Clausula rebus sic stantibus

In public international law, clausula rebus sic stantibus (Latin for "things thus standing") is the legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda (promises must be kept).^[1]

Because the doctrine poses a risk to the security of treaties as its scope is relatively unconfined, it requires great care as to the conditions in which it may be invoked.^[2][3]

Function in international law

The doctrine is part of customary international law, but is also provided for in the 1969 Vienna Convention on the Law of Treaties under Article 62 (Fundamental Change of Circumstance), although the doctrine is never mentioned by name.^[4] Article 62 provides the only two justifications of the invocation of rebus sic stantibus: first, that the circumstances existing at the time of the conclusion of the treaty were indeed objectively essential to the obligations of treaty (sub-paragraph A) and the instance wherein the change of circumstances has had a radical effect on the obligations of the treaty (sub-paragraph B).

If the parties to a treaty had contemplated for the occurrence of the changed circumstance the doctrine does not apply and the provision remains in effect. Clausula rebus sic stantibus only relates to changed circumstances that were never contemplated by the parties. This principle is clarified in the Fisheries Jurisdiction Case (United Kingdom v. Iceland, 1973).

Although it is clear that a fundamental change of circumstances might justify terminating or modifying a treaty, unilateral denunciation of a treaty is prohibited; a party does not have the right to denounce a treaty unilaterally. (Though this has been debated.^[5])

History

A key figure in the formulation of Clausula rebus sic stantibus was the Italian jurist Scipione Gentili (1563 – 1616), who is generally credited for coining the maxim 'omnis conventio intelligitur rebus sic stantibus'.^[6] The Swiss legal expert Emer de Vattel (1714 – 67) was the next key contributor. Vattel promoted the view that 'every body bound himself for the future only on the stipulation of the presence of the actual conditions'; thus 'with a change of the condition also the relations originating from the situation would undergo a change'.^[7] While during the nineteenth century, civil law came to reject the doctrine of Clausula rebus sic standibus, Vettel's thinking continued to influence international law, not least because it helped reconcile 'the antagonsm between the static nature of the law and the dynamism of international life'.^[8] While individual cases invoking the doctrine were much disputed, the doctrine itself was little questioned. Its provision in the 1969 Vienna Convention on the Law of Treaties established the doctrine firmly (but not without dispute) as 'a norm of international law'.^[9]

Famous cases

• According to Polybius, in 211 BCE, Lyciscus of Acarnania argued that the Lacedaemonians should abandon their treaty with the Aetolian League due to fundamentally changed circumstances. This is perhaps the earliest example of the principle of rebus sic stantibus at work.^[10]
• Elizabeth I of England sought to amend the 1585 Treaty of Nonsuch on the grounds of fundamentally changed circumstances, though her efforts have not been well regarded by modern jurists.^[11]
• In a 'classic' case for the doctrine, Russia attempted to change the terms of the Treaty of Paris (1856) regarding military shipping in the Black Sea. This happened in 1870 – 71 in connection with the Treaty of London (1871), partly (but not only) by invoking Clausula rebus sic stantibus. One important outcome of this was the insistence by other parties that unilateral termination of a treaty was not legal on these grounds.^[12]
• Article 59 of the Treaty of Berlin (1878) made Batumi a free port. In 1886 Russia terminated this arrangement, partly on the grounds of a fundamental change in circumstances.^[13]
• In 1881, the USA attempted to end the Clayton-Bulwer Treaty with the United Kingdom. Various arguments were advanced, including clausula rebus sic stantibus. Although ultimately rebus sic stantibus did not apply in the resolution of the case, it is noteworthy as the first time the USA invoked the principle (to which it had previously been opposed). The USA went on to cite the doctrine again in its arguments for the revision of the Treaty of London (1915).^[14]
• During the 1908 Bosnian crisis, Austria-Hungry renounced its rights and obligations under article 25 of the Treaty of Berlin (1878). Austria-Hungary's arguments have been seen as an invocation of fundamentally changed circumstances. Moreover, despite protests at its actions, Austria-Hungary succeeded, arguably setting a precedent for the use of the doctrine.^[15]
• On 7 February 1923, the Permanent Court of International Justice issued an advisory opinion on a case between France and the United Kingdom regarding the application to British nationals of the French nationality decrees issued by the capitulatory regimes in Tunis and Morocco. France cited a fundamental change of circumstances, and this seems to be the first example of a state invoking rebus sic stantibus before an international court. However, the states settled before the court was required to issue a verdict.^[16]
• In 1924, Norway dissolved its 1907 treaty with Sweden arising from the dissolution of the union between Norway and Sweden, citing changed circumstances including the Russian Revolution, the Treaty of Versailles, and Norway's entry into the League of Nations. Since the 1907 treaty was also time-limited, this case has been seen as a precendent for rebus sic stantibus applying to time-limited as well as indefinite treaties.
• In 1926, China came to terms with Belgium following its efforts to denounce the Sino-Belgian Pact (1865), citing fundamentally changed circumstances.^[17]
• In November 1923 France moved its customs office to Gex, Ain, provoking the 'Freezones Controversy' with Switzerland. The matter was brought before the Permanent Court of International Justice, and France invoked rebus sic stantibus, which Switzerland argued that the doctrine did not apply in respect of territorial rights. In 1932, the court found in favour of Switzerland on the basis of fact, but did not reject the principle that rebus sic stantibus might be a valid basis for Frane's argument.^[18] This was the second time rebus sic stantibus had been argued before an international court.^[19]

External links

• Vienna Convention on the Law of Treaties
• Hersch Lauterpacht, The function of law in the international community. Chapter XIII: The Judicial Application of the Doctrine 'Rebus Sic Stantibus'.

References