can be carried in foreign trade and fewer tankers will have to be diverted from the domestic trade. The International Load Line Convention (47 Stat. pt. 2, pp. 2228 et seq.) was signed in London July 5, 1930; ratification was advised by the Senate February 27, 1931; the convention was ratified by the President May 1, 1931; ratification of the United States was deposited at London June 10, 1931; and the convention was proclaimed January 5, 1933. The convention was ratified or acceded to prior to September 1, 1935, by 36 governments. The convention in considerable detail provides for the limits to which vessels of various categories may be loaded when engaged in international voyages. In annexes which are part of the convention appear elaborate and detailed regulations for determining maximum load lines. Article 19 of the Convention requires the contracting parties to exchange laws, regulations, decisions and reports through the British Government as intermediary; and article 20 provides that modifications may be proposed at any time by any contracting government to the British Government, such proposals to be communicated by the latter to all the other contracting governments, and, if accepted by all, that the convention shall be modified accordingly. It is clear from its general nature that the convention was a peacetime agreement. As stated in its preamble the contracting governments entered into it "to promote safety of life and property at sea by establishing in common agreement uniform principles and rules with regard to the limits to which ships on international voyages may be loaded" (47 Stat. 2228). This general purpose, as the terms of the convention demonstrate, was to be achived by limiting international competition in the loading of cargo vessels. That peacetime commerce and voyages were assumed as the basis of the convention is also demonstrated by the nature of its detailed provisions and regulations. A perusal of them leaves no doubt that peacetime commerce was a basic assumption of the treaty. The present situation with respect to shipping is a wholly different one. Conditions essential to the operation of the convention, and assumed as a basis for it, are in almost complete abeyance. Of the 36 governments which acceded to or ratified the convention prior to September 1, 1935, ten (Germany, Great Britain, Canada, China, Finland, India, Italy, Japan, New Zealand and the Soviet Union) are at war. Sixteen of the said 36 governments are under military occupation. Others, of which may be mentioned the Irish Free State, Portugal and Sweden, may be said to be striving with varying success to preserve a precarious neutrality in the widespread armed conflict now prevalent. International shipping is not being carried on under normal conditions subject to agreements arrived at for the purpose of regulating international voyages freely undertaken and completed. On the contrary, the actual destruction of vessels engaged in such commerce, however loaded, is one of the principal means by which the war is now being conducted among various of the contracting parties. Restraints imposed by the convention with respect to load lines are of small moment indeed in a war directed in large part toward the utter destruction of all shipping except that which is tolerated by self-interest. The German Government, which is a party to the convention, has not only invaded and conquered many governments that are likewise parties to the convention and removed their shipping from normal participation in international commerce, but carries on its own international shipping primarily in waters subject solely to its own military control. It is well known that the international sea lanes are the rendezvous for varied instrumentalities of war set loose for the destruction of shipping. It is equally well known that a serious shortage exists in shipping in the case of numerous, if not all, signatories to the convention, including those whose defense the Congress has declared essential to the defense of the United States. The shortage referred to by the Secretary of the Interior, Petroleum Coordinator, is due to the conditions briefly referred to above. In short the implicit assumption of normal peacetime international trade, which is at the foundation of the Load Line Convention, no longer exists. Under these circumstances there is no doubt in my mind that the convention has ceased to be binding upon the United States. 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. The principle is discussed at length in 29 Am. Jour. Int. L. Supp. 1097 (1935); see also, McNair, Law of Treaties, 376, 378 (1938); 1 Oppenheim, Int. L. (Lauterpacht's 5th ed.) sec. 539. The following statements of the principle are examples: 66* * * The validity of treaties ends 'at the time of the essential change of such and such circumstance whose existence was supposed necessary by the two parties (clausula rebus sic stantibus), whether this condition was stipulated expressly or that it results from the very nature of the treaty." Kluber, 29 Am. Jour. Int. L. Supp., 1098; "When that state of things which was essential to, and the moving cause of the promise or engagement, has undergone a material change, or has ceased, the foundation of the promise or engagement is gone, and their obligation has ceased. This proposition rests upon the principle that the condition of rebus sic stantibus is tacitly annexed to every covenant." Phillimore, ibid. 1099; "Almost all theorists agree that to many treaties the tacit condition rebus sic stantibus is attached; they were concluded in and by reason of special circumstances, and when those circumstances disappear, there arises a right to have them rescinded * * *. But the question only arises when there is a difference as to what conditions were implied, or were contemplated, not as existent or possible, but as essential." Westlake, ibid. 1099; "The doctrine that we set out to consider is the doctrine that treaties, for the duration of whose obligations no special period is fixed, are not to be understood as binding on the contracting Powers in the event of some material change in the conditions, with reference to which they were concluded, the word 'conditions' in this statement including not only material, but also moral, facts. For the purpose of the discussion, the phrase 'rebus sic stantibus' is a convenient catchword: treaty obligations, when the treaty itself is silent, are subject to the provision that, if the obligations are to remain, the essential 'things,' inanimate and animate, material, moral and mental, must remain in the condition in which they were when the treaty was concluded." Williams, ibid. 1099. It is sometimes said that the change which brings the principle into operation must be essential or fundamental. But whether or not this is an integral part of the principle itself there can be no doubt that the changed conditions affecting the Load Line Convention are most essential and most fundamental. As to procedure to be adopted by the Government that relies on the principle of rebus sic stantibus, it may well be that ordinarily the procedure would call for the Government to inform the other parties to the treaty with respect to the matter and request agreement for termination or suspension of the treaty. The matter of procedure, however, does not affect the right of termination or suspension. Since a number of the contracting states have been overrun by military power, and normal international procedures, so far as here pertinent, are no longer available but are submerged in the swiftly changing conditions inherent in the world situation, the procedure by prior notification and consent preferred by some of the authorities need not be followed, though of course it may be pursued if desired in relation to those governments with respect to which it is still feasible. The fundamental character of the change in conditions underlying the treaty, however, leaves the Government of the United States entirely free to declare the treaty inoperative or to suspend it for the duration of the present emergency. The convention may be declared inoperative or suspended by the President. A declaration by the President to that effect would validly render the convention inoperative or suspended, as the case may be. Attention to the observance of treaties is an executive responsibility. Jefferson to Genet, 4 Moore, Digest Int. L. 680-681 (1906). It is not proposed that the United States denounce the convention under article 25 (47 Stat. 2256), nor that it be otherwise abrogated. Consequently action by the Senate or by the Congress is not required. Cf. 1 Stat. 578; 5 Moore, Digest Int. L. 356. The facts which bring into operation the right to declare the convention inoperative or suspended, are within the knowledge of and can be promptly and adequately appraised by the executive department; and it is proper that the President, as "the sole organ of the nation in its external relations," should speak for the nation in announcing action which international law clearly permits. See United States v. Curtiss-Wright Export Corporation (1936), 299 U. S. 304, 319, 320. See also Charlton v. Kelly (1913), 229 U. S. 447, 472-476. There is no question here of the making or even of the abrogation of a treaty. It is merely a question of a declaration of the inoperativeness of a treaty which is no longer binding because the conditions essential to its continued effectiveness no longer pertain. Accordingly, it is my opinion that the convention referred to may be declared by you to be either inoperative or suspended; and that upon such declaration it would become inoperative or suspended as the case may be, leaving the Secretary of Commerce free to set load lines pursuant to the act of March 2, 1929, c. 508 (45 Stat. 1492), as amended by act of May 26, 1939, c. 151 (53 Stat. 783), without regard to the convention. I have not discussed, because unnecessary in view of the conclusion reached as set forth above, the well established international practice that violation of a treaty by one contracting party renders the treaty voidable at the option of another contracting party injured by the violation. See Comment on Draft Convention on the Law of Treaties; Art. 27, 29 Am. Jour. Int. L. Supp. 1077 et seq. (1935); McNair, Law of Treaties, 513 (1938). Respectfully, FRANCIS BIDDLE, COMPUTATION OF SERVICE UNDER CIVIL SERVICE When computing the years of service of a postmaster for purposes of the Civil Service Retirement Act a period of service as a Member of the Congress should be included. THE PRESIDENT. AUGUST 6, 1941. MY DEAR MR. PRESIDENT: I have the honor to refer to your memorandum of July 2, 1941, requesting my opinion upon a question presented by the Civil Service Commission concerning the application of the Civil Service Retirement Act of May 29, 1930, c. 349, 46 Stat. 468, as amended, to Mr. Peter F. Tague, postmaster at Boston, Mass. |