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The 1871 London Declaration, Rebus Sic Stantibus and A Primitivist View of the Law of Nations

Published online by Cambridge University Press:  27 February 2017

David J. Bederman
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Extract

International law is the most rarefied of social sciences. Even so, it has scarcely any sense of its intellectual history. International law is finely articulated, oblique in its analysis, and respectful of its position as an arbiter of national competition and conflict. But aside from the casual citation to an ancient arbitration or the consultation of a famous publicist for an essential principle, little credence has been given to its historical development as either a collection of doctrines or a learned study. This article offers both an intellectual history of an international law doctrine and a tour d’horizon of the nature of discourse in our discipline.

Type
Research Article
Information
American Journal of International Law , Volume 82 , Issue 1 , January 1988 , pp. 1 - 40
Copyright
Copyright © American Society of International Law 1988

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References

1 See J. Bentham, An Introduction to the Principles and Morals of Legislation 296 (Burns & Hart eds. 1970) (2d ed. 1823). For an excellent review of Bentham’s contributions, see Jams, Jeremy Bentham and the Fashioning of “International Law,” 78 AJIL 405 (1984)Google Scholar.

2 Letter from Baron Brunnow, reprinted in 72 Gr. Brit. Parl. Papers 13 (1871–72) [hereinafter 72 Parl. Papers].

3 The London Declaration, Jan. 17, 1871, 18 Martens Nouveau Recueil 278 (1873), reprinted in 3 Hertslet, T. Map of Europe by Treaty 1901 (1890)Google Scholar. The declaration was signed by Great Britain, Austria, France, Italy, Russia, Turkey and North Germany (later the German Confederation).

4 6 Verzijl, J. International Law in Historical Perspective 358 (1973)Google Scholar.

5 Id. at 344.

6 For an excellent theoretical description and general history of the dynamics of the “Concert of Europe,” see Gulick, E. Europe’s Classical Balance of Power (1955)Google Scholar.

7 The best history of the concluding phases of the Napoleonic period and the resultant creation of the Congress system is Nicolson, H. The Congress of Vienna (1946)Google Scholar. For another view, see Kissinger, H. A World Restored (1977 ed.)Google Scholar See also Protocol of Aix-la-Chapelle, Nov. 15, 1818, Art. 1, 69 Parry’s TS 365, 4 Martens Nouveau Recueil 554 (in which Austria, France, Britain, Prussia and Russia pledged “never to depart. . . from the principles of intimate union which has hitherto presided over all of their common relations and interests”).

8 See generally Andersen, M. The Eastern Question: 1774–1923 (1966)Google Scholar; Graves, P. The Question of the Straits (1931)Google Scholar; Mosely, P. Russian Diplomacy and the Opening of the Eastern Question in 1838 and 1839 (1934)Google Scholar; Shotwell, J. & Deák, F. Turkey at the Straits: A Short History (1941)Google Scholar.

9 The Treaty of Kuchuk-Kainardji, July 21, 1774, Russia-Ottoman Empire, 45 Parry’s TS 349, 2 Martens Nouveau Recueil 286, ended the 6-year war between the two states. Before 1774, there had been no Eastern Question since no non-Turkish vessels plied the Black Sea. It was the private domain of the sultan: a closed sea (mare clausum). The growing influence of Russia and its occupation of the Crimea changed this situation. This Treaty granted Russia the right to have merchant vessels on the Black Sea. See M. Andersen, supra note 8, at xi–27.

10 Mutual Defense Treaty, Sept. 21, 1805, Russia-Ottoman Empire, 58 Parry’s TS 215, reprinted in 1 Hurewitz, J. Diplomacy in the Near and Middle East: A Documentary Record: 1535–1914, at 72 (1956)Google Scholar. The terms of this Treaty, never ratified, are still shrouded in mystery, even though it has been cited conclusively by later authorities. In dispute is whether Article VII gave Russia the right to transit the straits with warships. Thanks to accusations that the Russian scholar and imperial archivist, Sergei Goriainov, falsified this evidence, and the generally conflicting texts that exist, it will never be known whether the Turks granted this extraordinary privilege, a right they jealously guarded in the decades after 1805. Hurewitz, Russia and the Turkish Straits, 14 World Pol. 605 (1961–62)Google Scholar.

11 Defensive Alliance, July 8, 1833, Russia-Ottoman Empire, 84 Parry’s TS 1, 11 Martens Nouveau Recueil 655, reprinted in 1 J. Hurewitz, supra note 10, at 106. Russia had found an opportunity to reassert its influence over the Porte when the Ottoman regime was threatened by the insurgent Mehmet Ali of Egypt in 1833. This treaty was the price Turkey had to pay for Russian aid at that time. See M. Andersen, supra note 8, at 84–87.

A “separate and secret” clause annexed to the treaty provided that the Porte would “confine its action in favour of the Imperial Court of Russia to closing the strait of the Dardanelles, that is to say, not allowing any foreign vessels to enter therein under any pretext whatsoever.” Defensive Alliance, supra, Annex, Art. 1. Interpretations of this provision have varied. One scholar suggested that it acted as “a draw-bridge which the Sultan was obliged to raise at the bidding of the Tsar.” Phillipson, C. & Buxton, N. The Question of the Bosphorous and Dardanelles (1917)Google Scholar (citing Goriainov; see supra note 10). But cf. P. Mosely, supra note 8, at 11, 23 (quoting the Russian foreign minister, Count Nesselrode, as suggesting that the treaty only reaffirmed the ancient rule).

These arguments notwithstanding, the accord was limited in duration to 8 years.

12 Moreover, the ancient Ottoman rule was “particularly offensive to Russia, whose Black Sea fleets would be confined” to that sea. “On the other hand, the Ottoman rule also offered Russia a certain protection by preventing foreign warships entering the Black Sea through the Straits to attack her there. As long as Russia had no major interest in the Mediterranean this latter consideration prevailed.” 2 E. Buel, International Straits: A Treatise On International Law 276–77 (1947).

13 A second crisis in 1839–1840, precipitated by Mehmet Ali’s near overthrow of the sultan, resulted in western intervention on behalf of the Turks. In this way, Britain, Austria and Prussia circumvented what would have been another show of force by Russia on the sultan’s behalf, complicated further by France’s strong and intransigent support for Mehmet Ali. See M. Andersen, supra note 8, at 88–109. The London Convention, July 15, 1840, 90 Parry’s TS 285, 1 Martens Nouveau Recueil 156, defused a crisis that was far more serious than that of 1833 (see supra note 11) owing to the very real possibility of great-power intervention on both sides.

14 July 13, 1841, 92 Parry’s TS 7, 2 Martens Nouveau Recueil 128, reprinted in 1 J. Hurewitz, supra note 10, at 123 (signed by Britain, Russia, Austria, Turkey, Prussia and France).

15 J. Shotwell & F. Deár, supra note 8, at 37; C. Phillipson & N. Buxton, supra note 11, at 77. In 1840–1841 Russia suffered an even greater defeat than France, against which (as supporter of Mehmet Ali and Egypt) the treaties were directed. “Russian warships were closed in the Black Sea, the Straits were placed under the surveillance of European powers and limits were imposed upon the rights of Turkey itself since the latter was no longer free to open the Straits to the warships of any power whatsoever.” Italian Library of Information, The Regime of the Straits (1941) (available in English at Princeton University Library). The Straits Convention also saw the end of this round of aggression against Turkey by Russia and its contentment with a status quo that prevented enemy forces from threatening it in the Black Sea.

16 See Straits Convention, supra note 14, Art. 1.

17 Indeed, between 1841 and 1856, Russia was the chief guarantor of the regime. The tsarist Government vociferously protested the least indication that either the letter or the spirit of the 1841 Convention had been violated. St. Petersburg even challenged France’s dispatch of two warships into the Bosporous (with Ottoman permission) in 1847 to escort home a fleet of grain vessels attempting to avert a famine in Provence. Russia demanded and secured a statement that this incident would not be used as a precedent for allowing transit of warships through the straits. C. Phillipson & N. Buxton, supra note 11, at 151–52.

18 See M. Andersen, supra note 8, at 114–39.

19 Peace Treaty, Mar. 30, 1856, Arts. 11, 13 and 14, 114 Parry’s TS 409, 15 Martens Nouveau Recueil 770. The imposed demilitarization was a form of international servitude and occupied the gray area between obligations and territorial rights. “The particular treaty provisions . . . belong in the category of territorial rights whose violation did not involve any act of transgression on the territorial possessions of other states.” A. David, The Strategy of Treaty Termination 27 (1975). Andersen described the demilitarization of the Black Sea as “extremely harsh and unprecedented. Not until the even more stringent restrictions imposed on Germany in 1919 was a state to be forced to submit to so obvious and flagrant a limitation on its military freedom of action.” M. Andersen, supra note 8, at 144. This analogy to the Versailles peace settlement is instructive and will be discussed further below.

20 Tripartite Covenant, Apr. 15, 1856, Great Britain–France–Austria, 114 Parry’s TS 497, 15 Martens Nouveau Recueil 790.

21 See 3 Cicero, De Officiis *29, where it is noted that a ransom need not be paid to a pirate since he is hostis humani generis (enemy of all mankind). Implicit in this advice is the recognition of a change in circumstance, that is, no longer being in the captivity of the marauder.

22 1 Aquinas, T. Summa Theologica 80–84 (English Dominican trans. 1935)Google Scholar (noting that a man’s promise may be excused “if circumstances have changed with regard to persons and the business at hand”).

23 See Machiavelli, N. The Prince 98 (Marriot ed. 1960)Google Scholar (1513) (A “wise lord” ought not to keep faith when “the reasons which caused him to pledge it exist no longer”). But cf. 2 Textor, J. Synopsis Juris Gentium (Bate trans. 1916)Google Scholar (1680) (assertion that treaties need not be observed if new political situations arise is false and made only by “pseudo-politicians whispering into the ears of Princes”).

24 See Vamvoukos, A. Termination of Treaties in International Law 5–15 (1985)Google Scholar, who notes that Spinoza was the first to imply that rebus sic stantibus had a different character when applied to relations between individuals rather than to those between nations. Id. at 13; see also Spinoza, B. Tractus Theologico-Politicus 139 (Wernham trans. 1958)Google Scholar (1st ed. 1670). Rebus sic stantibus came to be regarded in this period as an implicit clause in agreements, intended by the parties to permit freedom of action with a change of circumstances. A. Vamvoukos, supra, at 10–15. Hence the full name of the doctrine, clausula rebus sic stantibus.

25 A. Vamvoukos, supra note 24, at 61–67, cites only five major episodes prior to the incident described in the next section. Ten other minor events could also have involved an invocation of rebus sic stantibus as a ground for terminating a treaty. Id. at 121–22 nn.1–10.

26 Holland, T. A Lecture on The Treaty Relations of Russia and Turkey From 1774 to 1853, at 1 (1877)Google Scholar; see also Vali, F. The Turkish Straits and Nato 24 (1972)Google Scholar.

27 Russia was approached on a number of occasions by states desiring its support, e.g., in 1858 when Austria sought diplomatic aid against France, and in 1867 when Austria was again trying to fend off a Prussian invasion. C. Phillipson & N. Buxton, supra note 11, at 101–02. Each time Russia refused to be embroiled in the dispute.

28 See M. Andersen, supra note 8, at 149–72.

29 T. Holland, supra note 26, at 30.

30 With the exception of light war vessels granted transit permission (firmans) for legation service and the Danubian patrol (see Paris Treaty, supra note 19, Art. 19), nine foreign warships passed through the straits during this period, including one British, one Austrian, one Prussian, one Russian and three American vessels. See C. Phillipson & N. Buxton, supra note 11, at 119. Cf. Brit. Parl. Rep., reprinted in 3 T. Hertslet, supra note 3, at 1895, which observed that one British ship illegally transited in 1862; one American in 1866; two American, two Austrian, one French and one Russian in 1868; and one Prussian in 1869. “It appears also that in 7 other instances, questions had arisen with regard to the passage of Foreign Ships of War through the Straits, but that in no case had a violation of the Treaty been shown to have taken place.” Id.

31 See M. Andersen, supra note 8, at 172.

32 See 3 T. Hertslet, supra note 3, at 1892–93. The diplomatic notes were channeled through Russia’s ambassador to London, Baron Brunnow. Copies were then dispatched to all other signatories of the Paris Peace Treaty. The first note was dated Oct. 31, 1870 (new style); the second, Nov. 1, 1870 (new style).

33 See Haraszti, Treaties and the Fundamental Change of Circumstances, 146 Recueil Des Cours 1, 16–17( 1975 III)Google Scholar.

34 See 3 T. Hertslet, supra note 3, at 1892.

35 Id.

36 See supra note 30.

37 As a practical matter, Roumania had no navy and could hardly have threatened Russia. See Haraszti, supra note 33, at 17. Prince Gorchakov admitted this point when he said, in the second circular, that “the consequences which may ensue to a Great Country from the creation of a small quasi Independent State” were largely irrelevant. See 3 T. Hertslet, supra note 3, at 1896.

38 3 T. Hertslet, supra note 3, at 1894.

39 Id. at 1893.

40 Id. at 1894 (emphasis added).

41 Gorchakov noted that the British had previously acquiesced in alterations to other aspects of the Paris Treaty regime. Id. at 1896.

42 Id. at 1895. The Russians could also claim as another special circumstance warranting treaty termination that the Russian Empire was now at peace with the other powers. See Protocols of the 1871 London Conference, reprinted in 18 Martens Nouveau Recueil 273, 276 [hereinafter Conference Protocols], and 61 Brit. & Foreign St. Papers 1193 (1870–71); see also Haraszti, supra note 33, at 17. The Russian claim was rather disingenuous, since the Paris Treaty had actually ended the hostilities. If taken literally, Russia might have been implying that since the Treaty was unequal and unilaterally imposed, it could be abrogated. See also Gorchakov’s dispatch to Vienna, Nov. 22, 1870, 60 Staatsarchiv, No. 4236, at 130–31 (Austrian Foreign Papers), quoted in Hill, C. The Doctrine of Rebus Sic Stantibus in International Law 48 (1934)Google Scholar (“Europe today is no longer that which signed the treaty of 1856” and “the political conditions in which this transaction was concluded have been radically changed”).

43 See M. Andersen, supra note 8, at 172.

44 See Mosse, W. The Rise and Fall of the Crimean System 161 (1963)Google Scholar.

45 See P. Graves, supra note 8, at 122.

46 The Russian foreign minister had decided to forward the circular letters, supra note 32, to Constantinople only after they had been received by the other powers. The Porte thus learned about this development from the English ambassador to Turkey.

47 Jelavich, B. The Ottoman Empire, the Great Powers, and the Straits Question, 1870–1887, at 29 (1973)Google Scholar.

48 Id. at 28.

49 See 72 Parl. Papers, supra note 2, at 52–53 (for Austrian and Prussian position). Italy believed that the 1856 treaties (including the Tripartite Covenant) had outlived their usefulness. Id.

50 See 3 T. Hertslet, supra note 3, at 1898–1900.

51 Lord Granville noted that this question was “wholly independent of the reasonableness or unreasonableness, on its own merits, of the desire of Russia to be released from the observation of the stipulations of the Treaty of 1856 respecting the Black Sea.” Id. at 1898–99.

52 Id. at 1900.

53 Id. at 1899.

54 The doctrine is known as nemo debet esse judex in propria causa. See Code J. 3.5.

55 This is arguably one of the first explicit incorporations of “the general principles of law recognized by civilized nations.” See Statute of the International Court of Justice, 59 Stat. 1055 (1945), TS No. 993, Art. 38, para. 1(c). The idea that nations may not be judges of their own causes seems to be a sine qua non in international law. Nevertheless, this assertion will be critically reviewed in section IV infra.

56 See W. Mosse, supra note 44, at 166.

57 Id.

58 While Bismarck had encouraged the Russian action, he realized in late November that it could touch off a second Crimean War and thus leave in question Prussia’s victories in France. See M. Andersen, supra note 8, at 172. Bismarck enthusiastically received Lord Granville’s envoy, Odo Russell, in Paris and discussed the prospects for an international conference to review the situation. The only condition for Britain’s support for such a meeting was that “it in no way be prejudiced by any previous assumption as to the result of its deliberations.” E. Satow, International Congresses 27–28 (1920). After some haggling, London was made the site of the conference and it was decided that it would be conducted at the ambassadorial level. See 3 T. Hertslet, supra note 3, at 1900.

59 See supra note 20 and accompanying text.

60 See 72 Parl. Papers, supra note 2, at 6.

61 Letter of Dec. 12, 1870, reprinted in B. Jelavich, supra note 47, at 35.

62 Letter of Dec. 10, 1870, reprinted in B. Jelavich, supra note 47, at 36.

63 See J. Shotwell & F. Deár, supra note 8, at 48.

64 The instructions that Vienna-Budapest gave to the ambassador in London, Apponyi, were characteristically equivocal: “[We] shall be ready to follow England wherever she wishes to go [in resolving this matter].” See B. Jelavich, supra note 47, at 36–37. Cf. text accompanying note 44 supra (for contrary instructions).

65 The Ottomans were in a perilous diplomatic position. Their two chief guarantors against Russian incursions had been neutralized: France by military defeat and Britain by its manifest unwillingness to offer support. B. Jelavich, supra note 47, at 6, 42. The Porte was confronted with a horrible dilemma. It could attempt to maintain the balance of power in the Near East created by the Paris Treaty and face the possibility of a war with Russia; or it could forsake the Paris regime, which had given the Turks 15 years of relative peace and tranquility, and seek an alliance with Russia and so recreate the conditions of Unkiar-Skelessi (see supra note 11).

66 See Conference Protocols, supra note 42, at 273–78 (Jan. 17, 1871).

67 Id. at 275–76. Baron Brunnow explained the circumstances under which the 1856 Treaty had been concluded and how these had changed, and that these circumstances and facts “ont déterminé les Puissances signataires à donner leur adhésion á différentes modifications qui ont contribué à altérer, en partie, la lettre des stipulations primitives.” Id. at 275. See also supra notes 34–40 and accompanying text.

68 Id. at 278–82 (Jan. 24, 1871).

69 This would mean that the Porte would “be freed from any international engagement relative to [the straits] and [that it would reserve] the right to open them or to close them to warships of other powers as its interests and security demand.” See Foreign Minister All’s instructions to Musurus, reprinted in B. Jelavich, supra note 47, at 44. Under the 1841 Straits Convention, the Ottoman Empire had been barred from opening the straits altogether. See supra notes 15–16 and accompanying text.

70 See 61 Brit. & Foreign St. Papers 1199 (1870–71); Conference Protocols, supra note 42, at 284 (Feb. 3, 1871) (trans, by author).

71 See B. Jelavich, supra note 47, at 49.

72 Conference Protocols, supra note 42, at 285 (Feb. 3, 1871).

73 Id. at 284.

74 Brunnow was undoubtedly receiving contradictory instructions from Gorchakov. He had been told not to demand any concession that would compromise the goal of getting recognition for the remilitarization of the Black Sea. See B. Jelavich, supra note 47, at 53, 55. Some historians have criticized Brunnow for his poor handling of this situation. See C. Phillipson & N. Buxton, supra note 11, at 7. This is probably unjustified. Brunnow was sensitive only to the problem of not appearing to undercut Turkish power. He undoubtedly knew that Musurus was right: Russia would have quickly renounced the clause if the British proposal prevailed. Russia, in fact, did just that when it entirely rejected the Paris Treaty regime and attacked the Turks in 1876. See infra note 79.

75 Conference Protocols, supra note 42, at 298 (Mar. 13, 1871); 72 Parl. Papers, supra note 2, at 4.

76 For the Ottoman Empire, this proposal not only reaffirmed the right of the sultan to open the straits at his discretion, but it also invoked the spirit of the Paris Treaty and so guaranteed Turkish independence. Britain and Austria were pleased since they assumed that Russian ships would be enjoined from passage, as that could never be compatible with the purposes of the Paris Treaty. Russia, of course, held exactly the opposite opinion.

77 Treaty of London, Mar. 13, 1871, Art. 2, 143 Parry’s TS 99, 18 Martens Nouveau Recueil 303, 3 T . Hertslet, supra note 3, at 1919.

78 See B. Jelavich, supra note 47, at 86.

79 See E. Buel, supra note 12, at 283; C. Phillipson & N. Buxton, supra note 11, at 162–63. This dispute nearly precipitated a war when British warships entered the straits to preserve Ottoman independence at the height of the Russo-Turkish War of 1876–1878. Id. at 154–55.

80 See supra note 3.

81 See, e.g., Sinha, B. Unilateral Denunciation of Treaty Because of Prior Violations By Other Party 80 (1966)Google Scholar; Hall, W. International Law 300 (1880)Google Scholar (implying that the declaration was an attempt by Granville to dislodge Russia from its position renouncing the neutralization of the Black Sea).

82 See supra note 58.

83 205 Parl. Deb. (3d ser.) 900 (1871) (remarks by Sir Charles Dilke).

84 Id. at 917 (remarks by Mr. Somerset Beaumont).

85 Id. at 954 (remarks by Sir Robert Peel, quoting Sir Charles Dilke).

86 See supra notes 74–79 and accompanying text.

87 206 Paul. Deb. (3d ser.) 794 (1871) (remarks by Lord Granville, who also said that “[t]his very delay . . . shows that it was our desire to make [the declaration] complete, and I am not sure that it was not worded even a little more strongly than on abstract grounds we might be entitled to expect”; id.).

88 205 Parl. Deb. (3d ser.) 900 (1871) (remarks by Sir Charles Dilke).

89 The Austrian draft read: the assembled plenipotentiaries “sont d’accord pour reconnaître comme un principe essentiel du droit des gens, qu’aucune puissance ne peut se délier ou se dégager des engagements d’un traité, ou en modifier les stipulations, sans en avoir préalablement communiqué et adressé la demande aux autres parties contractantes, et avoir obtenu leur assentiment.” Letter from Apponyi to Count Beust, Austrian foreign minister, Dec. 31, 1870, quoted in Pouritch, B. De La Clause «Rebus Sic Stantibus» En Droit International Public 103 (1918)Google Scholar. This strong draft again indicates the inherent contradictions in Austria- Hungary’s position, since it was ostensibly supporting both Russia and Britain in the negotiations. See also 72 Parl. Papers, supra note 2, at 52–53 (letter from Apponyi to Granville saying that the 1856 Treaty was too severe); Haraszti, G. Some Fundamental Problems of the Law of Treaties 334 & n.20 (1973)Google Scholar (quoting Count Beust as accepting the idea that the progress of time could bring into question the operation of treaties); and supra notes 44 and 64. The Austrian draft, at any rate, seemed to articulate a rule of unanimous consent for treaty changes.

90 See 72 Parl. Papers, supra note 2, at 42–3 (quoting the Italian reply to the Gorchakov circular as saying that “a previous concert is the necessary condition of any change that it may seem advisable to introduce” in a treaty regime).

91 Letter from Russia to Austria, Nov. 22, 1870, in which Gorchakov confirmed that no treaty concluded in common could be modified except by common consent, but that “such transaction does not preserve its obligatory value for all except as long as its essential bases and its conditions have been equally observed and maintained.” See C. Hill, supra note 42, at 50 n.16. From that statement, one can wonder whether Russia was really sincere in entering negotiations without prejudging their outcome. See supra note 82 and accompanying text.

92 See B. Pouritch, supra note 89, at 104 (draft contained in Apponyi’s letters to Beust of Jan. 5 & 12, 1871). For the final draft of the declaration, see text at note 3 supra.

93 See Conference Protocols, supra note 42, at 296 (Mar. 13, 1871). The French minister had been delayed owing to the last phases of the war with Prussia.

94 See 205 Parl. Deb. (3d ser.) 899 (1871) (remarks by Sir Charles Dilke).

95 See Conference Protocols, supra note 42, at 296–97 (Mar. 13, 1871) (trans, by author).

96 See supra notes 6 and 7 and accompanying text.

97 See Hoyt, E. The Unanimity Rule in the Revision of Treaties: A Re-Examination 7 (1959)Google Scholar. Like the Apponyi draft, supra note 89, the French interpretation required unanimous consent to change a treaty regime.

98 See Conference Protocols, supra note 42, at 297 (Mar. 13, 1871).

99 See 205 Parl. Deb. (3d ser.) 922, 927 (1871) (speech by Mr. Ryiands).

100 Mill, Treaty Obligations, 8 Fortnightly Rev. (n.s.) 715 (1870)Google Scholar, excerpted in 5 Moore, J. B. Digest of International Law 339–40 (1906)Google Scholar.

101 5 J. B. Moore, supra note 100, at 339.

102 See Haraszti, supra note 33, at 19 n.7. See also C. Hill, supra note 42, at 50 & n.15 (quoting Bismarck as saying that Germany would judge the dispute merely by the canons of good faith).

103 See 2 Bismarck, O. Reflections and Reminiscences 270 (London 1898)Google Scholar (“No great nation will ever be induced to sacrifice its existence on the altar of fidelity to contract when it is compelled to choose between the two”), quoted in 5 J. B. Moore, supra note 100, at 340. See also Smith, F. International Law 10 (4th ed. 1911)Google Scholar (“A most damaging blow was struck by one of the greatest European statesmen of the nineteenth century, and international law will not soon recover from the cynical contempt with which Prince Bismarck . . . was never tired of bespattering it”).

104 Hall, W. International Law 300 (1880)Google Scholar.

105 Id.

106 See, e.g., F. Smith, supra note 103, at 10 (“the Declaration is sometimes cited as a success for the authority of international law: it is to be hoped that its principles will not be exposed to many such Pyrrhic victories”); Lawrence, T. J. Principles of International Law 328 (4th ed. 1911)Google Scholar (“a little consideration will show that [the declaration] is as untenable as the lax view that would allow any party to a treaty to violate it on the slightest pretext”); Renault, L. Question d’Orient 27 (unpub., Cours de doctorat, Paris, 1913–14)Google Scholar (describing the London Conference as a “diplomatic comedy”). Westlake made substantially these same points in 1904, but also referred to the Paris Treaty’s provision concerning neutralization of the Black Sea as perpetuating an obsolescent regime. See 1 Westlake, J. International Law 285–86 (1904)Google Scholar.

107 Wheaton, H. Elements of International Law 96a (Boyd ed. 1880)Google Scholar.

108 Id. at 96b.

109 Lawrence, T. J. The Principles of International Law 98 (3d Rev. ed. 1909)Google Scholar.

110 T.J. Lawrence, supra note 106, at 327–28.

111 1 Lorimer, J. The Institutes of the Law of Nations 47 (1883)Google Scholar. See also T. J. Lawrence, supra note 106, at 328 (“International Law certainly does not give a right of veto on political progress to any reactionary member of the family of nations . . .”).

112 See C. Murphy, The Search for World Order 154 (1985)Google Scholar.

113 1 J. Lorimer, supra note 111, at 48 (“If Russia committed an error then, it was the formal error which Lord Granville alleges against her . . .”).

114 See supra notes 6 and 7 and accompanying text.

115 League of Nations Covenant art. 19. Cf. Preamble (“The High Contracting Parties, in order to promote international cooperation and to achieve international peace and security . . . by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organized peoples with one another, agree to this Covenant”).

116 Id., art. 19. The French version of this article is slightly different since it raises the possibility that both treaties and international situations may be subject to “nouvel examen,” or reconsideration. The provision was subsequently interpreted so that the advice to reconsider treaties

can only be given . . . 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.

Report of the Committee of Jurists, 2 League of Nations O.J. 466 (1921) (offered as advice to the League Assembly when Bolivia invoked the clause against Chile). The jurists clearly envisioned consideration of the doctrine of rebus sic stantibus whenever Article 19 was invoked. The emphasis on both “material” and “moral” grounds for treaty termination is also significant.

117 For more on Article 19 of the Covenant, see Woolf, L. Revision of Treaties and Changes in International Law (1934)Google Scholar; Hu, H. Treaty Revision under Article 19 of the Covenant (1931)Google Scholar; Schneider, W. die völkerrechtliche Clausula rebus sic stantibus und Article 19 Der Völkerbundssatzung (1931)Google Scholar; Radoïkovitch, M. La Révision des Traités Et Le Pacte de La Société des Nations 135 (1930)Google Scholar (“the obligation to remain faithful to treaties has its limits”); Williams, Fischer The Permanence of Treaties, 22 AJIL 89,99–102 (1928)Google Scholar; Goellner, A. L’article 19 du Pacte de La Société des nations 10 (1925)Google Scholar (the rule of pacta sunt servanda is tempered and conciliated by the doctrine of rebus sic stantibus); Alinski, Z. Les Possibilités De La Révision Des Traités D’aprés Le Pacte De La Société Des Nations (1924)Google Scholar (all volumes available at the Hague Academy of International Law Library).

118 See B. Pouritch, supra note 89, at 80.

119 Id. at 80–81 (“La Conference a proclamé le principe de I’impossibilité d’une denunciation unilatérale, un principe contradictoire et incompatible avec ses travaux postérieurs, car, en réalité, elle a reconnu la régie rebus sic stantibus et ne s’est occupée que d’en organiser la procédure”).

120 Id. at 106.

121 Ironically, the 1878 Berlin Conference was convened when the straits regime created at London in 1871 disintegrated into the Russo-Turkish War. See supra note 79.

122 1 L. Oppenheim, International Law 693 (R. Roxburgh 3d ed. 1920).

123 One reason for this was states’ insistence on imposing servitudes on other nations. Oppenheim’s treatise suggested that these clauses (of which the demilitarization of the Black Sea was certainly one) should also be subject to the rebus sic stantibus doctrine. Id. at 371. For a contemporary treatment of the problem, see S.S. Wimbledon (Fr./Italy/Japan/UK v. Ger.), 1923 PCIJ (ser. A) No. 1 (Judgment of June 28) (legal status of the Kiel Canal under Versailles Treaty).

124 See 1 L. Oppenheim, supra note 122, at 693; Fischer Williams, supra note 117, at 102.

125 Fenwick, C. International Law 347 (1924)Google Scholar.

126 Id. at 345.

127 Woolsey, The Unilateral Termination of Treaties, 20 AJIL 346, 349 (1926)Google Scholar.

128 Id. See also 1 Cobbett, P. Cases on International Law 339–40 (F. Grey 5th ed. 1931)Google Scholar (substantially repeats this passage and adds that this “rule may probably be regarded as the primary rule from which the law of nations on this subject starts”).

129 See Denunciation of the Treaty of November 2nd, 1865, between China and Belgium (Belg. v. China), 1927 PCIJ (ser. A) No. 8 (Order of Jan. 8), where Belgium sought relief from China’s announced denunciation of an 1865 peace treaty containing “unequal” extraterritorial provisions. This case was ultimately settled by agreement. It was also the first case of nonappearance before the World Court when China refused to agree to the Court’s jurisdiction.

130 Putney, The Termination of Unequal Treaties, 21 ASIL Proc. 87, 89 (1927 Google Scholar).

131 Butler, G. & Magcoby, S. The Development of International Law 523 (1928)Google Scholar.

132 Putney, supra note 130, at 90 (characterizing termination of unequal treaties as neither “a matter of strict legal right” nor one that “can be settled by arbitration or before any world court or The Hague. It is still a question of diplomacy, and, to a large extent, a question of force, as to what a country is able to secure”). The chief proponent of the principle that an international tribunal should rule on claims of rebus sic stantibus was the influential Harvard Research on International Law. See Harvard Draft on the Law of Treaties, Art. 28, para, (a), reprinted in 29 AJIL Supp. 1096 (1935) [hereinafter Harvard Draft].

133 G. Butler & S. Maccoby, supra note 131, at 524. See also Wild, P. Jr. Sanctions and Treaty Enforcement 13 and 16 (1934)Google Scholar; Krabbe, H. The Modern Idea of the State 265–67 (Sabine & Shepard trans. 1930)Google Scholar (rejecting the possibility of negotiated modifications to treaties when “support for a decision between right and wrong” is based on the “unstable foundations of an unorganized legal community”).

134 Fischer Williams, supra note 117, at 95.

135 See Treaty of Peace between the Allied and Associated Powers and Germany, June 28, 1919, Arts. 42–50, 1919 Gr. Brit. TS No. 4 (Cmd. 153), 225 Parry’s TS 188 [hereinafter Versailles Treaty] (Article 44 provided that “[i]n case Germany violates [the demilitarization of the Rhine] she shall be regarded as committing a hostile act against the powers signatory of the present Treaty and as calculated to disturb the peace of the world”).

136 Fischer Williams, supra note 117, at 98 (“In such conditions the Black Sea clauses might be said to be nothing but reminders of a system that was dying or dead”).

137 Id. at 91.

138 Id. at 91–92.

139 Id. at 102–03; note 124 supra and accompanying text.

140 Havana Convention on Treaties, Feb. 20, 1928, Art. 10, Pan-Am. L. & T.S. No. 34, reprinted in 4 Hudson, M. International Legislation 2378 (1931)Google Scholar (“No State can relieve itself of the obligations of a treaty or modify its stipulations except by the agreement, secured through peaceful means, of the other contracting parties”). See also Harvard Draft, supra note 132, at 984.

141 16 League of Nations O.J. 546–52, 569–71 (1935) (resolution of Apr. 18, 1935)(“it is an essential principle of the law of nations that no Power can liberate itself from the engagements of a treaty nor modify the stipulations thereof unless with the consent of the contracting parties”; id. at 551).

142 See Free Zones of Upper Savoy and the District of Gex (Fr. v. Switz.), 1929 PCIJ (ser. A) No. 22, at 29–30 (Order of Aug. 19) (Negulesco, J., sep. op.), where it was argued that the London Declaration recognized the rebus sic stantibus doctrine but refused a right of unilateral termination. See also Oscar Chinn Case (UK v. Belg.), 1934 PCIJ (ser. A/B) No. 63, at 134 (Judgment of Dec. 12) (van Eysinga, sep. op.) (repeating London Declaration in interpreting the 1885 Act of Berlin).

143 See supra note 113 and accompanying text, for Lorimer’s hint at this theory.

144 See, e.g., Huang, T. the Doctrine of Rebus Sic Stantibus in International Law 60 (1935)Google Scholar (available at the Hague Academy of International Law Library); Harvard Draft, supra note 132, at 1124; Hatschek, J. an Outline of International Law 171 (C. Manning trans. 1930)Google Scholar; 1 Anzilotti, D. Cours de Droit International 458–59 (G. Gidel trans. 1929)Google Scholar.

145 See Tobin, H. The Termination of Multipartite Treaties 194 (1933)Google Scholar.

146 Id. at 204.

147 Id. at 221.

148 Tobin noted that the negotiators at London proceeded to modify the 1856 Paris Treaty without the approval of some minor states that had signed the earlier document. Id. at 220. The author apparently forgot that Italy was the successor state to the previous Kingdom of Sardinia, and that the North German Confederation had succeeded Prussia. Therefore, all the parties to the Paris Treaty participated in the London negotiations.

149 Rodgers, Future International Laws of War, 33 AJIL 441, 444 (1939)Google Scholar.

150 See UN Charter art. 14.

151 See Ross, A. A Textbook of International Law 221–22 (1947)Google Scholar; cf,. Brierly, J Law of Nations 207–08 (2d ed. 1936)Google Scholar (noting that Covenant Article 19 was an improvement on the declaration).

152 But see Caviedes, Poch de De la Clause «rebus sic stantibus» à la clause de révision dans les conventions international, 118 Recueil Des Cours 105, 181 (1966 II)Google Scholar (who makes this argument). Another way that scholars reconciled rebus sic stantibus with pacta sunt servanda was to claim that both were positive-law doctrines and that the former could be legally narrowed in definition. See Kunz, The Meaning and Range of the Norm Pacta Sunt Servanda, 39 AJIL 180, 190 (1945)Google Scholar. This approach was hinted at in the Harvard Draft, supra note 132, at 991–92.

153 Arguably the weakest of the primary sources of international law. ICJ Statute, supra note 55, Art. 38, para. 1(c). See also Cheng, B. General Principles of Law Applied by International Courts and Tribunals 113, 118–19 (1953)Google Scholar (arguing that rebus sic stantibus is only applicable in cases where a treaty is interpreted beyond the bounds of what the parties had originally intended).

154 The declaration was not mentioned once in what was the most comprehensive analysis of the law concerning the termination of treaties, conducted by the Institute of International Law. See 49 Annuaire De l’ Institut de Droit International 1–297 (1961).

155 See Vienna, Convention on the Law of Treaties, opened for signature May 23, 1969,Google Scholar Art. 62, UNTS Regis. No. 18,232, UN Doc. A/CONF.39/27 (1969), reprinted in 8 ILM 679 (1969) [hereinafter Vienna Convention]. For a summary of the negotiating history of Article 62, see Rosenne, S. The Law of Treaties 324–27 (1970)Google Scholar.

156 The Vienna Convention provides that rebus sic stantibus cannot be invoked as a ground for termination unless the change in circumstances complained of (1) was an essential basis of consent by the parties (a condition suggested by Tobin, supra note 146); (2) was not foreseen at the time of negotiation; (3) radically transforms the obligations of the parties (likewise a concern of Tobin, supra note 145); (4) was not a result of breach by the complaining state; and (5) does not affect the establishment of a boundary. Vienna Convention, supra note 155, Art. 62.

157 See E. Hoyt, supra note 97, at 7; B. Sinha, supra note 81, at 79–81.

158 B. Sinha, supra note 81, at 81 (where the declaration is interpreted as applicable only to a situation where there is a material breach of treaty terms).

159 See G. Haraszti, supra note 89, at 336–37. This argument is substantially repeated in Haraszti, supra note 33, at 16–19.

160 G. Haraszti, supra note 89, at 337.

161 Cf. Kaufmann, E. Das Wesen des Völkerrechts und die Clausula Rebus Sic Stantibus (1911)Google Scholar, where the most extreme version of the rebus sic stantibus doctrine was expressed. Kaufmann rejected the idea that an amicable overture is required before unilateral termination. Id. at 221.

162 See Bogaert, van Le Sens de la clause «rebus sic stantibus» dans le droit des gens actual, 70 Revue Générale de Droit International Public 49, 59 (1966)Google Scholar (an isolated modern instance where the declaration was fully endorsed). Jan Verzijl’s answer to Haraszti’s inquiry, about what the declaration did not resolve, is also indicative of Western optimism. He suggested that questions of the application of rebus sic stantibus should be referred to an “impartial tribunal on the basis of the law in force.” See 6 J. Verzijl, supra note 4, at 359. See also supra notes 132–33 and accompanying text.

163 See, e.g., The Politics of Law (D. Kairys ed. 1982); Peller, The Metaphysics of American Law, 73 Cal. L. Rev. 1151 (1985); Duncan, Kennedy The Structure of Blackstone’s Commentaries, 28 Buffalo L. Rev. 205 (1979)Google Scholar.

164 The best exponent of this school is David, Kennedy. His views in Theses about International Law Discourse, 23 Ger. Y.B. Int’l L. 353 (1980)Google Scholar [hereinafter Kennedy, Theses], form the essential basis for this author’s characterization of the critical international law jurisprudence. See also his latest contribution, The Sources of International Law, 2 Am. U.J. Int’l L. & Pol’y 1 (1987) [hereinafter Kennedy, Sources]. For other critical approaches to international law, see Carty, A., The Decay of International Law? A Reappraisal of The Limits of Legal Imagination in International Affairs (1986)Google Scholar (with significant doctrinal reservations); Boyle, J. Ideals and Things: International Legal Scholarship and the Prison-house of Language, 26 Harv. Int’l L.J. 327 (1985)Google Scholar; Note, Applying the Critical Jurisprudence of International Law to the Case Concerning Military and Paramilitary Activities in and against Nicaragua, 71 Va. L. Rev. 1183 (1985) [hereinafter Virginia Note].

165 See, e.g., Degeorge, R. & Degeorge, F. The Structuralists: From Marx to Levistrauss (1972)Google Scholar: Gabel, Intention and Structure in Contractual Conditions: Outline of a Method for Critical Legal Theory, 61 Minn. L. Rev. 601 (1977)Google Scholar.

166 See Kennedy, Theses, supra note 164, at 359–60.

167 Id. at 364–67. “Binary argument” means that the responses to an inquiry reduce to two (apparently) mutually incompatible ideas. Id. “Transformation” means that an idea can stand for its opposite when viewed at either a more abstract or a more concrete level. It also means that the contradictory ideas can themselves cease to be in conflict. For examples of transformation, see Virginia Note, supra note 164, at 1188–90.

168 Ignoring the other two contradictions opens the analysis below to the criticism that it, too, suffers from the defect of binary/transformative argument. Without undertaking a full rhetorical assessment of this phenomenon, one can still say that it applies to all modes of intellectual discourse, not just law. Skillful rhetoricians, which the critical jurists certainly are, can always “flip” an argument. See also Kratochwil, Is International Law “Proper” Law?, 69 Archiv Für Rechts-und Sozial Philosophie 13 (1983)Google Scholar.

169 See Kennedy, Theses, supra note 164, at 368–72. The critics’ terminology for this tension in sovereignty has shifted. In a more recent article, Kennedy referred to it as the paradox of “normative autonomy” and “normative authority.” Kennedy, Sources, supra note 164, at 23.

170 This is implicit in David Kennedy’s article, Primitive Legal Scholarship, 27 Harv. Int’l I.J. 1, 7–10 (1986).

171 But see Kennedy, Theses, supra note 164, at 373 n.23, where he observes that

reciprocity will not tell a state whether it prefers a world in which states respect treaties or in which they do not. . . . Either strictness or mercy may be reciprocal. At this point one is returned to a decision to follow or break the treaty.. . . [T]reaty breaking is associated with national autonomy, and following [a treaty] with international solidarity. But the reverse may as well be true. To release a state from a harsh treaty may be an expression of merciful community solidarity, while to hold a state to such a treaty may be an expression of national autonomy.

Kennedy emphasizes here the notion of “reciprocity” in state relations, and leaves unaddressed the paradox of rebus sic stantibus.

Kennedy does, however, treat this issue in a later article. See Kennedy, Sources, supra note 164, at 57–70. His emphasis there is on characterizing rebus sic stantibus as containing elements of both “hard” and “soft” rhetorics for discourse on sources of international law. Kennedy is particularly interested in what he identifies as the two faces of the rebus sic stantibus doctrine: one consensual (the clausula impliedly inserted in all international agreements), and the other premised on justice (relieving the hardship imposed by obligations). Id. at 57–61. Nevertheless, in his treatment of rebus sic stantibus, Kennedy does not really attack what are arguably the inherent contradictions between it and the principle of pacta sunt servanda. This problem was discussed earlier in one piece of proto-critical literature. See 2 Ostrower, A. Language, Law, and Diplomacy 794–98 (1965)Google Scholar (noting that the “peaceful” in “peaceful change” was a misnomer because of the rebus sic stantibus doctrine).

Anthony Carty (supra note 164) deals directly with the London Declaration and the problem of rebus sic stantibus in international law theory. But one can legitimately wonder if he is a member of the critical school. His methodology approximates the critical rhetoric, but he concludes that international relations are in a “state of nature,” and that international law remains natural taw, a result that associates him with the realist branch of the discipline. See infra note 190.

172 The critical jurists apparently accept the supremacy of positive over natural law. See Virginia Note, supra note 164, at 1190. But then Kennedy contends that positive law is an empty vessel. See his Theses, supra note 164, at 383–84. Treaties, of course, are the ultimate source of positive law in international relations. See ICJ Statute, supra note 55, Art. 38, para. 1(a).

The critics’ view of the hierarchy of sources in international law is fully explicated in Kennedy, Sources, supra note 164, at 17–20, where he notes that

some hierarchy seems to need to be established in order to develop an internally coherent and sufficiently independent scheme of authority. Otherwise, the scheme might produce equally authoritative norms among which one would then be obliged to choose on the basis of their content. . . .

The sense that hierarchy needs explaining, like the sense that the abstract boundaries of enumerated sources need elaboration, reveals the shared sense that sources discourse is meant to delimit abstractly and authoritatively the norms which bind states in such a way that they might remain free to establish and disagree about the content of these norms as their interests or a natural order might dictate.

Id. at 18–20 (citations omitted).

173 See Kennedy, Theses, supra note 164, at 383.

174 See Virginia Note, supra note 164, at 1191. The critics call this an “objective” view of positive international law.

175 Id. This is the “subjective” position for positive international law.

176 See supra notes 26–45 and accompanying text. See also A. Carty, supra note 164, at 72–73.

177 Great Britain, Austria and France could have triggered the provisions of the Tripartite Covenant, supra note 20. See generally supra notes 46–63 and accompanying text. See also A. David, supra note 19, at 28 (“The Declaration of London also marked the beginning of a new era in which legitimacy and controlling power concerning the termination of international agreements became divorced from one another”).

178 See supra notes 64–77 and accompanying text.

179 See supra notes 93–103 and accompanying text.

180 See supra note 102. This also describes the primitivist position; see below.

181 See supra notes 104–13 and accompanying text.

182 See Dinstein, International Law as a Primitive Legal System, 19 N.Y.U. J. Int’l L. & Pol. 1, 7–8 (1986)Google Scholar (for the observation that international law norms have proliferated in recent years); Boyle, supra note 164, at 339. The susceptibility of international law to novel, and destructive, norms was also noted by Jan Verzijl, text at note 5 supra.

188 See supra notes 127–28 and 134–39 and accompanying text.

184 One commentator said that as a result of these interpretations of the London Declaration, “[t]he rules were perceived as static, while flexibility, adjustment, and change were regarded as political questions. Not only did they not take notice of the problems of peaceful change in the relevant social framework, but they also totally ignored the dynamic aspect of conflict situations . . . .” A. David, supra note 19, at 28–29.

185 See supra notes 145–47 and accompanying text.

186 See supra notes 155–56 and accompanying text.

187 See supra notes 143 and 144 and accompanying text.

188 Onuf, , Do Rules Say What They Do? From Ordinary Language to International Law, 26 Harv. Int’l L.J. 385, 392 (1986)Google Scholar (“A number of opposed, very general principles structure international legal discourse and not all of them derive from the opposition of sovereignty and cooperation”).

189 Id.

190 Here is a schematic representation of these oppositions:

The critical view has been explicated above. The functionalist and realist schools, of course, enjoy the greatest currency today and the scholarly debate has proceeded on the assumption that sovereignty can be overcome in international relations. The functionalist and realist disagree strongly, however, over whether this is a desirable development.

191 The best description of the style and doctrinal views of the primitive international legal scholars (those writing before 1648) is by David Kennedy, supra note 170, at 5–10. “Primitivist,” as used in this article, means an approach to the first principles of international law that emphasizes the unity of natural and positive sources in law and morality. In a later article, Kennedy noted that publicists writing before 1648 tended not to “establish a hierarchy among sources, but suggested that norms from each [category] might, depending upon their content, overrule those of another.” Kennedy, Sources, supra note 164, at 90. This observation applies to how primitivists view not only the sources of international law, but also its doctrinal contents. This approach produces, in turn, “source discourse,” which Kennedy disparagingly describes as “simply catalogu[ing] norms which comport[] with sovereign will.” Id.

192 Shaw, M. International Law 17–25 (2d ed. 1986)Google Scholar. The relevance of this sort of review has been consistently questioned. In Yambrusic, E. Treaty Interpretation (1987)Google Scholar, no less than ten fundamental changes have been noted between today’s world order and that of the Peace of Westphalia. Id. at 2. But one can question whether some of these are real changes. Seventeenth-century international relations were, like today’s, polycentric, profuse and ideologically divergent (with the impact of the Enlightenment), featuring different levels of “human development” (a comparison of British and Russian cultures should suffice) and limitations on sovereignty.

193 Dinstein, supra note 182, at 25 (for a discussion of the use of this legal fiction in international law).

194 See UN Charter, Preamble (“We the Peoples of the United Nations”); League of Nations Covenant, Preamble (recognizing that observance of treaty obligations is essential to “the dealings of organized peoples with one another”).

195 Genesis 11:1–9.

196 Paul, Ramsey, one of the leading Christian ethicists, discusses this phenomenon. See his book of essays, The Just War 9, 178–79 (1968)Google Scholar. Although Ramsey’s endorsement of the nation-state system is qualified by the notion of justness (both in war and in peace), this does not detract from his view that the state is the institution that must be controlled so that individual aggression can be channeled. Id. at 419, 499.

197 Jenks, C. Law in the World Community 32, 34 (1967)Google Scholar.

198 One example unifies primitivist and modern visions of state supremacy: they agree that the state is the only human authority that can wage war. See 2 Aquinas, T. Summa theologica 578 (O. Sullivan Rev. ed. 1952)Google Scholar (“just war” demands state action); UN Charter, Preamble, arts. 1, 2 (nations are charged with preventing aggressive wars contrary to the Charter). See also Mushkat, Who Can Wage War? An Examination of an Old/New Question, 2 Am. U.J. Int’l L. & Pol’y 97, 98–101, 104–07 (1987)Google Scholar.

199 See Kennedy, Sources, supra note 164, at 42–43; Boyle, supra note 164, at 337. This is not a new idea. See Harvard Draft, supra note 132, at 989 (citing Paradier-Fodéré and Redslob).

200 See supra note 172 and accompanying text.

201 See, e.g., 1 D. Anzilotti, supra note 144, at 42–44.

202 Kelsen, Les Rapports de Systeme entre le droit interne et le droit international public, 14 Recueil des Cours 227, 302 (1926 IV)Google Scholar.

203 This assertion has two faces. “Auto-limitation” means that treaties are only binding because states wish to be bound. This is analogous to free-will theories in municipal contract law. See Harvard Draft, supra note 132, at 987, 988; A. Carty, supra note 164, at 71–72 (relying-on Vattel for this affirmation of pacta sunt servanda); notes 21–25 supra and accompanying text.

The second face of this assertion bears on the issue of interpretation of agreements. Some scholars suggest that “[w]hen a treaty imposes obligations but does not provide any authoritative means for interpreting them, it is understood that the parties to the treaty will have the power to interpret their obligations for themselves.” Elkind, J. Non-Appearance Before the International Court of Justice 118 (1984)Google Scholar. This is a much milder proposition than the primitivist would assert. This exception does not even reach the issue of termination of treaty obligations. For more on this “auto-interpretation” theory, see Watson, Autointerpretation, Competence, and the Continuing Validity of Article 2 (7) of the Charier, 71 AJIL 60 (1977)Google Scholar; Lauterpacht, H., The Function of Law in the International Community 3 (1933)Google Scholar.

204 See supra notes 21–23 and accompanying text.

205 See supra note 24.

206 See supra notes 115–48 and accompanying text.

207 See Vienna Convention, supra note 155, Art. 62.

208 See A. Vamvoukos, supra note 24, at 72–127.

209 See B. Cheng, supra note 153, at 279–89; 1 Scott, J. B. Acts and Documents, Second International Peace Conference 367 (1907)Google Scholar (“It is a universally accepted doctrine that no one can be a judge in his own cause and all systems of law adopt it”). See also supra notes 54 and 55 and accompanying text.

210 See UN Charter art. 27, para. 3 (compelling Security Council members party to a dispute to abstain in certain instances); South-West Africa—Voting Procedure, 1955 ICJ Rep. 67, 90, 98–99 (Advisory Opinion of June 7) (Lauterpacht, J., sep. op.) (suggesting that it was a principle of wide general application, not confined to strictly judicial proceedings); Article 3, paragraph 2 of the Treaty of Lausanne (Frontier between Turkey and Iraq), 1925 PCIJ (ser. B) No. 12, at 32 (Advisory Opinion of Nov. 21) (ruling that states in the League Council should abstain from voting in disputes between themselves); B. Cheng, supra note 153, at 279 n.4 (citing three arbitrations, involving state termination of commercial contracts, where the nonself-judgment principle was applied).

211 See supra notes 53–55 and accompanying text.

212 London Declaration, supra note 3 (emphasis added).

213 Cf. supra notes 87–92 and accompanying text.

214 This phrase is borrowed from A. Carty, supra note 164, at 1–2, 131. See also David Kennedy, Book Review, 81 AJIL 451 (1987) (for another opinion of Carty’s contribution).