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The Attorney General Invokes Rebus Sic Stantibus

Published online by Cambridge University Press:  12 April 2017

Herbert W. Briggs
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Extract

On August 9, 1941, President Franklin D. Roosevelt proclaimed that the International Load Lines Convention of 1930 was no longer binding on the United States "for the duration of the present emergency." He based this unilateral suspension of the treaty on "changed conditions" which, he said, had conferred on the United States "an unquestioned right and privilege under approved principles of international law" to declare the treaty inoperative. The President's proclamation was made on the advice of Acting Attorney General Francis Biddle who had informed the President that: "It is a well-established principle of international law, rebus sic stantibus, that a treaty ceases to be binding when the basic conditions upon which it was founded have essentially changed. Suspension of the convention in such circumstances is the unquestioned right of a state adversely affected by such essential change."

Type
Editorial Comment
Information
American Journal of International Law , Volume 36 , Issue 1 , January 1942 , pp. 89 - 96
Copyright
Copyright © American Society of International Law 1942

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References

1 Cf. Department of State Bulletin, Vol. V, No. I l l (Aug. 9, 1941), pp. 114-115.

2 Opinions of the Attorney General of the United States, Vol. 40, No. 24 (July 28, 1941): International Load Line Convention.

3 Chesney Hill, The Doctrine of "Rebus Sic Stantibus" in International Law. University of Missouri Studies, Vol. IX (1934), p. 7.

4 Ibid., p. 75.

5 Ibid. Professor Hill adds:" A change of circumstances becomes relevant to the obligatory force of a treaty only in so far as it is related to the wills of the parties to the treaty at the time of the conclusion of the treaty. It is not an objective rule of international law which is imposed upon the parties, but is a rule for carrying the intention of the parties into effect." Ibid., p. 77. This conception of the doctrine of rebus sic stantibus, he adds, was that adopted by Turkey in 1922, by Belgium in 1927, by France in 1928 and 1931, by Persia in 1929, by Swiss courts in 1882 and 1928, and by the U. S. Court of Claims in Hooper, Admr., v. U. S., 22 Ct. CI. 408 (1887).

6 U. S. Treaty Series, No. 858, p. 153; 47 Stat. L. 2228.

7 40 Op. Atty. Gen., No. 24, p. 2.

8 The statement of the Department of State (Bulletin, he. cit., p. 114) that it "has conferred with the American republics that are parties to the convention, namely, Argentina, Brazil, Chile, Cuba, Mexico, Panama, Peru, and Uruguay, all of which have agreed to the suspension" is not evidence that suspension of the convention by the United States was in accordance with Article 20. Neither the Attorney General in his opinion nor the President in his proclamation makes any such assertion.

9 Sir Arthur Salter to Mr. Ickes, in Release from Petroleum Coordinator Ickes. Congressional Record, Vol. 87, p. 8412 (daily edition, Oct. 23, 1941).

10 10 Cf. N. Y. Times, June 12, 1941, 26:4, and passage of H. R. 4988 to amend Sec. 2 of the Act of Aug. 27, 1935, as amended. Cong. Rec, Vol. 87, pp. 5329 (June 16, 1941) and 5844 (June 30, 1941).

11 11 40 Op. Atty. Gen., No. 24, p. 1. Whether the alleged desirability of suspending the International Load Lines Convention was due to the domestic situation or due to our aid-to- Britain policy is far from clear. In announcing in October that the British were returning forty oil tankers to "the normal American service," the office of the Petroleum Coordinator stated, in part: "The diversion of American-flag tankers to the shuttle service, as part of the aid-to-Britain program, began last spring. Later, still more ships were transferred to the shuttle movement, but the exact number was never officially announced. . . . (The shuttle service involves the hauling of oil from Caribbean and Gulf coast ports to points north of Cape Hatteras by American-flag tankers. From these points it is reshipped to England and the British Empire in British or foreign-flag vessels.)" Cf. Statement by Petroleum Coordinator Harold L. Ickes on Return of American Tankers. Cong. Rec, Vol. 87, p. 8412 (Oct. 23,1941). If the American tankers diverted to the British were engaged in the coastwise trade, they were not engaged in "international voyages" within the scope of the International Load Lines Convention. That convention applies only to "ships engaged in international voyages" (Art. 2); and an international voyage is defined as "a voyage from a country to which this Convention applies to a port outside such country, or conversely" (Art. 3). Moreover, load line regulations in regard to coastwise shipping had been relaxed prior to Mr. Ickes' request of July 17.

12 12 It is difficult to discover what sixteen maritime states the Attorney General had in mind; but he does not say they were under "enemy" occupation, and possibly he refers to states like Iceland, Latvia, or Egypt, or to colonies, which, however, under Article 21 of the convention, do not accede or ratify in their own names.

13 13 Cf. Hill, op. cit., p. 14: "The doctrine of rebus sic stantibus, whatever its definition, is usually regarded as a rule for the termination of the obligations of a treaty, and not as a rule for the suspension or the revision of the obligations of a treaty." Italics supplied.

14 14 This JOURNAL, Supp., Vol. 29 (1935), pp. 1096-1126. The Attorney General quotes Kluber, Phillimore, Westlake, and a passage from Sir John Fischer Williams which omits Williams' conclusion that the doctrine of rebus sic stantibus "is not a doctrine that one State may by unilateral declaration rescind or modify its obligations. If it is to be put into force, the proposition that the essential conditions have changed needs either the assent of all parties interested in the obligation or the decision of a tribunal." Cf. this JOURNAL, Vol. 22 (1928), p. 103. Similarly, the Attorney General cites Lauterpacht's 6th edition of Vol. I of Oppenheim's International Law, Sec. 539, and McNair, Law of Treaties (1938) 376, 378. These citations will trap only those who fail to check them. The 6th edition of Vol. I of Oppenheim is not yet available to the writer because it has not been published, but Sec. 539 of the 5th edition of Oppenheim, and McNair, 376 ff., fail to support the burden imposed on them by the Attorney General.

15 15 Loc. cit., p. 78.

16 16 Cf. Lend-Lease Bill, Hearings before the Committee on Foreign Affairs, House of Representatives, 77th Cong., 1st Sess., on H. R. 1776. Testimony of Secretary Hull, pp. 9, 23, 47 (Jan. 15, 1941).

17 17 Josef L. Kunz, "Neutrality and the European War, 1939-1940," 39 Michigan Law Review (1941) 719.

18 18 Cf. remarks of Senator Francis Maloney in presenting the PreUminary Report of the Committee. Cong. Rec., Vol. 87, p. 7579 (Sept. 11, 1941). It should be added that the transportation facilities here referred to are tank-cars.

19 19 Release from Office of Petroleum Coordinator. Cong. Rec, Vol. 87, p. 8412 (Oct. 23, 1941).

20 The President refers in his proclamation of Aug. 9, 1941, to "the partial and imperfect enforcement of the Convention." Bulletin, loc. cil., p. 114.