Equal or unequal: seeking a new paradigm for the misused theory of 'unequal treaties' in contemporary international law.

AuthorLi, Jiangfeng
  1. INTRODUCTION II. THE QUANDARY OF "EQUAL" OR "UNEQUAL" TREATIES A. Substantive Inequality B. Procedural Inequality C. The Quandary III. THEORETICAL ASSESSMENT OF THE CONCEPT OF UNEQUAL TREATIES A. Pacta Sunt Servanda B. Sovereign Equality C. Rebus Sic Stantibus D. Reciprocity IV. RE-CONSIDER THE THEORY OF "UNEQUAL TREATIES" A. A New Paradigm B. Remaining Puzzles V. CONCLUSION I. INTRODUCTION

    The concept of "unequal treaty" (also labeled as leonine, unjust, inequitable, imposed, forced or coerced treaties in different contexts) (1) was introduced in the context of international law by Hugo Grotius. (2) It was first invoked by China after the First World War to challenge the validity of treaties imposed upon it since the mid-nineteenth century. (3) Following the Second World War, more and more former colonial countries tried to invalidate similar treaties with colonial powers based on the theory of unequal treaties. (4) Such practice attracted much attention on the issue of unequal treaties from the international community and awakened writers in international law during that period. (5) Despite heated debates and plenteous writings on this issue since the nineteenth century, the meaning and scope of the term "unequal treaty" were never clearly delineated.

    In addition, the international community has never reached a consensus on the legitimacy of the theory of unequal treaties under international law. Some scholars have argued that the concept of "unequal treaty" is meaningless (6) and that such theory has never been accepted by international law. (7) Some have even asserted that the problem of unequal treaties no longer exists in contemporary international law. (8) In contrast, other scholars have insisted upon the importance of the theory of unequal treaty for maintaining justice in international affairs (9) and have even strongly promoted the development of the theory in economic settings in the contemporary international legal order. (10) The effort to broaden the formulation of this theory to cover the use of economic force in treaty-making became a major tension in the development of the theory of unequal treaties. (11)

    Similarly, the international community is highly divergent on the consequence of categorizing a treaty as unequal, namely, whether unequal treaties can be invalidated under international law and what can be invoked as grounds for invalidity. (12) Also, although various arguments invoking unequal treaties were based on the theory of equality of sovereignty, the term "unequal" or the concept of "equality" or "inequality" was interpreted with great divergence. (13)

    The ambiguity of the theory of unequal treaties has caused confusion when a problem occurs involving the issue of unequal treaties. Also, due to the lack of clarity and precision, international legal writers have used the term of unequal treaties incoherently and inconsistently. In the early days, the term was used mostly to refer to the nineteenth-century treaties between the western colonial power and weaker states. (14) However, in the modern era of the twentieth and twenty-first centuries, some scholars began expanding the scope of unequal treaties and using the term to challenge the legality of some modern trade treaties, (15) investment treaties, (16) or other important international conventions. (17) Such expansion added more uncertainty and contradiction in the area of international treaty law.

    This paper, therefore, calls into question the ambiguity and misapplication of the theory of unequal treaties. By revisiting the concept of unequal treaties, the paper aims to shed light on the ambiguity and uncertainty caused by the existing interpretations of the theory of unequal treaties. It attempts to carefully analyze related legal theories, to examine the concept of unequal treaty, and to provide clearer answers to puzzles relating to unequal treaties. For example, what treaties are unequal? What elements can be considered as "unequal?" What are the boundaries of unequal treaties? Whether unequal treaties can be invalidated under international law, and, if so, what are the bases for invalidating unequal treaties? What are the implications of unequal treaties in modern international law?

    To achieve this goal, Part I begins by assessing the nature of "inequality" in the context of treaties and proposes a division of such treaties into substantive inequality and procedural inequality. Part II then evaluates the weight of substantive inequality and procedural inequality under the theoretical framework of international treaty law, including the principles of pacta sunt servanda, sovereign equality, rebus sic stantibus, and reciprocity. Based on such theoretical assessment, Part III attempts to classify unequal treaties into two major categories: treaties with substantive inequality and treaties with procedural inequality. In order to balance the need to preserve the sanctity of treaties and the demand for equality, this paper suggests that, under the general framework of the Vienna Convention on the Law of Treaties (VCLT), the validity of treaties with substantive and/or procedural inequality could be challenged only in very limited and exceptional situations.

  2. THE QUANDARY OF "EQUAL" OR "UNEQUAL" TREATIES

    As discussed above, the term "unequal treaty" was used inconsistently in state practice and scholarly writings. This situation could be attributed to ambiguity of the term itself. The uncertainty associated with the use of the term "unequal treaty" added difficulties to understanding the theory of unequal treaties. In order to promote clarity and consistency in international law, it is necessary to clarify the underlying meaning of the term and to delineate more clearly the scope of unequal treaties.

    Unequal treaties have different origins. Some of them resulted from war. For example, most unequal treaties in China --such as the Treaty of Nanking (1842) and the Treaty of Tientsin (1858), which were models for other unequal treaties in China --came about when China was defeated militarily by western powers. (18) Other unequal treaties had nothing to do with wars or the pressure of defeat. For example, the unequal treaties for Japan between 1854 and 190519 and for Siam (20) did not concern the issue of war with western powers because neither county declared war against any western state before the Russo-Japanese conflict of 1904. (21)

    In addition, the word "unequal" or "inequality" could denote different meanings. It could refer to both substantive inequality and procedural inequality embedded in a treaty. (22) Substantive inequality, on one hand, could refer to the imbalance of the substantive rights or obligations conferred on the parties. (23) Substantive inequality could be inferred from the provisions of the treaties themselves and by analyzing whether the benefits exchanged between the two parties are balanced. The assessment of inequality caused by such imbalance need not look into the actual bargaining power or the underlying factors causing such imbalance.

    On the other hand, procedural inequality could refer to inequality in the treaty decision-making process. (24) In this sense, inequality could result from the use of coercion or other pressure during the contracting process: the coerced party being forced to enter into a treaty because of outside pressure. Such decision-making mode undermines the true intent of the party and the fairness of the bargaining process. Also, in this situation, the treaty-making parties generally have unequal bargaining power, and it is more likely for the weaker state to accept unfavorable terms in exchange for benefits from the powerful state.

    When revisiting the writings concerning unequal treaties, it could be noted that the debate over the theory of unequal treaties may reflect different perceptions of the meaning of equality or inequality. Generally speaking, earlier discussions of unequal treaties by classic international scholars focused mainly on substantive inequality of treaties but comingled some of the elements of procedural inequality by considering the effect of the use of force in treaty-making process.

    Since the twentieth century, the focus tended to shift to procedural inequality by assessing the validity of treaties that resulted from coercion by the threat or use of force. In existing international law, procedural inequality has been addressed by the VCLT, but substantive inequality remains unaddressed. Ambiguity in how substantive inequality is treated under international law is the main cause of the uncertainty as to the use of the theory of unequal treaties generally.

    1. Substantive Inequality

      When the term "unequal treaty" was first introduced in the international context by Grotius, and then expounded by scholars in seventeenth and eighteenth centuries, it mainly implicated unequal obligations in treaties. Grotius differentiated "equal" and "unequal" treaties based on balancing the advantages obtained by contracting parties. (25) When the obligations and advantages for both parties are equal, treaties are equal; otherwise, they are unequal. (26) Under Grotius's theory, a treaty could be unequal as to both the superior and the inferior powers; he called it an unequal treaty when a superior party promised to provide assistance to an inferior party without gaining any benefit in return. (27)

      Other earlier international law scholars, such as Christian von Wolff, Samuel Pufendorf, and Emmerich de Vattel, adopted a similar approach when they defined unequal treaties. According to Wolff, "treaties are unequal in which the same things or equivalents are not promised by each of the contracting parties." (28) And in a similar sense, Pufendorf stated, "Treaties are unequal when the things promised by the two parties are unequal, or when either party is made inferior to the other." (29) Vattel also featured unequal treaties as "those in which the allies do not...

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