Grounds of Cancellation.
§ 545. A treaty, although it has neither expired, nor been dissolved, nor become void, may nevertheless lose its binding force by cancellation. The causes of cancellation are four—namely, inconsistency with International Law created subsequent to the conclusion of the treaty, violation by one of the contracting parties, subsequent change of status of one of them, and war.
Inconsistency with subsequent International Law.
§ 546. Just as treaties have no binding force when concluded with reference to an illegal object, so they lose their binding force when through a progressive development of International Law they become inconsistent with the latter. Through the abolition of privateering among the signatory Powers of the Declaration of Paris of 1856, for example, all treaties between any of these Powers based on privateering as a recognised institution of International Law were ipso facto cancelled.[908] But it must be emphasised that subsequent Municipal Law can certainly have no such influence upon existing treaties. On occasions, indeed, subsequent Municipal Law creates for a State a conflict between its treaty obligations and such law. In such case this State must endeavour to obtain a release by the other contracting party from these obligations.[909]
[908] This must be maintained in spite of the fact that Protocol No. 24—see Martens, N.R.G. XV. (1857), pp. 768-769—contains the following: "Sur une observation faite par M.M. les Plénipotentiaires de la Russie, le Congrès reconnaît que la présente résolution, ne pouvant avoir d'effet retroactif, ne saurait invalider les Conventions antérieures." This expression of opinion can only mean that previous treaties with such States as were not and would not become parties to the Declaration of Paris are not ipso facto cancelled by the Declaration.
[909] That Municipal Courts must apply the subsequent Municipal Law although it conflicts with previous treaty obligations, there is no doubt, as has been pointed out above, § [21]. See The Cherokee Tobacco, 11 Wall 616; Whitney v. Robertson, 124 United States 190; Botiller v. Dominguez, 130 United States 238. See also Moore, V. § 774.
Violation by one of the Contracting Parties.
§ 547. Violation of a treaty by one of the contracting States does not ipso facto cancel such treaty, but it is in the discretion of the other party to cancel it on the ground of violation. There is no unanimity among writers on International Law in regard to this point, in so far as a minority makes a distinction between essential and non-essential stipulations of the treaty, and maintains that violation of essential stipulations only creates a right for the other party to cancel the treaty. But the majority of writers rightly oppose this distinction, maintaining that it is not always possible to distinguish essential from non-essential stipulations, that the binding force of a treaty protects non-essential stipulations as well as essential ones, and that it is for the faithful party to consider for itself whether violation of a treaty, even in its least essential parts, justifies the cancelling of the treaty. The case, however, is different when a treaty expressly stipulates that it should not be considered broken by violation of merely one or another part of it. And it must be emphasised that the right to cancel the treaty on the ground of its violation must be exercised within a reasonable time after the violation has become known. If the Power possessing such right does not exercise it in due time, it must be taken for granted that such right has been waived. A mere protest, such as the protest of England in 1886 when Russia withdrew from article 59 of the Treaty of Berlin of 1878, which stipulated the freedom of the port of Batoum, neither constitutes a cancellation nor reserves the right of cancellation.
Subsequent Change of Status of one of the Contracting Parties.
§ 548. A cause which ipso facto cancels treaties is such subsequent change of status of one of the contracting States as transforms it into a dependency of another State. As everything depends upon the merits of each case, no general rule can be laid down as regards the question when such change of status must be considered to have taken place, or, further, as regards the other question as to the kind of treaties cancelled by such change.[910] Thus, for example, when a State becomes a member of a Federal State, it is obvious that all its treaties of alliance are ipso facto cancelled, for in a Federal State the power of making war rests with the Federal State, and not with the several members. And the same is valid as regards a hitherto full-Sovereign State which comes under the suzerainty of another State. On the other hand, a good many treaties retain their binding force in spite of such a change in the status of a State, all such treaties, namely, as concern matters in regard to which the State has not lost its sovereignty through the change. For instance, if the constitution of a Federal State stipulates that the matter of extradition remains fully in the competence of the member-States, all treaties of extradition of members concluded with third States previous to their becoming members of the Federal State retain their binding force.