Unequal Treaties in International Law

Abstract

The “unequal treaties” (known also by the terms “unjust,” “coercive,” “predatory,” “enslaving,” “leonine”) refers fundamentally, but not exclusively, to a historical category of bilateral treaties concluded in the late 19th and early 20th century between European states, the United States of America (USA) or Latin American countries (states that fulfilled the standards of “civilization”), and Asian or African states (perceived as “uncivilized”). Therefore, most of these treaties were signed after military defeat or as a consequence of such a threat and often provoked dissatisfaction, as they were establishing a system of benefits for the “civilized” powers, while restricting the sovereignty of the “uncivilized” and subordinate states. Hence, the “uncivilized” was being put in an unequal position while negotiating, as the “civilized” imposed—because of its economic and military superiority—harsh restrictions and inequitable terms and extorted for special privileges through concession of territorial and sovereign rights, division of spheres of influence, opening of ports, enforcement of extraterritorial jurisdiction, acquisition of railways, mining, etc. That said, the first unequal treaty is the peace treaty between the Qing Empire (China) and the United Kingdom signed in 1842, known as the Treaty of Nanking. It was followed by similar agreements between the United States and Japan (Convention of Kanagawa, 1854), or between Korea and Japan (Treaty of Kanghwa/Ganghwa, 1876). After World War II, all states suffering from unequal treaties tried to revoke the established system but met with varying success. Nevertheless and despite being seen as a historical category, the idea of unequal treaties is believed to have its prolongation to the present. Thus, the idea that lies behind the concept of “unequal treaties” is often related to imbalance between the parties, whether formal or substantive; nonreciprocal rights; and obligations and/or a coercive form of conclusion regardless of it being a military, political, or economic form of coercion. Accordingly, a question arises as to whether any of these forms of inequality affects a treaty qualified as unequal: whether it is valid or null, whether there are grounds for its revision or amendment or causes to declare its termination or suspension. However, applying the current international law—both its conventional (Vienna Convention on the Law of Treaties) and customary sources—there are not enough foundations to affirm the existence of an autonomous category of “unequal treaties” and, above all, that they could possibly have some legal consequences.