840.811/8–1748: Telegram
The Ambassador in Yugoslavia (Cannon) to the Secretary of State
Deldu78. From Dustmann for Michael McDermott and Dunning. Statement by Radius supporting French amendment to delete supplementary protocol from Soviet Draft Convention1 at night session General Committee Danube Conference August 17. US Delegation wholeheartedly supports French proposal deletion supplementary protocol from Soviet draft convention. I should like make some comments, few observations regarding one aspect that protocol.
It been said many times on floor this conference that Danube Convention 1921 dead. Soviet Delegation particularly has tried show 1921 Convention no longer in effect. US Delegation finds nothing convincing in any of Soviet Delegation’s arguments this point.
First, there is argument that act of signature by UK, France, Rumania of agreement signed August 18, 1938 and signature by France, Germany, UK, Rumania of agreement signed Bucharest March 1, 1939 regarding European Commission of Danube terminated 1921 Convention. This argument based upon grounds two-thirds of states’ signatories that convention not consulted. Reference made this connection to Article 42 of 1921 Convention.
Fact that few states may have been omitted in formulation of 1938–1939 agreements did not render 1921 Agreement void. At worst most effect such action could have had was render 1921 Convention voidable. I quote this connection following statement from McNair’s Law of Treaties (1938 P 515)2 in which it stated in connection with right to [Page 714] consider a treaty terminated as result of its violation that: “(A) … in general terms, such right exists; (B) that exercise this right is optional at discretion of party wronged”.
Since signatory states 1921 Convention did not take position that that convention was terminated by signators 1938–1939 agreements, signature those agreements has not affected validity 1921 Convention. By what right can Soviet Union which never party to 1921 Convention, insist any alleged violation terminated Convention?
Second, doctrine of rebus sic stantibus also been advanced as argument that 1921 Convention no longer in force. What are changed conditions which would justify application that doctrine? Mere fact CFM recognized need for new Danube Convention and treaties peace Bulgaria, Hungary, Rumania contain provisions guaranteeing freedom navigation on Danube cannot justly be considered as rendering 1921 Convention null void. CFM decision was in no wise inconsistent with purposes 1921 Convention nor are provisions treaties peace inconsistent that convention.
What changes have occurred in Danube which would justify application of rebus sic stantibus doctrine? How can any of political changes which taken place justify application that principle to instrument like Danube Convention 1921?
I quote from Garner’s International Law and World War Volume II page 2183 where there discussion that doctrine:
“The clause rebus sic stantibus should only be resorted to in very exceptional circumstances. All are agreed that a change of government or even in the form of government does not, in general, affect the obligation of treaties. As there is great danger in the abuse of this principle, it should be emphasized that the principle rebus sic stantibus ‘implies a complete change in the state of things which was the basis of the treaty and one of its tacit conditions. The change of circumstances must be such as either to render the execution of the treaty difficult or impossible or to entail the performance of obligations which were not foreseen by the contracting parties and which, had they been foreseen, would never have been assumed.’”
It been asserted that Convention 1921 terminated by war. In connection with effects of war on treaties I refer to statements made in Hackworth’s Digest International Law which frequently quoted this conference as authority. I quote from page 297 Volume 5:4
“The effect of war on treaties has greatly perplexed the courts and administrative authorities as well as eminent writers. The law on this [Page 715] subject is by no means settled. The authorities, as well as the practice of nations, present a great contrariety of views. The law on the subject is still in the making. As to executed provisions of treaties, such as those relating to boundaries and vested rights, no difficulty is presented. They are generally regarded as unaffected by war. As to the executory provisions, however, much depends upon their intrinsic character. The view has been taken that certain classes of bilateral treaty provisions, not expressly applicable to a state of warfare ipso facto terminated by war; that other classes are suspended during war; and that still others, though not expressly made with a view to conditions of war, may operate during war. No well-defined line of demarcation between the different categories may be said to have unanimous sanction. Much of the confusion with respect to pre-war treaties which might otherwise have resulted from the World War of 1914–18 was avoided by the treaties of peace. For example, the Treaty of Versailles provided in article 289 that the Allied and Associated Powers should notify Germany within six months from the date of the coming into force of the treaty of those bilateral treaties or conventions with Germany which they desired ‘to revive’ and that ‘all the others are and shall remain abrogated.’”
Supplementary protocol to Soviet draft assumes 1921 Convention still has validity. First paragraph protocol provides:
[For the text of this paragraph, see footnote 1, page 713.]
If 1921 Convention is dead as Soviet delegation [delegate] insists it is why does his delegation consider it necessary mention it at all. Once any convention dead, there no further need take any measures dispose it. Obviously Soviet delegation not convinced 1921 Convention dead.
US delegation believes 1921 Convention continues in fact to be valid instrument. Accordingly, it follows that states parties to 1921 Convention entitled to all rights provided that convention until they agreed otherwise or until competent tribunal has adjudicated any differences which may exist with respect to rights. USDel has particularly in mind position Belgium, Greece, Italy who not represented this conference but who have requested this conference respect their rights.5 [Dustmann.]
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The supplementary protocol in the Soviet draft convention read:
↩“It is stated that the regime of navigation on the Danube applied formerly as well as the acts providing for the establishment of that regime, in particular the Convention of 1921, are null and void.
All property owned by the European Commission of the Danube shall be transferred to the Administration of the lower part of the Danube.
Agreement has been reached that all obligations of the European Commission of the Danube regarding the payment of credits granted to it by Great Britain, France, Russia and other states shall be recognized as cancelled.
The obligations of the former International Commission of the Danube as well as the obligations of the former Administration of the Iron Gates and Cataracts and the guarantees for securing these obligations shall be recognized as cancelled.
The property of the former International Commission of the Danube which has not been liquidated shall be transferred to the Danube Commission provided for in Article 5 of the present Convention. The part of the property of the International Commission of the Danube transferred to the former Administration of the Iron Gates and Cataracts and all the property of the former administration of the Iron Gates and Cataracts shall be transferred to the Administration of the Iron Gates and Cataracts established in accordance with Article 18 of the present Convention.”
- Arnold Duncan McNair, The Law of Treaties: British Practice and Opinions (Oxford, Clarendon Press, 1938), p. 515.↩
- James Wilford Garner, International Law and the World War (New York, Longmans, Green, 1920), vol. ii, p. 218.↩
- Green H. Hackworth, Digest of International Law (Washington, Government Printing Office, 1940–1944), vol. v, p. 297.↩
- The Soviet draft convention article XLII was adopted by the conference on August 17, 1948, by a vote of 7 to 2, with France abstaining, after the American and French amendment proposals had both been defeated by a vote of 7 to 3. The vote was 7 to 2 in favor of acceptance of the Soviet draft supplementary protocol. All was accomplished in time so that Ambassador Cannon reported in telegram Deldu 79 from Belgrade on August 17, midnight, that the final draft of the convention had been completed by the Drafting Committee and it would be distributed that night. He expected that August 18 would be the last day of the conference.↩