''Clausula rebus sic stantibus'' (
Latin
Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
for "things thus standing") is the
legal doctrine
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. A doctrine comes about when a judge makes a ruling ...
allowing for a
contract
A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
or a
treaty
A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal pe ...
to become inapplicable because of a fundamental change of circumstances. In
public international law
International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...
the doctrine essentially serves an "escape clause" to the general rule of ''
pacta sunt servanda
''Pacta sunt servanda'', Latin for "agreements must be kept", is a brocard and a fundamental principle of law. According to Hans Wehberg, a professor of international law, "few rules for the ordering of Society have such a deep moral and religi ...
'' (promises must be kept).
Because the doctrine is a risk to the security of treaties, as its scope is relatively unconfined, the conditions in which it may be invoked must be carefully noted.
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
The Vienna Convention on the Law of Treaties (VCLT) is an international agreement regulating treaties between states. Known as the "treaty on treaties", it establishes comprehensive rules, procedures, and guidelines for how treaties are define ...
, under Article 62 (Fundamental Change of Circumstance). Although the doctrine is not mentioned by name,
Article 62 provides the only justifications for its invocation: the circumstances that existed at the time of the conclusion of the treaty were indeed objectively essential to the obligations of treaty (sub-paragraph A), and the instance for 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 circumstances, the doctrine does not apply and the provision remains in effect. ''Clausula rebus sic stantibus'' relates to changed circumstances only if they had never been contemplated by the parties. That 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, the unilateral
denunciation
Denunciation (from Latin ''denuntiare'', "to denounce") is the act of publicly assigning to a person the blame for a perceived wrongdoing, with the hope of bringing attention to it.
Notably, centralized social control in authoritarian states re ...
of a treaty is prohibited. A
party
A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, recreation, or as part of a festival or other commemoration or celebration of a special occasion. A party will often featur ...
does not have the right to denounce a treaty unilaterally. (However, that has been debated.
)
Function in private law
The principle of ''clausula rebus sic stantibus'' exists in all legal systems which descend from Roman law. In Swiss law, article 119 of the
Swiss Code of Obligations is the source of the principle's applicability in Swiss contract law.
History
A key figure in the formulation of ''clausula rebus sic stantibus'' was the Italian jurist
Scipione Gentili
Scipione Gentili ( la, Scipio Gentilis; 1563 – August 7, 1616) was an Italian law professor and a legal writer. One of his six brothers was Alberico Gentili, one of the fathers of international law.
Born at San Ginesio, Scipione Gentili left I ...
(1563–1616), who is generally credited for coining the maxim ''omnis conventio intelligitur rebus sic stantibus'' ('every convention is understood with circumstances as they stand'). The Swiss legal expert
Emer de Vattel
Emer (Emmerich) de Vattel ( 25 April 171428 December 1767) was an international lawyer. He was born in Couvet in the Principality of Neuchâtel (now a canton part of Switzerland but part of Prussia at the time) in 1714 and died in 1767. He was l ...
(1714–1767) 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' and so 'with a change of the condition also the relations originating from the situation would undergo a change'.
During the 19th century,
civil law came to reject the doctrine of ''clausula rebus sic standibus'', but Vattel's thinking continued to influence international law, not least because it helped reconcile 'the antagonism between the static nature of the law and the dynamism of international life'.
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
The Vienna Convention on the Law of Treaties (VCLT) is an international agreement regulating treaties between states. Known as the "treaty on treaties", it establishes comprehensive rules, procedures, and guidelines for how treaties are define ...
established the doctrine firmly but not without dispute as 'a norm of international law'.
Examples
* According to
Polybius, in 211 BC,
Lyciscus of Acarnania argued that the
Lacedaemonians
Sparta (Doric Greek: Σπάρτα, ''Spártā''; Attic Greek: Σπάρτη, ''Spártē'') was a prominent city-state in Laconia, in ancient Greece. In antiquity, the city-state was known as Lacedaemon (, ), while the name Sparta referred ...
should abandon their treaty with the
Aetolian League
The Aetolian (or Aitolian) League ( grc-gre, Κοινὸν τῶν Αἰτωλῶν) was a confederation of tribal communities and cities in ancient Greece centered in Aetolia in central Greece. It was probably established during the early Hellen ...
because of fundamentally changed circumstances. This is perhaps the earliest recorded example of the principle of ''rebus sic stantibus'' at work.
*
Elizabeth I of England
Elizabeth I (7 September 153324 March 1603) was Queen of England and Ireland from 17 November 1558 until her death in 1603. Elizabeth was the last of the five House of Tudor monarchs and is sometimes referred to as the "Virgin Queen".
Eli ...
sought to amend the 1585
Treaty of Nonsuch
The Treaty of Nonsuch was signed on 10 August 1585 by Elizabeth I of England and the Dutch rebels fighting against Spanish rule. It was the first international treaty signed by what would become the Dutch Republic. It was signed at Nonsuch Pala ...
on the grounds of fundamentally changed circumstances, but her efforts have not been well regarded by modern jurists.
* In a 'classic' case for the doctrine,
Russia
Russia (, , ), or the Russian Federation, is a List of transcontinental countries, transcontinental country spanning Eastern Europe and North Asia, Northern Asia. It is the List of countries and dependencies by area, largest country in the ...
attempted to change the terms of the
Treaty of Paris (1856)
The Treaty of Paris of 1856 brought an end to the Crimean War between the Russian Empire and an alliance of the Ottoman Empire, the United Kingdom, the Second French Empire and the Kingdom of Sardinia.
The treaty, signed on 30 March 1856 at ...
on military shipping in the Black Sea. Russia achieved this in connection with the Treaty of London (1871), partly by invoking ''clausula rebus sic stantibus''. One important outcome was the insistence by other parties that unilateral termination of a treaty was not legal on those grounds.
* Article 59 of the
Treaty of Berlin (1878)
The Treaty of Berlin (formally the Treaty between Austria-Hungary, France, Germany, Great Britain and Ireland, Italy, Russia, and the Ottoman Empire for the Settlement of Affairs in the East) was signed on 13 July 1878. In the aftermath of the ...
made
Batumi
Batumi (; ka, ბათუმი ) is the second largest city of Georgia and the capital of the Autonomous Republic of Adjara, located on the coast of the Black Sea in Georgia's southwest. It is situated in a subtropical zone at the foot of t ...
a
free port
Free economic zones (FEZ), free economic territories (FETs) or free zones (FZ) are a class of special economic zone (SEZ) designated by the trade and commerce administrations of various countries. The term is used to designate areas in which co ...
. In 1886, Russia terminated the arrangement, partly on the grounds of a fundamental change in circumstances.
* In 1881, the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
attempted to end the
Clayton–Bulwer Treaty
The Clayton–Bulwer Treaty was a treaty signed in 1850 between the United States and the United Kingdom. The treaty was negotiated by John M. Clayton and Sir Henry Bulwer, amidst growing tensions between the two nations over Central America, a ...
with the
United Kingdom
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
. Various arguments were advanced, including ''clausula rebus sic stantibus''. Although that principle ultimately did not apply in the resolution of the case, it is noteworthy as the first time that the US invoked the principle, as it had previously been opposed to it. The US went on to cite the doctrine again in its arguments for the revision of the
Treaty of London (1915)
The Treaty of London ( it, Trattato di Londra) or the Pact of London () was a secret agreement concluded on 26 April 1915 by the United Kingdom, France, and Russia on the one part, and Italy on the other, in order to entice the latter to enter ...
.
* During the 1908
Bosnian crisis,
Austria-Hungary
Austria-Hungary, often referred to as the Austro-Hungarian Empire,, the Dual Monarchy, or Austria, was a constitutional monarchy and great power in Central Europe between 1867 and 1918. It was formed with the Austro-Hungarian Compromise of ...
renounced its rights and obligations under Article 25 of the
Treaty of Berlin (1878)
The Treaty of Berlin (formally the Treaty between Austria-Hungary, France, Germany, Great Britain and Ireland, Italy, Russia, and the Ottoman Empire for the Settlement of Affairs in the East) was signed on 13 July 1878. In the aftermath of the ...
. 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.
* On 7 February 1923, the
Permanent Court of International Justice
The Permanent Court of International Justice, often called the World Court, existed from 1922 to 1946. It was an international court attached to the League of Nations. Created in 1920 (although the idea of an international court was several cent ...
issued an advisory opinion on a case between
France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
and the United Kingdom on the application to
British nationals
British nationality law prescribes the conditions under which a person is recognised as being a national of the United Kingdom. The six different classes of British nationality each have varying degrees of civil and political rights, due to the ...
of
French nationality decrees issued by the capitulatory regimes in
Tunis
''Tounsi'' french: Tunisois
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and
Morocco
Morocco (),, ) officially the Kingdom of Morocco, is the westernmost country in the Maghreb region of North Africa. It overlooks the Mediterranean Sea to the north and the Atlantic Ocean to the west, and has land borders with Algeria to ...
. France cited a fundamental change of circumstances, and the case 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.
* In 1924,
Norway
Norway, officially the Kingdom of Norway, is a Nordic country in Northern Europe, the mainland territory of which comprises the western and northernmost portion of the Scandinavian Peninsula. The remote Arctic island of Jan Mayen and t ...
dissolved its 1907 treaty with
Sweden
Sweden, formally the Kingdom of Sweden,The United Nations Group of Experts on Geographical Names states that the country's formal name is the Kingdom of SwedenUNGEGN World Geographical Names, Sweden./ref> is a Nordic country located on ...
that had arisen from the
dissolution of the union between Norway and Sweden
The dissolution of the union ( nb, unionsoppløsningen; nn, unionsoppløysinga; Landsmål: ''unionsuppløysingi''; sv, unionsupplösningen) between the kingdoms of Norway and Sweden under the House of Bernadotte, was set in motion by a resolu ...
, citing changed circumstances including the
Russian Revolution, the
Treaty of Versailles
The Treaty of Versailles (french: Traité de Versailles; german: Versailler Vertrag, ) was the most important of the peace treaties of World War I. It ended the state of war between Germany and the Allied Powers. It was signed on 28 June ...
and Norway's entry into the
League of Nations
The League of Nations (french: link=no, Société des Nations ) was the first worldwide intergovernmental organisation whose principal mission was to maintain world peace. It was founded on 10 January 1920 by the Paris Peace Conference that ...
. Since the 1907 treaty was also time-limited, the case has been seen as a precedent for ''rebus sic stantibus'' applying not only to indefinite treaties.
* In 1926, China came to terms with Belgium after its efforts to denounce the Sino-Belgian Pact (1865), citing fundamentally changed circumstances.
* In November 1923, France moved its customs office to
Gex, Ain
Gex (; frp, Gèx; it, Gesio) is a commune in the Ain department in eastern France and a subprefecture of the department.
It lies from the Swiss border and from Geneva. It is a subprefecture of Ain.
History
The town gave its name to the ...
, provoking the 'Freezones Controversy' with Switzerland. The matter was brought before the
Permanent Court of International Justice
The Permanent Court of International Justice, often called the World Court, existed from 1922 to 1946. It was an international court attached to the League of Nations. Created in 1920 (although the idea of an international court was several cent ...
, and France invoked ''rebus sic stantibus'', but 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 it did not reject that ''rebus sic stantibus'' might be a valid basis for France's argument.
Case of the Free Zones of Upper Savoy and the District of Gex
, Permanent Court of International Justice, Parties: France & Switzerland, August 19th, 1929, Initiated March 29th, 1928. It was the second time ''rebus sic stantibus'' had been argued before an international court.
References
External links
Vienna Convention on the Law of Treaties
*Hersch Lauterpacht
Sir Hersch Lauterpacht (16 August 1897 – 8 May 1960) was a British international lawyer, human rights activist, and judge at the International Court of Justice.
Biography
Hersh Lauterpacht was born on 16 August 1897 to a Jewish family in t ...
,
The function of law in the international community
'. Chapter XIII: The Judicial Application of the Doctrine 'Rebus Sic Stantibus'.
{{Authority control
Legal doctrines and principles
Legal rules with Latin names
Treaty law