: “The misfortune attending most constitutions which have been deliberately formed has been that those who formed them thought their wisdom equal to all possible contingencies, and that there could be no error in what they did. The gentlemen who framed this Constitution thought with much more diffidence of their capacities; and, undoubtedly, without a provision for amendment it would have been more justly liable to objection, and the character of its framers would have appeared much less meritorious. This, indeed, is one of the greatest beauties of the system, and should strongly recommend it to every candid mind.”

Type
International Affairs
Information
American Political Science Review , Volume 28 , Issue 5 , October 1934 , pp. 901 - 909
Copyright
Copyright © American Political Science Association 1934

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References

2 Elliot's, Debates (1836 ed.), IV, 176Google Scholar; quoted after Orfield in 28 Michigan Law Review, 555n.

3 Cf. Kunz, in 27 American Journal of International Law, 648n: “… war as a dynamic means corresponds in international affairs exactly to revolution in domestic affairs.”

4 See Jenks, , “The Revision of International Labor Conventions,” British Yr. Booh of Int. Law, XIV (1933), 43–64, at p. 44Google Scholar.

5 Cf. Lauterpacht, , in Economica, No. 37 (August, 1932), pp. 301–320Google Scholar.

6 Cf. Brierly, , “The Function of Law in International Relations,” in Problems of Peace, Third Series (1929), pp. 297–298Google Scholar: “… side by side with the development of legal methods of settling disputes, we need a system for the peaceful introduction of changes into the international order, and … without the second of those two reforms an uncompromising insistence on the first would be an actual danger to peace.”

7 The treaties considered include those made by any Great Power with any other state, as well as those between these Powers.

8 It would exclude, for example, Article 8 of the Locarno Treaty of Mutual Guaranty, with which six other Locarno agreements are coterminous. By the terms of the article, the treaty “shall remain in force until the Council, acting on a request of one or other of the High Contracting Parties notified to the other signatory Powers three months in advance, and voting at least by a two-thirds majority, decides that the League of Nations ensures sufficient protection to the High Contracting Parties” (54 L.N.T.S. 295). (References to the League of Nations Treaty Series in the following pages are to English texts in this Series.)

9 Illustrated in Article 29, par. 3, of the 1925 treaty of friendship, commerce, and consular rights with Estonia [44 Stat. (pt. 3) 2379], in a Senate reservation to the 1923 commercial treaty with Germany [44 Stat. (pt. 3) 2132], and in various executive agreements, such as that of 1929 with Canada in regard to civil aircraft (U. S. Exec. Agreement Series No. 2, par. 9). For similar clauses in treaties between other states, see 50 L.N.T.S. 310, 311 (Great Britain—The Netherlands); 51 L.N.T.S. 157, 52 ibid., 311, 331 (Germany with Sweden and Italy respectively). In the American treaties for prevention of smuggling of intoxicating liquors, there is provision whereby an adverse judicial decision in one state might cause the treaty to lapse. See Art. VI of the treaty with France [45 Stat. (pt. 2) 2403].

10 See recent pronouncements by the World Court in regard to the unity of whole instruments, P.C.I.J., Series A/B, No. 49, pp. 312, 317.

11 Illustrated in certain parcel post arrangements, such as that between Germany and Great Britain, July 27, 1929 (100 L.N.T.S. 440, 450).

12 As in arrangements relating to Tangier (87 L.N.T.S. 235) or Memel (29 L.N.T.S. 87, 107).

13 Jenks, loc. cit., 46n.

14 9 L.N.T.S. 401; 37 ibid., 176, 178; 34 ibid., 32, 34. See also the Anglo-Japanese Declaration of July 8, 1920, 1 ibid., 24.

15 Illustrated in a British-Dutch agreement of 1926, 57 L.N.T.S. 42, 48.

16 See 29 L.N.T.S. 378, 386 (Great Britain-Czechoslovakia); 114 ibid., 191, 329 (France-Switzerland).

17 See, for example, 101 L.N.T.S. 467, 475.

18 Illustrated in the Austro-German Treaty Concerning Air Navigation, Additional Protocol, par. 3 (52 L.N.T.S. 126, 132). In this, as in many other clauses within this classification, changes might be agreed upon by national administrative agencies.

19 On the use of a clause concerning force majeure, or frustration, as a solution less dangerous than acceptance of the rebus sic stantibus doctrine, see Bullington, J. P., “International Treaties and the Clause ‘Rebus Sic Stantibus’,” 76 U. of Pa. Law Review (Dec., 1927), 153–177Google Scholar. For statements concerning the clause rebus sic stantibus as a rule of international law, see the argument of Paul-Boncour before the Permanent Court of International Justice in the Free Zones Case, P.C.I.J., Series C, No. 17, I, pp. 82, 88, 89, 91, 97, 98.

20 See 62 L.N.T.S. 135, 137; 63 ibid., 139, 147; 99 ibid., 320, 321; 109 ibid., 315, 317, 325.

21 62 L.N.T.S. 135, 137; 63 ibid., 139, 147; 90 ibid., 209, 211; 93 ibid., 127, 128; 93 ibid., 261, 263; 99 ibid., 320, 321; 109 ibid., 315, 325.

22 109 L.N.T.S. 411, 419.

23 110 L.N.T.S. 334, 336.

24 Twenty-three such provisions have been listed.

25 Illustrated in 44 L.N.T.S. 183, 189. In a war-debt agreement which France made in 1930 with Yugoslavia, she undertook to give that country the benefit of any advantages which might be secured from her (France's) creditors, and to revise the agreement accordingly (104 L.N.T.S. 173, 175).

26 Illustrated in 21 L.N.T.S. 413, 425 (Germany-Poland).

27 Illustrated in an Austro-French commercial agreement, 88 L.N.T.S. 23, 79.

28 Germany-Poland: Treaty for Settlement of Frontier Questions, signed in 1926 (64 L.N.T.S. 158, 159).

29 Illustrated in the United States-Honduras Treaty of Dec. 7, 1927, 45 Stat. (pt. 2) 2618, Art. XXIX, par. 2.

30 12 L.N.T.S. 63, 73 (Germany-Poland and Danzig).

31 Illustrated in 5 L.N.T.S. 208, 211 (Germany-Saar Basin Territory).

32 Illustrated in 16 L.N.T.S. 337, 345 (Finland-Russia).

33 As in the commercial agreement of 1929 between France and Estonia (89 L.N.T.S. 383, 399, 401).

34 See, for example, the Franco-German commercial agreement of Aug. 17, 1927 (76 L.N.T.S. 345, 492).

35 Illustrated in 10 L.N.T.S. 187, 243; 19 ibid., 39, 61; 32 ibid., 94.

36 French-Polish Agreement Regarding the Régime of the Mineral Oil Industries, 43 L.N.T.S. 417, 421.

37 Germany's treaty of friendship with Persia, Feb. 17, 1929 (111 L.N.T.S. 29, 30). The article to be reexamined is an arbitration article.

38 10 L.N.T.S. 187, 251.

39 94 L.N.T.S. 441, 445.

40 The Termination of Multipartite Treaties (1933), 225–237Google Scholar.

41 Illustrated in the 1928 Agreement Relative to Exportation of Hides and Skins, 95 L.N.T.S. 358, 363, 364 (Art. 6).

42 Parties to the Convention for Suppression of Contraband Traffic in Alcoholic Liquors are committed by Article 12 (42 L.N.T.S. 75, 81) to examine such proposals in a “friendly spirit.” Time limits are inserted in most of the engagements grouped with this one.

43 74 L.N.T.S. 291, 311.

44 Illustrated in Article 22 of the 1923 Convention Relating to the Development of Hydraulic Power Affecting More than One State, 36 L.N.T.S. 77, 87.

45 As in the Convention for the Unification of Certain Rules Relating to Bills of Lading (1924), Art. 16 (120 L.N.T.S. 157, 173).

46 See the 1924 Convention Concerning Rail Traffic, Art. 60 (77 L.N.T.S. 369, 437).

46a Cf. 86 L.N.T.S. 246, 252.

47 As in the Convention Relating to Simplification of Customs Formalities, 1923 (30 L.N.T.S. 373, 403).

48 See, for example, 80 L.N.T.S. 295, 299.

49 As authorized in the International Radiotelegraph Convention, 1927, 45 Stat. (pt. 2) 2760, Art. 13, par. 2.

50 Perhaps best illustrated in the 1919 Convention Relating to Air Navigation, 11 L.N.T.S. 174, 196 (Chapter VIII, Art. 34).

51 46 Stat. (pt. 2) 2858 (Art. 21 of the Treaty).

52 See, for example, the 1928 revision of the Berne Convention for the Protection of Literary and Artistic Works, 123 L.N.T.8. 235, 259.

53 103 L.N.T.S. 79, 123.

54 Illustrated in the 1929 Postal Cheques Agreement, 103 L.N.T.S. 327, 337.

55 Illustrated in the Agreement Relating to the Exportation of Hides and Skins, 1928 (95 L.N.T.S. 358, 365).

56 See the Convention Concerning Traffic of Goods by Rail, 1924 (77 L.N.T.S. 369, 437, Article 60).

57 Kunz, loc. cit., p. 641. Cf. Yu-hao, Tseng, The Termination of Unequal Treaties in International Law (1931)Google Scholar.

58 See, on this point, de Auer, Paul, “The Revision of Treaties,” Trantactiont of the Grotius Society, XVIII, 155–174 (1933)Google Scholar.

59 Cf. Jenks, loc. cit.