Promises of States under International Law 9781472565815, 9781849462327

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Foreword by Christian Tomuschat The principle of sovereignty cannot be equated with freedom from any legal constraints. Precisely because of their sovereign powers, states are capable of binding themselves by assuming international obligations. What the Permanent Court of International Justice said in its very first judgment in the Wimbledon case,1 applies not only to international treaties, but also to specific unilateral acts. The author of the present book is not the first one to discover this ground rule of contemporary international law, but he is indeed the first lawyer to explain its raison d’être in a fully persuasive fashion. When the International Court of Justice in 1974 declared the proceedings in the Nuclear Tests cases moot,2 thereby relying on statements of a number of high-ranking French governmental office holders that atmospheric nuclear tests in the Pacific Ocean would not be continued, the legally binding force of unilateral declarations was far from unequivocally established. Indeed, unilateral acts do not appear in the list of legal sources referred to in Article 38 of the ICJ Statute. Here and there, hints had surfaced in international jurisprudence that a state was bound to honour promises it had made vis-à-vis another state. But no cohesive doctrine had evolved from those bits and pieces. But the legal position remained opaque. Why should such a promise, made without a quid pro quo, produce a true legal obligation? Was it not extremely dangerous to hold a state accountable for purely verbal declarations lacking any formality? Could not states be trapped, particularly in cases where they attempted to show generosity towards their partners, but strictly on a political plane? Indeed, international relations are rife with unilateral acts. On a daily basis, governments have to explain their choices not only before their own peoples, but also before their foreign partners and before the international community. It is obvious that openness should not lead to legal imprisonment. The basic fact is that states are sovereign entities and that any obligations, to the extent that they do not flow from general international law, must be accepted by them. Their will must not be misinterpreted. The international legal order would be threatened in its entirety if, on a regular basis, states had to defend themselves against unintended interpretations of their acts and utterances.   Series A 1, 17 August 1923.   Nuclear Tests (Australia v France) [1974] ICJ Rep 253, 272; Nuclear Tests (New Zealand v France) [1974] ICJ Rep 457, 478. 1 2

vi  Foreword After it had terminated its main pieces of codification on the law of treaties and on state responsibility, it was tempting for the ILC to put the topic ‘Unilateral Acts of States’ on its agenda in order to clarify the many questions which the judgments of the ICJ in the Nuclear Tests cases had left open. Many thought that the new topic could be addressed in parallel to the law of treaties: the basic axiom, the proposition ‘pacta sunt servanda’, could simply be converted into ‘declaratio est servanda’. In the course of the work of the ILC from 1996 to 2006, it turned out, however, that the problematique was more complex than originally presumed. In particular, the ILC and its rapporteur, Víctor Rodríguez Cedeño from Venezuela, realised that unilateral acts comprised a panoply of different forms of conduct each of which had its specific features. For instance, protests, on the one side, and acts of recognition, on the other, may have as common characteristic their origin as unilateral acts. Nonetheless, their function is so widely different that it would be hardly possible to conceive of a common legal regime for them. Accordingly, the topic was subsequently restricted. The final outcome was in 2006 a short elaboration on ‘Guiding Principles applicable to Unilateral Declarations of States Capable of Creating Legal Obligations ’. The 10 legal principles encompassed in that statement are far from addressing all of the legal issues that require to be answered in respect of unilateral declarations. In general, they refrain from laying down clearcut propositions. The reluctance to provide more than tentative answers is manifested already in the first Principle which states that declarations manifesting the will to be bound ‘may’ have the effect of creating legal obligations. As far as the crucial problem of revocation is concerned, the Guiding Principles confine themselves to setting forth that unilateral declarations may not be revoked ‘arbitrarily’ (Guiding Principle 10). On the whole, the reader cannot but feel that the legitimate needs of legal practice have not been fully satisfied. It may well be that at the present stage of legal development no better responses could be given. The codification process conducted by the ILC needs firm support from the solutions found in the actual transactions among nations. Hence, the outcome of the work of the ILC amounted to a call to continue the search for the appropriate legal regime of unilateral acts. The author of these lines wrote a short contribution as a first assessment of the Guiding Principles.3 Additionally, he encouraged Christian Eckart to proceed to a more deep-going study of the topic. The final result of this endeavour, the present book, has succeeded in clarifying the systemic foundations of the legal configuration of unilateral promises. Indeed, quite rightly, the author concluded that he should confine 3   ‘Unilateral Acts under International Law’ in Droits et culture. Mélanges en l’honneur du Doyen Yadh Ben Achour (Tunis, Centre de Publication Universitaire, 2008) 1487–507.



Foreword vii

his study to that specific sector instead of trying to embrace the field of unilateral acts in its entirety. The great achievement of the book is that it has been able to demonstrate the usefulness and legitimacy of the concept of promise in international law. International treaties have a much more precise profile. Long-standing experiences determine their scope and meaning. Unilateral promises, on the other hand, have the great advantage of allowing for more flexibility. States do not succumb to the rigidity which a treaty normally engenders by force of the proposition pacta sunt servanda. Yet, promises given with the intention to specify the direction of future conduct are able to create a considerable degree of legitimate confidence with their addressees. Thus, they are intimately connected to the principle of good faith, one of the fundamental axioms included in the Friendly Relations Declaration of the UN General Assembly of 19704 (Principle 7). Necessarily, therefore, promises cannot be revoked on the spur of the moment, abruptly and without any valid reasons. Following the precedent of Article 56(2) of the Vienna Convention on the Law of Treaties, and the judgment of the International Court of Justice in the Nicaragua case,5 the author suggests that generally states should have the right to revoke a promise made by them on the basis of 12 months’ notice. This is a compromise solution which, on the one hand, confirms the legal bindingness of unilateral promises but wisely avoids any kind of dogmatic rigidity. The book contains a full discussion of all the issues which unilateral promises can raise in diplomatic practice. It may thus incite the ILC to take up the topic again, which in 2006 was brought to a rapid end because the ILC felt that it had not managed to analyse all of its implications in a sufficiently thorough fashion. In sum, the book may be called an outstanding complement to the existing legal literature on a key issue of contemporary international law. It will be indispensable reading for any lawyer interested in the concept of unilateral promises in international law.

  GA Resolution 2625 (XXV), 24 October 1970.   Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) [1984] ICJ Rep 392, 420, para 63. 4 5

Acknowledgements I would like to thank the Deutsche Forschungsgemeinschaft (DFG) and the Research Training Group on Multilevel Constitutionalism at the Humboldt University, Berlin for the fellowship which provided me with the financial means and necessary time to write this book. The Research Training Group’s first generation in the form of its founders, organisers, guests and especially its members deserve an additional thank you for their intellectual input, as well as for what turned out to be great company during this otherwise solitary time of research and writing. I would like to express my gratitude to Professor Christian Tomuschat for having pointed me towards the International Law Commission’s struggle with Unilateral Acts of States and thereby also the topic of this book, as well as for his continuing intellectual support and encouragement. I finally wish to thank my family, especially my mother Ann, on whom I could always rely to discuss subtle nuances in the English language, as well as my wife Maria and daughter Emilia, whose zero tolerance for ‘glassy eyes’ after work kept me firmly grounded in everyday life.

Abbreviations DRC ECHR ECtHR ICJ ILC ILO IMT NPT OAS OAU PCIJ UNCLOS WTO

Democratic Republic of the Congo European Convention on Human Rights European Court of Human Rights International Court of Justice International Law Commission International Labour Organization International Military Tribunal Non-Proliferation Treaty Organization of American States Organisation of African Unity Permanent Court of International Justice UN Convention on the Law of the Sea World Trade Organization

Table of Cases (sorted chronologically by date of decision): ICJ, Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Order of 28 May 2009................................. 173 ——, Case concerning the application of the convention on the prevention and punishment of the crime of genocide (Croatia v Serbia), Preliminary Objections, Judgment of 18 November 2008................................................... 82 ——, Application of the convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v Serbia & Montenegro), Merits, Judgment of 26 February 2007........................................................................ 12 ——, Armed Activities on the Territory of the Congo case (Democratic Republic of the Congo v Rwanda), New application: 2002, Jurisdiction and Admissibility, Judgment of 3 February 2006........................... 25, 170, 186 ——, LaGrand (Germany v United States of America), Judgment of 27 June 2001, ICJ Reports 2001, 466.................................................... 166–8, 173, 225 ——, Fisheries Jurisdiction Case (Spain v Canada), Jurisdiction, Judgment of 4 December 1998, ICJ Reports 1998, 432................................ 58, 71, 215, 223 ——, Land and Maritime Boundary case between Cameroon and Nigeria, (Cameroon v Nigeria: Equatorial Guinea intervening), Preliminary Objections, Judgment of 11 June 1998, ICJ Reports 1998, 275..... 72, 281, 288 ——, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion of 8 July 1996), ICJ Reports 1996, 226........................................................ 165 ——, Case concerning the Land, Island and Maritime Frontier Dispute (El Salvadore v Honduras), Application by Nicaragua to Intervene, Judgment of 13 September 1990, ICJ Reports 1990, 92........................................ 281, 284 ——, Border and Transborder Armed Action case (Nicaragua v Honduras), Jurisdiction and Admissibility, Judgment of 20 December 1988, ICJ Reports 1988, 69........................................................................................... 179 ——, Case concerning the Frontier Dispute (Burkina Faso v Mali), Judgment of 22 December 1986, ICJ Reports 1986, 554................. 12, 156–60, 189, 209, 213–14, 222–4, 248–9, 288 Arbitration Tribunal Filleting within the Gulf of St Lawrence between Canada and France, Award of 17 July 1986, Reports of International Arbitral Awards 1986, 225.................................................................. 155, 225 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgment of 27 June 1986, Merits, ICJ Reports 1986, 14...............................................vii, 71–3, 151–5, 160, 165, 189, 212, 248, 256, 261, 272, 288

xviii  Table of Cases ——, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Dissenting Opinion Judge Schwebel, ICJ Reports 1986, 259....................................................... 155 German Federal Constitutional Court (BVerfG), Cruise Missiles Deployment (German Approval) Case, Judgment of 18 December 1984, ILR 1984, p. 365 (=BVerfGE 68, 1)......................................................... 148–9 ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine Area, (Canada v USA), Judgment of 12 October 1984, ICJ Reports 1984, p. 246....................................................................................................... 22, 280 ——, Military and Paramilitary Activities in and against Nicaragua case (Nicaragua v United States), Jurisdiction and Admissibility, Judgment of 26 November 1984, ICJ Reports 1984, 392.................... 70, 261, 268, 271, 281 ——, Aegean Sea Continental Shelf case (Greece v Turkey), Judgment of 19 December 1978, ICJ Reports 1978, 3...................................................... 223 ECHR, Case of The Republic of Ireland v The United Kingdom, (Application no 5310/71), Judgment of 18 January 1978, Series A, No 25, 175.......... 141–2 ——, Case of The Republic of Ireland v. The United Kingdom, Series B: Pleadings, Oral Arguments and Documents 1980............................. 142–3 ——, Case of Ireland against the United Kingdom, Series B: Pleadings, Oral Arguments and Documents 1981..................................................... 143 ICJ Nuclear Tests case, (Australia v France), Judgment of 20 December 1974, ICJ Reports 1974, 253....................................v, 12, 25, 69, 117–18, 120, 122, 130, 178–9, 186, 188, 203, 208–9, 212, 218, 220, 224–5, 239, 249, 284–5 ——, Nuclear Tests case, (Australia v France), Separate Opinion of Judge Forster ICJ Reports 1974, 275...................................................................... 132 ——, Nuclear Tests case, (Australia v France), Separate Opinion of Judge Ignacio-Pinto, ICJ Reports 1974, 308.......................................................... 133 ——, Nuclear Tests case, (Australia v France), Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock, ICJ Reports 1974, 312.............................................................. 133–4 ——, Nuclear Tests case, (Australia v France), Dissenting Opinion of Judge De Castro, ICJ Reports 1974, 372........................................................ 118, 134 ——, Nuclear Tests case, (Australia v France), Dissenting Opinion of Judge Sir Garfield Barwick, ICJ Reports 1974, 391............................................... 137 ——, Nuclear Tests case, (New Zealand v France), Judgment of 20 December 1974, ICJ Reports 1974, 457...............................................................v, 12, 117 ——, Nuclear Tests case (Australia v France), Interim Protection, Order of 22 June 1973, ICJ Reports 1973.................................................................... 99. ——, Nuclear Tests case (New Zealand v France), Interim Protection, Order of 22 June 1973, ICJ Reports 1973.............................................................. 135. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16....... 110



Table of Cases xix

ICJ, North Sea Continental Shelf cases, Judgment of 20 February 1969, ICJ Reports 1969, 3...................................................................... 114, 224, 280 ——, North Sea Continental Shelf cases, Separate Opinion of Judge Ammoun, ICJ Reports 1969, 101................................................................. 115 ——, Case concerning the Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment of 24 July 1964, ICJ Reports 1964, 6........................................................................................................... 280 ——, Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment of 15 June 1962, ICJ Reports 1962, 6................... 21–2, 280 ——, South West Africa cases (Ethiopia and Liberia v South Africa), Preliminary Objections, Judgment, 1962, 319.............................................. 110 ——, South West Africa Cases, (Ethiopia and Liberia v South Africa), Preliminary Objections, Separate Opinion of Judge Jessup, ICJ Reports 1962, 387......................................................................................................... 58 ——, South West Africa cases (Ethiopia and Liberia v South Africa), Preliminary Objections, Joint Dissenting Opinion of Judges Spender and Fitzmaurice, ICJ Reports 1962, 465............................................................... 66 ——, Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Preliminary Objections, Judgment of 26 May 1961, ICJ Reports 1961, 17..25 ——, Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Preliminary Objections, Separate Opinion of Sir Gerald Fitzmaurice, ICJ Reports 1961, 52....................................................................... 278–9, 287, 293 ——, Case concerning right of passage over Indian territory, (Portugal v India), Preliminary Objections, Judgment of 26 November 1957, ICJ Reports 1957, 125........................................................................................... 72 ——, Anglo-Iranian Oil Co case, (United Kingdom v Iran), Preliminary Objections, Judgment of 22 July 1952, ICJ Reports 1952, 93.......... 71, 215–16 ——, Fisheries Case (United Kingdom v Norway), Judgment of 18 December 1951, ICJ Reports 1951, 116.................................................................... 22, 65 The International Military Tribunal, Trial of the Major War Criminals Before the International Mitlitary Tribunal, 1947.................................... 102–3 PCIJ, Minority Schools in Albania, Advisory Opinion of 6 April 1935, Series A/B, No 64, 1935, 4................................................................. 89, 91–2 ——, Legal Status of Eastern Greenland case (Denmark v. Norway), Judgment of 5 April 1933, Series A/B 53, 22........................ 93–102, 154, 232 ——, Legal Status of Eastern Greenland case (Denmark v Norway), Dissenting Opinion of Judge Anzilotti, Series A/B 53, 76..................... 94, 98 ——, Free Zones of Upper Savoy and the District of Gex case (France v Switzerland), Judgment of 7 June 1932, Series A/B 46, 96.......................... 87 ——, Serbian Loans case, Judgment of 12 July 1929, Series A 20, 4............... 282 ——, Certain German Interests in Upper Polish Silesia (Germany v Poland), Judgment of 25 May 1926, Series A 7, 2............................ 85–7, 101, 225, 231 ——, The Mavrommatis Jerusalem Concessions case (Greece v Great Britain), Judgment of 26 March 1925, Series A 5, 6......................... 83–7, 100, 225, 231

xx  Table of Cases ——, Case of the S.S. Wimbledon, Judgment of 17 August 1923, Series A 1, 15............................................................................................ v, 199 Arbiter Baron Lambermont, Arbitration between Germany and the United Kingdom relating to Lamu Island, Decision of 17 August 1889, Reports of International Arbitral Awards 1889, 237.................................................... 82 General Assembly: Resolution 61/34, A/RES/61/34, (2006). (Referred to as: Resolution 61/34).................................................................................. 3 General Assembly: Resolution 51/160, A/RES/51/160, (1997). (Referred to as: Resolution 51/160).............................................................. 2 League of Nations: Mandates Proposal (3081) and Annex (1373), (1932). (Referred to as: Mandates Proposal & Annex).......................................... 90 League of Nations: Minorities in Estonia, League of Nations Official Journal, vol 4, (1923), 1310–12.................................................................. 90–1 League of Nations: Minorities in Lithuania, League of Nations Official Journal, vol 4, (1923), 932–33. ...................................................................... 90

Introduction

T

HIS STUDY FOCUSES on assurances made by states creating a legally binding obligation for them to act in future as declared; an obligation which is brought about not through an offer met with acceptance, ie the conclusion of a bi- or multilateral treaty, but ‘merely’ through a state’s one-sided, unilateral pledge. The following pages will hence deal with what is commonly referred to as ‘promises’ in international law, although the formulation is less than fortunate as it seems to imply a mere moral obligation.1 Promises form a subcategory within the much broader and quite diverse topic entitled ‘Unilateral Acts of States’ on which a (usually rather short) section can be found in nearly every standard public international law textbook.2 The latter regularly group unilateral acts into categories which may vary slightly from author to author but typically comprise protest, recognition, waiver and promise.3 As their textbook tradition already indicates, unilateral acts are neither a new nor are they a rare phenomenon in international law. Quite on the contrary, there seems to be a consensus that states frequently make use of unilateral acts, not necessarily limited to the above-mentioned categories.4 It wasn’t

1   It has therefore rightly been identified as a ‘misnomer’, cf Lukashuk ILC, Summary Record of the 2629th Meeting, UN Doc A/CN.4/SR.2629 (2000), para 7. But as it is commonly used and accepted within legal doctrine to describe the legal phenomenon of interest here, it will be retained. 2   See, eg Ian Brownlie, Principles of Public International Law, 7th edn (Oxford/New York, 2008) 612–15; Antonio Cassese, International Law, 2nd edn (Oxford, 2004) 184–85; Jean Combacau and Serge Sur, Droit international public, 5th edn (2001) 90–96; Georg Dahm, Jost Delbrück and Rüdiger Wolfrum, Völkerrecht, 2nd edn (Berlin, 2002) vol I(3), 764–73; Wolf Heintschel von Heinegg, ‘Einseitige Rechtsakte’ in Knut Ipsen (ed), Völkerrecht, 5th edn (München, 2004), s 18, 234–40; Quoc Dinh Nguyen, Alain Pellet and Patrick Daillier, Droit international public, 7th edn, (Paris 2002) 359–66; Lasa Oppenheim, Robert Jennings and Arthur Watts, International Law 9th edn (Harlow, 1992), vol 1, pts 2–4, 1187; Paul Reuter, Droit international public, 6th edn (Paris, 1983) 163–74; Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, 3rd edn (London, 1957) vol I, 548–61; Malcolm N Shaw, International Law, 6th edn (Cambridge/New York, 2008) 121–22; Alfred Verdross and Bruno Simma, Universelles Völkerrecht: Theorie und Praxis, 3rd edn (Berlin, 1984) 424–31. 3   For the classification of unilateral acts see p 23 et seq. 4   See, eg ILC, Report of the Working Group, UN Doc A/CN.4/L.543 (1997) para 5: ‘In their conduct in the international sphere, States frequently carry out unilateral acts with the intent to produce legal effects’; Krzysztof Skubiszewski, ‘Unilateral Acts of States’ in M Bedjaoui (ed), International Law: Achievements and Prospects (1991) 221: ‘In international life unilateral acts are as numerous as they are frequent’; Christian Tomuschat, ‘Unilateral Acts under International Law’ in Droits et Culture. Mélanges en l’honneur du Doyen Yadh Ben Achour (Tunis, 2008) 1487: ‘Unilateral acts are ubiquitous in inter-State relationships’; and Karl Zemanek, ‘Unilateral Legal Acts Revisited’ in Karel Wellens (ed), International Law: Theory and Practice, Essays in Honour of Eric Suy (The Hague, 1998) 210, according to whom unilateral acts ‘have become the most frequent tool of State interaction’.

2  Introduction a big leap from this assessment to perceiving the absence of a common legal framework in this area as a lacuna in public international law. And indeed, the International Law Commission (ILC)5 drew this conclusion in 1996 and decided to propose the topic to the United Nations General Assembly as one suitable and appropriate for codification and progressive development. The General Assembly agreed,6 endorsed the proposal and the ILC embarked upon its new project with high hopes, stressing the importance of codifying ‘unilateral acts of states’. As the Commission pointed out, not only were states frequently acting unilaterally but: the significance of such unilateral acts is constantly growing as a result of the rapid political, economic and technological changes taking place in the inter­ national community at the present time and, in particular, the great advances in the means for expressing and transmitting the attitudes and conduct of States.7

It was consequently: In the interest of legal security and to help bring certainty, predictability and stability to international relations and thus strengthen the rule of law, [that] an attempt should be made to clarify the functioning of this kind of acts and what the legal consequences are, with a statement of the applicable law.8

This assessment notwithstanding, the ILC made only very little progress over the years to come. It turned out to be extremely difficult to even agree on a common ground to start on, as Commission members remained sharply divided on the preliminary question of whether a legal institution of ‘unilateral acts of states’, to which a common set of rules could be applied, actually existed. Yet, hope persisted amongst the majority to develop draft articles9 divided into a general part, including basic rules such as, inter alia, on the competence to formulate binding unilat5   The ILC is a subcommittee of the UN General Assembly and entrusted with the promotion of the progressive development of international law and its codification. In this capacity the Commission has produced drafts which formed the basis of various important treaties, amongst them the UN Convention on the Law of the Sea (1958), the Vienna Convention on Diplomatic Relations (1961), the Vienna Convention on Consular Relations (1962), as well as the Vienna Convention on the Law of Treaties (1969). The Commission is comprised of 34 members who ‘shall be persons of recognized competence in international law’ (art 2(1) of its Statute), and are elected for a five-year period, a ‘quinquennium’. For more see www. un.org/law/ilc/index.htm. 6  See GA Res 51/160, 3, para 13, which served as the ILC’s mandate by inviting the Commission to further examine the topic. 7   ILC 1997 Report of the Working Group, n 4 above, 2, para 5. 8  Ibid. 9   Whether the Commission should actually develop draft articles as its final outcome was not uniformly answered and left open, even though draft articles with commentaries thereto were held to be the most adequate way to proceed with the study, see ILC, Report of the Working Group, UN Doc A/CN.4/L.558 (1998) 2, para 7. Some members favoured a mere expository study (eg Simma, ILC, Summary Record of the 2525th Meeting, UN Doc A/ CN.4/SR.2525 (1998) 42, para 5) while others, including the Special Rapporteur who proposed various draft articles throughout his nine reports, hoped to develop genuine draft articles for the subject.



Introduction 3

eral acts or the lack of formal requirements, and a special part, comprised of four different sections, addressing acts falling into the categories of protest, waiver, promise and recognition.10 The reports of the appointed Special Rapporteur, Víctor Rodríguez Cedeño, included various proposals for draft articles for the general part, but despite a report focusing solely on recognition,11 one that comprised state practice structured into the above-mentioned categories12 and one highlighting some especially relevant cases from within each category,13 the Commission never considered any draft articles for part II of the Code, the one dealing with specific unilateral acts. Instead, after 10 years, nine reports, many working groups and continuous debates on the topic’s codifiability, the ILC finally decided to end its project in 2006. It cut the Gordian knot by slicing off a major part of the original topic and presented the General Assembly with 10 ‘Guiding Principles applicable to Unilateral Declarations of States Capable of Creating Legal Obligations’.14 Evidently, the ILC wished to rid its agenda of a subject matter with which it felt it had wrestled long enough. The General Assembly took note of the final outcome and expressed its appreciation later the same year.15 Informed by the debates that were held within the Commission and in light of the severe obstacles it encountered when struggling to achieve a productive and helpful outcome covering the whole ambit of unilateral state conduct, the approach taken here is far narrower. This study will, just like the Commission’s final product does, concentrate only on ‘declarations that are capable of creating legal obligations’, while focusing on a state’s concrete obligation to act or refrain from acting in a way it has pledged to do within the future. This will leave us with the category of ‘promise’, one which deals with declarations obliging states in a way that might be comparable to that of treaties but for which despite the Commission’s efforts, only a rudimentary and in parts obscure legal 10   For this approach see ILC 1997 Report of the Working Group, n 4 above, 5, para 18, as well as the outline prepared by the Working Group, ibid 5–7, para 19. The Special Rapporteur proposed a classification of unilateral acts in his Fourth Report, see Victor Rodriguez Cedeño, Fourth Report on Unilateral Acts of States, UN Doc A/CN.4/519 (2001) 10–22, paras 44–100. 11  Victor Rodriguez Cedeño, Sixth Report on Unilateral Acts of States, UN Doc A/ CN.4/534 (2003). 12  Victor Rodriguez Cedeño, Seventh Report on Unilateral Acts of States, UN Doc A/ CN.4/542 (2004). 13  Victor Rodriguez Cedeño, Eighth Report on Unilateral Acts of States, UN Doc A/ CN.4/557 (2005). 14  ILC, Guiding Principles applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with commentaries thereto, ILC Report, UN Doc A/61/10 (2006) ch IX, emphasis added. The final outcome deals only with declarations, not with acts, and only with those which can be said to create legal obligations. Articles on specific types of unilateral acts are not included. For the question which acts are covered by the Guiding Principles, see also n 16 below. 15   GA Res 61/34, 2, paras 2(d) and 3.

4  Introduction framework exists.16 Some Commission members had therefore rightly identified it as one, if not the most important category of unilateral acts the ILC had to deal with.17 In focusing on promises this book also follows Paul De Visscher’s advice, who in 1984 wrote: it is to be hoped that legal doctrine will again take up the study of promises in light of the requirements imposed by good faith, which are neither those of the rule of pacta sunt servanda nor those of the principle of estoppel.18 I  THE PRESUMED RARENESS OF PROMISES

A promise is commonly understood to be a unilateral manifestation of a state’s will through which it commits itself in a legally obliging manner visà-vis one or several addressees to act or refrain from acting in a particular 16  Whether the Guiding Principles dealing with declarations that are capable of creating legal obligations are applicable to unilateral acts other than promises is far from clear. Tomuschat, ‘Unilateral Acts’, n 4 above, 1497 considers merely protest to be excluded as protests clearly do not create any legal obligation. Any act of protest is indeed squarely outside the scope of the Guiding Principles (see also pp 33–34), despite the commentary’s note 954 which refers to a case that involves a protest in support of one of the Guiding Principles. Recognition is arguably a ‘declaration capable of creating legal obligations’, although it is more adequately in our view described in terms of opposability of an admitted fact. Also, it is usually said to be irrevocable unless the very object of recognition dissolves. Guiding Principle 10, however, merely prohibits ‘arbitrary revocation’ for declarations within the Principle’s reach and it is rather unlikely that the ILC intended to allow states more leeway in this area. Tomuschat, ‘Unilateral Acts’, n 4 above, 1499, hence notes: ‘It may well be that the ILC considered declarations of recognition as not coming within the scope of Principle 1, which, in the view of the present writer would be an erroneous interference’. There must be even stronger doubts whether a waiver may adequately be described as ‘creating legal obligations’, see pp 34–36. A waiver, also, and as a consequence of it having extinguished the right waived, is considered to be non-revocable and not merely non-arbitrarily revocable as the Guiding Principles would indicate if held to be applicable. See also Cassese, International Law, n 2 above, 185, for whom: ‘Promise is the only unilateral transaction giving rise to international obligations proper, that is, establishing a new rule binding the promising State towards one or more States’; similarly Hafner, ILC, Summary Record of the 2595th Meeting, UN Doc A/CN.4/SR.2595 (1999) para 32, where he pointed out that a definition which referred to ‘the intention of acquiring legal obligations’ implied that only promises will be taken into account. For more on the different categories of unilateral acts, see p 23 et seq. 17   cf, eg Simma, ILC, 2525th meeting, n 9 above, para 8: ‘The most interesting problem, however, concerned the binding force, for the States from which they emanated, of unilateral promises – a term which . . . was to be preferred to ‘unilateral declaration’, which was too formal and so capable of encompassing very different acts’. See also the largely recapitulative Fifth Report in which the Special Rapporteur mentioned that the ILC had noted that the work of codification and progressive development may focus, at least initially, on promises, Victor Rodriguez Cedeño, Fifth Report on Unilateral Acts of States, UN Doc A/CN.4/525 (2002) 5, para 14. 18   My translation of Paul de Visscher, ‘Remarques sur l’évolution de la jurisprudence de la Cour Internationale de Justice relative au fondement obligatoire des certains actes unilatéraux’ in Essays in Honour of Manfred Lachs (The Hague, Boston, 1984) 469: ‘il faut souhaiter que la doctrine reprenne l’étude de la promesse unilatérale à la lumière des exigences de la bonne foi, qui ne sont ni celles de la règle pacta sunt servanda ni celles du principe de l’estoppel’.



The Presumed Rareness of Promises 5

way in the future. It requires no acceptance or any reaction from the side of the addressee(s) to become effective. While promises have been studied before, no English monograph19 focuses exclusively on this topic and even most articles do not put their whole thrust behind analysing promises of states but address them only when dealing with unilateral acts in general.20 In light of the potentially far-reaching consequences of such a unilaterally assumed legal obligation, this is rather surprising; all the more so as the legal framework operable in this area is far from clear. One of the reasons for promises having received comparatively scarce attention might be related to the fact that while unilateral acts of states are widely perceived as a common phenomenon, those falling into the category of promise are assumed to be rare. Surely, the unclear legal framework remained a hindrance for promises to become a unilateral act of considerable impact and played its part in forcing many commentators to assume a contractual relationship whenever a state was held to have displayed an intent to commit itself, even if the construction of the latter had to employ tacit acceptances and establish a meeting of minds which scarcely reflected the actual communication that took place between the parties. While promises may very well be less frequent than commitments undergone through treaties, it is striking that the diagnosis of state promises actually being a rare phenomenon in international law is regularly bolstered not so much by an empirical study of state behaviour, but by concluding that unilateral and legally binding undertakings by a state lacking a quid pro quo must be infrequent, as no state will be willing to give without receiving anything in return.21 Jumping to this a priori conclusion is, however, 19   Neither did we find a monograph on promises in international law in the German or French language. In Italian there is Sergio M Carbone, Promessa e affidamento nel diritto internazionale (Milano, 1967). 20  Exceptions are especially Sergio M Carbone, ‘Promise in International Law: A Confirmation of its Binding Force’ (1975) 1 Italian J International Law 166; Wilfried Fiedler, ‘Zur Verbindlichkeit einseitiger Versprechen im Völkerrecht’ (1976) 19 German YB International Law 35; Jean-Paul Jacqué, ‘A propos de la promesse unilatérale’ in Melanges offerts a Paul Reuter (1981) 327–45; and Jean-Didier Sicault, ‘Du caractère obligatoire des engagements unilatéraux en droit international public’ (1979) 83 Revue Générale de Droit International Public 633. 21   This assumption apparently dates back to the time before the Nuclear Tests cases where the doctrinal foundations of promises stood on unclearer grounds and seems to stem from Eric Suy, Les actes juridiques unilatéraux en droit international public (Paris 1962) 111: ‘Notre thèse est la suivante: les promesses purement unilatérales existent en droit international bien qu’elles soient très rares. Cette rareté s’explique facilement étant donné qu’aucun Etat ne se prête de bon gré à faire des concessions spontanées et gratuites’. See also Jean Charpentier, ‘Engagements unilatéraux et engagements conventionnels: différences et convergences’ in Jerzy Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century (The Hague/London/Boston, 1996) 373, who considers the absence of reciprocity to explain the rareness of unilateral engagements. In the same vein, Victor Rodriguez Cedeño, First Report on Unilateral Acts of States, UN Doc A/CN.4/486 (1998) para 141 and Cedeño, Fifth Report, n 17 above, para 35. Critically already Sicault, ‘Engagements unilatéraux’, n 20 above, 638, for whom ‘on sent encore ici l’attraction, pour ne pas dire la fascination, exercée par l’accord de volontés’.

6  Introduction premature as there are many reasons conceivable why a state might want to make a unilateral promise, without acting upon – while not necessarily discarding – utilitarian motives.22 One of promise’s specific and sometimes possibly advantageous features as a unilateral act is that it does not allow for any bargaining; no acceptance or any reaction from the addressee(s) is necessary for the legal obligation to arise. In order to create a new legal obligation, a promise is thereby the quicker and easier legal mechanism in comparison to treaties, where only through the participation of another or several other parties is it possible to seal the deal. Of course, the newly assumed obligation created by a promise will only lie with the declaring state,23 but contrary to what might be assumed, this may not necessarily be to its detriment. Through a promise a state might, for example, unilaterally assume a concrete obligation in order to create a fait accompli, thereby hoping its addressee(s) will refrain from initiating the often long and painstaking process which typically precedes the conclusion of a treaty, and instead accept the benefit so readily promised – even if the commitment made might not go as far as its addressee(s) initially demanded.24 This strategy might be especially useful where a state is not so much facing a typical commercial exchange situation (as through making a promise it will receive nothing ‘material’ in return) but where it is confronted with the claim to alter its behaviour, grant certain guarantees or even establish a clear legal framework for a certain area. In these cases, the self-­ proclaimed commitment, the fait accompli, can not only help to reduce public as well as political pressure to comply with the claims made, but

22   See also Fiedler, ‘Einseitige Versprechen’, n 20 above, 54, as well as Tomuschat, ‘Unilateral Acts’, n 4 above, 1495, the latter emphasising that not receiving anything at the ‘juridical level’ does not mean a state will not get anything in return: ‘In political terms, there will always be some advantage’. 23   As Guiding Principle 9 stipulates: ‘No obligation may result for other States from the unilateral declaration of a State. However, the other State or States concerned may incur obligations in relation to such a unilateral declaration to the extent that they clearly accepted such a declaration’. The acceptance of another state’s power to regulate certain matters via a unilateral declaration with negative legal repercussions for the accepting state, ie limiting its rights, may, however, be expressed prior to the unilateral declaration made. In these cases a unilateral declaration has been said to merely ‘activate’ a state’s prior obligation. Where, for example, a coastal state issues a unilateral declaration in which it declares to extend its territorial waters up to the generally accepted limit of 12 nautical miles measured from its baseline (see United Nations Convention on the Law of the Sea (UNCLOS), Art 3) it will extend its sovereignty, and thus require full respect of its national rules and regulations, in an area previously not under its exclusive control. It may, however, do so as states have agreed to accept these declarations as decisive in determining the scope of a state’s territorial seas (within the limits and exceptions agreed upon in UNCLOS, pt II, s II). For the question whether these sort of declarations really are unilateral acts, which they are, see p 55 et seq. 24   Egypt’s unilateral declaration on the use of the Suez Channel after the Suez crisis was deposited with the UN Secretary-General and is an example in this regard as it successfully forestalled the holding of an international conference on the matter. For more see pp 108–14.



The Presumed Rareness of Promises 7

in fact quickly alter the legal landscape and thereby create the legal security demanded.25 Also, a state by assuming an obligation unilaterally can, in fact, even be reaching out for a ‘quid pro quo‘, be it only in the form of the goodwill of another state or a future commitment of the latter, while, however, considering it unwise to establish a formal do ut des relationship via a treaty offer and demand something in immediate return. Instead, it might be more sensible to use a unilateral obligation and wait a while before asking, without legally demanding, the addressee to ‘return the favour’.26 In a similar vein, states might also pledge their belief in a certain concept and hence assume a unilateral commitment (like an immediately effective ban on the use of certain weaponry), in order to entice others to join in. These mechanisms become all the more important as states in the ‘globalised’ world are bound to meet again and their interdependence is anything but declining; with it mutual trust as well as ‘good relations’ are of ever-increasing importance. Especially in a time such as ours, where public opinion can arouse not only considerable pressure but influence consumers’, companies’ and states’ cash flow, states might feel a strong incentive simply to ‘look good’ in the international arena;27 hence, the use of a non-reciprocal legal mechanism such as an (officially and generously proclaimed) promise might come in handy, be it in order to be perceived as selfless and giving or simply to assume a legal obligation, like for example the cessation of a criticised practice such as drift-net fishing,28 without any more ado. In another scenario, a state through its representatives can be willing to commit itself in a legal way for the very reason of limiting its future options.29 Just as national constitutions do, international obligations can 25   This does, of course, presuppose the possibility of defining a clear normative framework for promises. For the latter see chapter three. A promise’s beneficiary can, however, choose to reject the promise made, see also pp 247–50. 26   As Sicault remarks in discussing doctrine’s sometimes rather desperate efforts to construe a treaty relationship out of separate unilateral declarations: ‘On ignore ainsi délibérément le fait qu’une partie peut logiquement estimer que la route vers des avantages réciproques passe par des obligations univoques auxquelles elle accepte de souscrire en considération de l’objectif final’, Sicault, ‘Engagements unilatéraux’, n 20 above, 644. 27  Even though public opinion, along with ‘blame and shame’ tactics, are sometimes belittled, the evolving field known as ‘corporate social responsibility’ indicates consumers’ impact as well as companies’ awareness of their vulnerability and dependence on a good image. States have similar interests and as, for example, the Olympic Games in China in 2008 showed, are indeed ready to invest millions into their image, millions which only seemingly are spent ‘without receiving anything in return’. 28   Japan, on 17 July 1990, announced that it was suspending drift-net fishing in the South Pacific during 1990 and 1991, a year before the adoption of the UN Resolution on the matter, see (1991) 95 Revue Générale de Droit International Public 155. 29   The precommitment theory comes to mind. For an introduction, the application of the latter to international law and some of the incentives also mentioned here, even if not precommitments in the sense of the theory, see Steven R Ratner, ‘Precommitment Theory and International Law: Starting a Conversation’ (2002–03) 81 Texas Law Review 2055, 2058–59, 2074–76.

8  Introduction be used in order to establish legal boundaries. Fearing that a change of circumstances (be it war, civil strife, revolution, terrorist attacks, inflation or natural catastrophes) will increase especially inner state pressure, with desperate times calling for desperate measures, a state might find it wise to get the international community involved by assuming an international obligation to refrain from certain actions hoping that this legal restraint will help to render the outlawed actions impossible, no matter what the future brings. Whereas in the former case the idea is one of selfrestraint (or that of future governments),30 the very same strategy might be employed to influence and alter a third party’s perception of what a state might do in the future (eg convince investors by assuming a commitment outlawing any future nationalisation of property or the like).31 A state might also direct a promise to the ‘international community’32 in face of political reasons which hinder it from directly addressing or even sitting down at the table with one of the beneficiaries, or indeed the sole factual beneficiary of the obligation undertaken. In an article discussing the Nuclear Tests cases, the landmark decision for unilateral and legally binding assurances, Thomas Franck referred to Egypt’s promise which spelled out a legal regime for the use of the Suez Canal and observed: This is a most useful step forward in international jurisprudence. It is particularly helpful, at a time when Egypt is indicating a willingness to undertake binding commitments in respect of Israel but not to enter into an agreement with Israel, that the theory of law should offer no impediments to such unilateral but legally binding accommodations.33

Last but not least, states might also favour a unilateral declaration over a treaty obligation because the former is perceived as ‘less binding’ by them, in the sense of it being more easily revocable and amendable than a treaty, especially a multilateral one.34 30   Since the change of circumstances mentioned above can simply be the election of a new government which the present government would rather see with its hands tied by an international obligation. 31   The same reasons can, of course, lead states to conclude a treaty with similar content. It is, however, much easier and quicker to assume a unilateral obligation vis-à-vis the international community by means of a promise as the participation of the addressees does not have to be organised. 32   The international community is frequently referred to as a possible addressee of unilateral declarations and Guiding Principle 6 reads: ‘Unilateral declarations may be addressed to the international community as a whole, to one or several States or to other entities’. Nevertheless the term is ambivalent. Does it refer to the United Nations, encompass each and every single state, or both? What about the European Union and other international and regional organisations? The most sensible interpretation is to assume that in these cases the declaration is made to all those international actors affected by it, in other words: ‘to whom it may concern’. See also Andreas L Paulus, Die internationale Gemeinschaft im Völkerrecht – The ‘International Commmunity’ in Public International Law: English Summary (München, 2001) especially 329 et seq and 444–46. 33   Thomas M Franck, ‘Word Made Law: the Decision of the International Court of Justice in the Nuclear Test Cases’ (1975) 69 American J International Law 612, 615–16. 34   On the revocability of promises, one of the doctrinal core questions, see pp 257–76.



The Presumed Rareness of Promises 9

This inquiry into a ‘state’s mind’ is of course fragmentary and mainly illustrates that promises cannot be assumed to be and necessarily remain rare, simply from them lacking a direct and tangible quid pro quo. Surely it will often rather be a mixture of the above-mentioned motives, along with additional incentives, which may inspire a state to use a unilateral assurance and not a treaty. The recent declaration of independence by Kosovo is an interesting case in this regard.35 The adherence to various obligations, such as to comply with the Ahtisaari Plan, to abide by the principles of the United Nations as well as with the Helsinki Act and other acts of the Organization on Security and Cooperation in Europe, was unilaterally pledged by Kosovo and not bi- or multilaterally ensured. Kosovo went as far as to expressly ‘affirm, clearly, specifically, and irrevocably, that Kosovo shall be legally bound to comply with the provisions contained in this Declaration’ and ‘declare[d] publicly that all states are entitled to rely upon this declaration’.36 There is indeed little reason or room to doubt that Kosovo was willing to bind itself legally, the 35   For those recognising Kosovo as a state it is a directly applicable example; for those not recognising Kosovo it is still of importance as it is nevertheless illustrative of a situation in which a declarant might take recourse to a unilateral declaration. Even if Kosovo is not seen as a state, a state might find itself in a similar situation, ie being rejected by numerous parties of a certain treaty it would like to join. 36  See Kosova Declaration of Independence, available at www.assembly-kosova. org/?cid=2,128,1635, para 12. The declaration includes, inter alia, the following passages: ‘We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state . . . (3) We accept fully the obligations for Kosovo contained in the Ahtisaari Plan, and welcome the framework it proposes to guide Kosovo in the years ahead. We shall implement in full those obligations including through priority adoption of the legislation included in its Annex XII, particularly those that protect and promote the rights of communities and their members. (4) We shall adopt as soon as possible a Constitution that enshrines our commitment to respect the human rights and fundamental freedoms of all our citizens, particularly as defined by the European Convention on Human Rights. The Constitution shall incorporate all relevant principles of the Ahtisaari Plan and be adopted through a democratic and deliberative process . . . (8) With independence comes the duty of responsible membership in the international community. We accept fully this duty and shall abide by the principles of the United Nations Charter, the Helsinki Final Act, other acts of the Organization on Security and Cooperation in Europe, and the international legal obligations and principles of international comity that mark the relations among states. Kosovo shall have its international borders as set forth in Annex VIII of the Ahtisaari Plan, and shall fully respect the sovereignty and territorial integrity of all our neighbours. Kosovo shall also refrain from the threat or use of force in any manner inconsistent with the purposes of the United Nations. (9) We hereby undertake the international obligations of Kosovo, including those concluded on our behalf by the United Nations Interim Administration Mission in Kosovo (UNMIK) and treaty and other obligations of the former Socialist Federal Republic of Yugoslavia to which we are bound as a former constituent part, including the Vienna Conventions on diplomatic and consular relations. We shall cooperate fully with the International Criminal Tribunal for the Former Yugoslavia . . . (12) We hereby affirm, clearly, specifically, and irrevocably, that Kosovo shall be legally bound to comply with the provisions contained in this Declaration, including, especially, the obligations for it under the Ahtisaari Plan. In all of these matters, we shall act consistent with principles of international law and resolutions of the Security Council of the United Nations, including Resolution 1244 (1999). We declare publicly that all states are entitled to rely upon this declaration, and appeal to them to extend to us their support and friendship’.

10  Introduction problem, however, being that the obligations could not have been assumed by accession to the relevant treaties as some of the respective international organisation’s member states (including those with veto powers within the Security Council) were (and at the time of writing remain) unwilling to recognise it and would have vetoed any admission. Yet, Kosovo obviously held them to be of vital importance in order to increase its chances of surviving in the international arena and included assurances to abide by these principles in its unilaterally proclaimed declaration of independence. A perusal of newspaper headlines in fact reveals that states through their representatives regularly take recourse to unilateral declarations, declarations that could fall into the ambit of the legal category of ‘promise’ as currently defined.37 States declare their willingness to cancel debts,38 to provide financial, technical or humanitarian aid and assistance,39 espe37   For more examples of pledges in highly sensitive areas, see also p 15; more state practice is addressed in chapter two. 38   See, eg the declaration by President Chirac as cited in the Special Rapporteur’s Seventh Report, in which he ‘announced that France would write off a total of 739 million francs in bilateral debt that had been incurred by Guatemala, Honduras, Nicaragua, and El Salvador for development aid . . . and also promised to negotiate a reduction in their commercial debt at the next meeting of the Paris Club’, see Cedeño, Seventh Report, n 12 above, 12, note 36, and (1999) 103 Revue Générale de Droit International Public 195. If a debt is immediately cancelled via a state’s declaration, as opposed to it merely pledging its will to cancel it in the near future, the declaration will constitute a waiver rather than a promise. For the distinction see also pp 34–36. An example of a waiver is the Spanish Head of Government’s statement of 4 April 2000: ‘I should also like to inform you that I have announced that US$200 million of official development assistance to the main Sub-Saharan African countries is being written off. That is to say, Spain is announcing the cancellation of US$200 million worth of subSaharan African countries’ indebtedness to our country’, cited in Cedeño, Seventh Report, n 12 above, 12, note 36. 39   See, eg the following declaration which, amongst others, is provided in Cedeño, Seventh Report, n 12 above, 11, note 29: the Embassy of Ireland in Washington released a message dated 23 March 2003 from its Secretary of State that was worded as follows: ‘I have today announced that the Government is putting aside €5 million in humanitarian assistance for the alleviation of suffering of innocent Iraqi civilians. This funding will be distributed to our partner NGOs and International Agencies who have the capability to respond effectively to the current crisis’. See also Cedeño, Seventh Report, n 12 above, 13–14, note 37, inter alia, citing the government of Australia as having announced on 28 October 2003 to make AUS$110 million available for the Iraqi people. See also the examples provided by Fiedler, ‘Einseitige Versprechen’, n 20 above, 40, note 20, who, inter alia, mentions a German assurance to grant a credit to Chile (citing BT.-Drucks. 7/6306f, 11529ff) which, after the regime in Chile had changed, was never fulfilled, with the German government arguing that it had never given a legally binding assurance but had merely announced a possible future course of action (der Kredit wurde lediglich ‘in Aussicht gestellt’ und nicht verbindlich ‘zugesagt’). When the then German Foreign Minister, Frank-Walter Steinmeier, visited West-African countries in 2008 he announced an ‘Aktion Afrika [Action for Africa]’ which was to lead to an increase in money paid for cultural exchange. Travelling through Ghana, Togo and Burkina Faso, Steinmeier ‘was told that his slogan was considered a given word, a promise, which he had to keep’ (my translation of the German original: ‘Ihm wurde klargemacht, dass sein Slogan als gegebenes Wort gilt, als Versprechen, das er zu halten hat’); Wulf Schmiese, ‘Begeisterung in Afrika, Zurückhaltung zu Hause’, FAZ, 13 February 2008, 6. During the G8 meeting in Heiligendamm, Germany, in 2007, the world’s richest nations pledged to give US$60 bil-



The Presumed Rareness of Promises 11

cially but not limited to times of crisis and catastrophes; they pledge to reduce greenhouse gases,40 to refrain from drift-net fishing41 and nuclear testing.42 Nearly any commitment to follow a certain line of conduct can be drafted along the lines of a unilateral assurance. Modern media does its job and transports the messages to addressees around the globe. Whether it be a written declaration or ‘merely’ a statement made during a press conference, secured to videotape or hard drive even the spoken word is quickly stripped of its ephemeral character. To be sure, this is not to say that any of these declarations are legal undertakings, nor to claim that none of them are. Looking at the current legal framework applicable to promises, the main question will be phrased in terms of whether any of them display an intent to be legally bound. A state’s intent will, however, be inferred from its actions, which again are necessarily judged against the background of legal rules. If we compare a person waving a hand to a friend at a bus stop with one waving his/her hand during an auction, the action is the same but on account of a different legal environment, a legal will is going to be inferred in the latter case. Transferred to promises, this leads to the question as to what kind of framework is applicable for unilateral declarations made by states: Which circumstances will be taken as indicating an actor’s will to be bound? Is a solemn proclamation necessary, indicative or even sufficient? Do we need any special wording, even repeated pledges or does a written confirmation of a precisely crafted pledge establish an intent to be legally bound? These are only some of the questions that come to mind. In addressing the law of treaties, the concept of intent has been referred to as a rather ‘awkward concept’ in itself;43 nevertheless, at least with written treaties, lion to fight diseases such as AIDS in Africa. German Chancellor Merkel stressed: ‘We are conscious of our obligations and want to fulfil the promises we made. And we will do that’; while development campaigners criticised the pledge as vague and deliberately misleading, see ‘Activists slam G8 pledge on Africa’, CNN.com, 8 June 2007. 40   See, eg the declaration made by the US President George W Bush: ‘Our immediate goal is to reduce America’s greenhouse gas emissions relative to the size of our economy. My administration is committed to cutting our Nation’s greenhouse gas intensity, how much we emit per unit of economic activity, by 18 percent over the next 10 years’, cited in (2002) 96 American J International Law 487. 41   cf Japan’s declaration as mentioned at n 28 above. 42   See the statement of the Chinese government made on 29 July 1996 and annexed to a letter dated the same day from the Permanent Representative of China to the UN SecretaryGeneral, asking for it to be circulated as an official document of the General Assembly. Its first paragraph reads as follows: ‘On 29 July 1996, China successfully conducted a nuclear test. The Government of the People’s Republic of China hereby solemnly declares that it will start a moratorium on nuclear testing effective from 30 July 1996. Such an important decision by China is not only a response to the appeal of the vast number of non-nuclear-weapon States, but also a concrete action to promote nuclear disarmament’, GA Doc A/51/262. See also the declarations made by France with regard to atmospheric tests as cited in the Nuclear Tests cases and addressed at p 116 et seq. 43   Jan Klabbers, The Concept of Treaty in International Law (The Hague/Boston/London, 1996) 65–95.

12  Introduction its application, while complicated, remains easier since here a formal ratification procedure exists on usually both the international and national level. For promises this is generally not the case. II  A LEGAL FRAMEWORK WITH MANY OPEN QUESTIONS: A FIRST LOOK

The crucial point of departure for the international lawyer will, of course, be: Can such assurances ever be taken legally seriously, ie considered to be binding? This question as to whether or not official proclamations can constitute legal commitments and thereby legally speaking solid ground for other states to rely on, has been answered in the affirmative by the International Court of Justice (ICJ). If made publicly and with the intent to be bound a unilateral declaration becomes binding for its author, said the ICJ in its well known Nuclear Tests cases: It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.44

Even though it has been labelled a politically motivated ‘decision not to decide’,45 the ruling’s legal doctrine has survived until today and was confirmed by the Court in other judgments.46 While some scholars 44  ICJ Nuclear Tests (Australia v France), Judgment (1974) 267, paras 43–44 and ICJ Nuclear Tests (New Zealand v France), Judgment (1974) 472, paras 46–47. Both judgments are based on largely identical facts, were issued on the same day and contain for the most part identical wording. The citations referred to in the following can therefore be found in both rulings, unless indicated otherwise. Largely for reasons of both the readers’ and the writer’s convenience and in keeping with the treatment of the cases by most commentators, future footnotes will make reference to Australia v France only. 45   Franck, ‘Word Made Law’, n 33 above, 613, for whom the ruling, just like the famous US Supreme Court decision in Marbury v Madison, demonstrated ‘that cases need not have monumental outcomes to make monumental law’, ibid 612. 46   See ICJ, Application of the Genocide Convention, Judgment (Merits) (2007) paras 377–78; ICJ, Armed Activities on the Territory of the Congo, Judgment (Jurisdiction and Admissibility) (2006) paras 45–53; ICJ, Frontier Dispute, Judgment (Merits) (1986) 573–74 paras 39–40; ICJ, Paramilitary Activities in and against Nicaragua, Judgment (Merits) (1986) 132, para 261. The ICJ here confirmed its doctrine, even though no binding commitment was in the end found to exist in these cases. For more see chapter two.



A Legal Framework with Many Open Questions: A First Look 13

had contemplated the existence of unilateral binding assurances termed ‘promises’ long before the Nuclera Tests cases,47 others have been highly sceptical.48 While some scepticism might persist, today the existence of promises in international law is met with broad acceptance.49 Its capability as a means for states to oblige themselves legally has further more been confirmed by the work within the ILC, through its final outcome, the Guiding Principles. Although the latter do not use the word promise, the definition contained in Guiding Principle 1 is in the Commission’s own words ‘very directly inspired’50 by the pivotal decision in that very area, ie the Nuclear Tests cases. It reads: Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith; States concerned may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected.51

The ILC has hence added some of its weight to the legal doctrine of promises in international law by choosing to underline the ICJ’s reasoning. Even though we are therefore far from facing a legal terra incognita when 47   Such as Garner, Balladore Pallieri, Verdross, De Nova or Suy, to name a few. For more see chapter two and the scholarly debates depicted therein which arose in respect of the cases and state practice leading up to the Nuclear Tests cases. 48   See especially R Quadri, ‘Cours général de droit international public’ (1964) (III) 113 Recueil des Cours 245, 363; Alfred P Rubin, ‘The International Legal Effects of Unilateral Declarations’ (1977) 71 American J International Law 1. See also Charles de Visscher, Problèmes d’interprétation judiciaire en droit international public (Paris, 1963) 186–88. 49  For scholarly support see, eg Cassese, International Law, n 2 above, 185; Carbone, ‘Promise in International Law’, n 20 above, 166; Charpentier, ‘Engagements Unilatéraux’, n 21 above, 368, para 4; Vladimir-Djuro Degan, ‘Unilateral Act as a Source of Particular International Law’ (1994) 5 Finnish YB International Law 149, 188, para 12; Heintschel von Heinegg, ‘Einseitige Rechtsakte’, n 2 above, 239, MN 17; J-P Jacqué, Eléments pour une théorie de l’acte juridique en droit international public (Paris, 1972) 255–57 and Jacqué, ‘Promesse unilatérale’, n 20 above, 327; Nguyen, Pellet and Daillier, Droit international public, n 2 above, 362; Rodolfo De Nova, ‘Die Neutralisation Österreichs’ (1958) 54 Die Friedenswarte 298, 299–305; Reuter, Droit international public, n 2 above, 164; Sicault, ‘Engagements unilatéraux’, n 20 above, 634; Skubiszewski, ‘Unilateral Acts’, n 4 above, 224, 228–29; Suy, Actes unilatéraux, n 21 above, 109; Tomuschat, ‘Unilateral Acts’, n 4 above 1496; Visscher, ‘Remarques’, n 18 above, esp 464; Gian Carlo Venturini, ‘Attitudes et actes unilatéraux des états’ (1964) (II) 112 Recueil des Cours 363, 396, 400–5. For the Special Rapporteur, see especially Cedeño, Fourth Report, n 10 above, 18–19, paras 79–84 and Cedeño, Seventh Report, n 12 above, 7–21. Rejecting any classification but not the doctrine according to which unilateral assurances of states pledging a certain future course of conduct can be binding, see Brownlie, Principles, n 2 above, 641–42. Simply referring to ‘declarations’ (which are held apart from notification, protest and renunciation) in this respect, see also Oppenheim, Jennings and Watts, International Law, n 2 above, s 577, 1187. (However, as a protest, recognition or waiver, and even offers or an agreement giving rise to a treaty, may be included in a declaration, the term declaration is incapable of providing an adequate delimitation of the act here in question. On the term ‘declaration’ see also the discussion within the ILC as depicted at p 20 et seq.) 50  ILC Guiding Principles with Commentaries, n 14 above, Commentary on Guiding Principle 1, para 1. 51   Ibid Guiding Principle 1.

14  Introduction it comes to promises, a closer look, as will be taken in chapter three, at the legal framework drawn up by the ILC quickly eradicates the assumption that unilateral declarations manifesting a will to be bound and promising certain future conduct are hence a legally well defined tool, ready for effective use in inter-state relations. Unlike in the case of the codification of the law of treaties, where the Commission after years of work concluded its mandate by presenting a precise and rather conclusive legal framework, it failed to do so in the area of obliging declarations. At the very outset of its study, the Special Rapporteur had rightly remarked that the doctrine which had developed in this area was far from being consistent and that progressive development and not mere codification was necessary in this area of law.52 The ILC, however, never reached this stage in its codification attempt and the finally published ‘Guiding Principles‘, not draft articles, hence failed to resolve pressing matters within the very area of their application. In order to overcome the deadlock, the ILC decided to rely heavily on dicta of the ICJ, an approach which is likely to appeal to most international lawyers.53 And while this choice indeed paved the way to ‘drop the topic’, it, however, at the same time secured that the desired outcome of enhancing predictability in international law was not achieved. The Commission itself had realised from the very beginning that while the subject of unilateral acts had ‘been touched upon by several judgments of the ICJ, and especially in the Nuclear Tests cases, . . . the celebrated dicta leave room for uncertainties and questions’.54 As the Guiding Principles chose to cling to the Court’s wording (while even loosening it in part)55 these uncertainties and questions have now been directly transplanted into the Commission’s final outcome. In light of the impasse into which the ILC had manoeuvred itself, the final result might well have been the only one feasible. Nevertheless, as is shown in chapter three in more detail when discussing the precise legal framework, anyone reading through the Commission’s final product while looking for guidance when dealing with declarations of states will soon realise that he or she is left with ‘Guiding Principles’ which in core aspects fail to live up to their name’s very own promise, as they simply do not guide. III  THE NEED FOR A CLEAR ASSESSMENT OF THE APPLICABLE LAW

Without having moved beyond the ICJ’s brief dicta, the Guiding Principles for unilateral declarations have anything but closed the book on the topic.   Cedeño, First Report, n 21 above, 5, para 9 and 6, para 15.   See the analysis provided by Tomuschat, ‘Unilateral Acts’, n 4 above, 1492–93. 54   ILC, Report of the Working Group in (1996) II(2) YB International Law Commission 141, Annex II, Addendum 3, para 3(b), emphasis added. 55   See pp 183–94. 52 53



The Need for a Clear Assessment of the Applicable Law 15

Quite on the contrary, the lengthy and thorough debates within the ILC, the disagreement voiced over many important aspects as well as the various reports published on different issues, including the analysis of state practice in the Special Rapporteur’s Seventh Report, can be taken as a new and fresh starting point for legal academia and research. Because notwithstanding the criticism of the Commission’s final outcome, its call for the identification of more precise rules in order to allow for more stability, predictability or – in short – security in international relations, is as important today as it was when it began its work in 1997. Due to the everincreasing interplay of people as well as problems across borders, states cannot refrain from interaction and, indeed, they don’t. Yet, the fragmented and unclear rules operating within the area of unilateral promises do not provide for any certainty in international relations – quite on the contrary. This status quo is all the more worrisome as states employ unilateral pledges even in highly sensitive areas. There are unilateral assurances not to use nuclear weapons56 or to grant immunity from prosecution;57 states promise to allow foreign powers to fly their planes over their territories58 or have foreign nuclear-powered warships enter their ports,59 as well as to deposit nuclear weaponry on the promising nation’s territory.60 States unilaterally declare not to execute extradited criminals or to refrain from employing harsh interrogation techniques61 and torture,62 to name a few more examples from state practice. As mentioned, a closer look at the declaration of independence proclaimed by Kosovo reveals a full bouquet of unilateral pledges, which were obviously considered vital in order to smooth the way to international recognition. International jurisprudence   For the so-called negative-security assurance, see pp 161–66.   See, eg the written declaration of the Minister of Defence of the Netherlands through which states that participated in a NATO training exercise to be held in the Netherlands were notified and which is cited as relevant state practice by the Netherlands itself in response to the questionnaire prepared by the ILC and sent to governments by the UN SecretaryGeneral: ‘The declaration was addressed in particular to the participating non-NATO States, that is, States which were not parties to the NATO status-of-forces agreement, and contained a promise to provide to members of their military forces similar facilities, exemptions and waiver of jurisdiction for crimes and offences as contained in the agreement’, in ILC, Replies from Governments to the Questionnaire, Report of the Secretary-General, UN Doc A/ CN.4/511 (2000) 4. 58   See Tomuschat, ‘Unilateral Acts’, n 4 above, 1496–97. 59   See the declaration made by New Zealand vis-à-vis the United States in 1982 according to which the former will not forbid US nuclear-powered warships to enter its ports, cited in (1983) 87 Revue Générale de Droit International Public 405. 60   For more see pp 148–51. 61   See the declarations of the English representative before the European Court of Human Rights, addressed at pp 141–45. 62   GA Res A/RES/32/64 of 8 December 1977 called upon Member States to make unilateral declarations against torture and other cruel, inhumane or degrading treatment, urging them to give these declarations a maximum of publicity. A ‘model unilateral declaration’ was annexed. For more see p 140. Interesting in this context also Ashley Deeks, Promises Not to Torture: Diplomatic Assurances in U.S. Courts, ASIL Discussion Paper (December 2008). 56 57

16  Introduction and legal commentators alike have provided ample reason for states to rely on unilateral declarations made. To again cite Thomas Franck: Thanks to the Court’s decision, each state must now recognize that what it solemnly says it will do, or, more important, what it says it will not do, becomes a part of that trellis of reciprocal expectations on which the fragile international system grows.63

As presented in chapter two, promises are indeed used by states; they surface in the international legal debate, are relied upon and adjudicated before the ICJ. Yet, as the beginning of chapter three illustrates, the Guiding Principles established by the ILC reveal a lack of normative precision in this area. One may be tempted to say: states are currently playing the game, without really knowing the rules. More accuracy in determining the legal framework could, on the one hand, help to establish trust in binding declarations made, whilst, on the other hand, indicating in which cases state action might be taken as a sign of goodwill but will not be considered as binding, and hence not fully trustworthy by an international lawyer – nor will it allow for the legal sanctions available for obligations breached under international law. While this is not to say that legal commitments are necessarily and always more reliable than merely political ones, it should not be overlooked that whether a declaration is considered to be binding or not is likely to be one factor influencing the amount of trust placed on it by the addressee, just as it is likely to influence the declarant in assessing whether he has to abide by the assurance made.64 A solemn pledge is somewhat weakened if it is based on the addressee’s assumption that it is not binding, ie modifiable and revocable at will. If therefore, in our legalised world,65 the international lawyer’s answer to the question: ‘Is State A bound by its declaration?’, in light of a rudimentary framework, remains a firm ‘Maybe!’, without him even being able to spell out when this ‘maybe’ is likely to tilt either way, law can not be considered as stabilising international relations. Despite numerous rulings on the matter, currently, uneasiness still prevails when dealing with unilateral declarations.66 While this uneasiness is understandable in light 63   Franck, ‘Word Made Law’, n 33 above, 616. Similarly, de Visscher, ‘Remarques’, n 18 above, 465, emphasising that states now have to be more prudent when they make declarations. 64   As Martti Koskenniemi, a critical observer of legal argument himself, points out in a footnote with further references: ‘It is popularly assumed that legal considerations play little part in foreign affairs decision-making. Understandably, the experience of legal advisers tends to be the contrary’, Martti Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument (reissue with a new epilogue, Cambridge, 2005) 27, note 26. 65   As David Kennedy remarks: ‘Although it is easy to think of international affairs as a rolling sea of politics over which we have managed to throw but a thin net of legal rules, in truth the situation today is more the reverse. There is law at every corner’, David Kennedy, Of War and Law (Princeton, NJ, 2006) 25. 66   See, eg the reactions by the non-nuclear-weapon states, p 161 et seq. See also Fiedler, ‘Einseitige Versprechen’, n 20 above, 50, who speaks of ‘negative Grundhaltungen’, which may roughly be translated as ‘negative attitudes’.



Approaching the Topic 17

of the aforesaid, legal analysis alone may indeed help to reduce the grey areas and provide answers to several questions raised. IV  APPROACHING THE TOPIC

In choosing to work on a topic which the International Law Commission has left fraught with legal challenges, this study and its author are not driven by hubris. First, in learning from the effort undertaken by the Commission, this book will focus only on promises and not on unilateral acts of states in general. Furthermore, this author’s or, more generally speaking, any academic’s ‘loneliness’ brings with it an important advantage even compared to a group of highly distinguished experts, especially as very opposing views were present within the Commission. While having the benefit of being able to access the wealth of material provided by the Commission and to know what some of the best scholars in the field have to say about the topic, here there is no need to struggle with many others for a common opinion which, in the face of insurmountable differences, is likely to boil down to the smallest common denominator, or indeed a compromise which does not work either way. Instead, the topic of binding unilateral assurances will be presented as a whole and in a concerted manner; the fields of debate will be highlighted along the way, in trying to delimit promises as a more usable and more dependable unilateral act in inter-state relations. In order to do so, the book will start by delimiting the subject matter, that is, narrow unilateral state action down to declarations made by states which fall into the ambit of the legal framework applicable to promises. Subsequently, a ‘History of Promises’ is presented in which important cases as well as examples of state practice are briefly analysed. What follows is a chapter on the legal framework which has evolved for promises and in which an attempt is made to move from the rather shattered and confusing legal scenario sketched out in an analysis of the Guiding Principles to a more coherent legal picture. As is shown, this is possible without necessarily having to delve into considerations de lege ferenda, if only questions such as the legal basis for the obligation undertaken are clarified beyond the use of the rather elusive term of ‘good faith’. From there, various answers, such as for example how to take the addressee’s reaction into account, can be found much more easily. As the relationship, interplay and differences between a promise and the estoppel principle are important, an analysis on promises triggering estoppel is included. The final chapter provides a brief outlook and deals with the dangers and prospects of international promises and the question whether there is a need for further codification and development in this area of international law.

1 Delimiting the Subject: Promise as a Unilateral Act

T

HIS BOOK’S CENTRE of attention rests on unilateral declarations which are held to manifest a state’s will to commit itself legally to follow a certain line of conduct in the future. It is this chapter’s aim to describe and define this sort of declarations more closely. I  DRAWING FROM THE DEFINITION OF UNILATERAL ACTS

As the above-mentioned state action forms a subcategory of ‘unilateral acts of states’, it would seem methodologically sensible to start from their overall definition and subsequently identify and simply add on those characteristics which will finally single out the unilateral act of ‘promise’. The definition of unilateral acts has, however, proven extremely difficult1 and despite the International Law Commission’s efforts in this field, it remains true that ‘no all-encompassing, uniform and precise definition of unilateral acts exists’.2 In its 10 years of work there were various attempts by the ILC to define ‘unilateral acts of states’ but the issue remained unsettled till the very end.3 Yet, surprisingly, the commentary to Guiding Principle 1 says: 1   Jean-Paul Jacqué, Eléments pour une théorie de l’acte juridique en droit international public (Paris, 1972) 320 stated in 1972: ‘La notion d’acte unilatéral est actuellement très controversée et les auteurs se divisent quant à la définition de l’acte juridique unilatéral en droit international public’. 2  Wilfried Fiedler, ‘Unilateral Acts in International Law’ in Rudolf Bernhardt, Peter Macalister-Smith and Max-Planck-Institut (eds), Encyclopedia of Public International Law (Amsterdam/New York, 2000) vol 4, 1018. 3   The Special Rapporteur intended to limit his study to ‘strictly unilateral declarations’ in his First Report. A declaration of relevance was to be an ‘autonomous expression of clear and unequivocal will, explicitly and publicly issued by a State, for the purpose of creating a juridical relationship – in particular to create legal obligations – between itself and a third State which did not participate in its elaboration, without it being necessary for this third State to accept it or subsequently behave in such a way as to signify acceptance’, Victor Rodriguez Cedeño, First Report on Unilateral Acts of States, UN Doc A/CN.4/486 (1998) para 170. After some debate within the ILC and recommendations by the Working Group (see ILC, Report of the Working Group, UN Doc A/CN.4/L.558 (1998)) the following Draft Article 2 was proposed in the Second Report: ‘Unilateral legal acts of States. For the



Drawing From the Definition of Unilateral Acts 19 The wording of Guiding Principle 1, . . . seeks both to define unilateral acts in the strict sense and to indicate what they are based on.4

purposes of the present draft articles, “unilateral legal act” means an unequivocal, autonomous expression of will, formulated publicly by one or more States in relation to one or more other States, the international community as a whole or an international organization, with the intention of acquiring international legal obligations’, Victor Rodriguez Cedeño, Second Report on Unilateral Acts of States, UN Doc A/CN.4/500 (1999) para 38. In particular, the elements ‘unequivocal’, ‘autonomous’ and ‘publicly’ triggered a lively debate within the Commission whose reconvened Working Group subsequently defined the following ‘concept’ as the new starting point of the study: ‘A unilateral (autonomous) statement by a State by which such State intends to produce legal effects in its relations to one or more States or international organizations and which is notified or otherwise made known to the State or organizations concerned’, ILC, Report of the Working Group, UN Doc A/ CN.4/L.588 (1999) para 10. The Special Rapporteur, however, proposed an altered version in his Third Report one year later, reintroducing the word ‘unequivocal’ as well as, inter alia, changing the Working Group’s formulation of ‘is notified or otherwise made known’. Article 1, now officially titled ‘Definition of unilateral acts’, read as follows: ‘For the purposes of the present articles, “unilateral act of State” means an unequivocal expression of will which is formulated by a State with the intention of producing legal effects in relation to one or more other States or international organizations, and which is known to that State or international organization’, Victor Rodriguez Cedeño, Third Report on Unilateral Acts of States, UN Doc A/CN.4/505 (2000) para 80. As was to be expected, both aspects met with some criticism from within the ILC (see, eg the reactions of Gaja, ILC, Summary Record of the 2628th Meeting, UN Doc A/CN.4/SR.2628 (2000) para 21; Al-Baharna ILC, Summary Record of the 2629th Meeting, UN Doc A/CN.4/SR.2629 (2000) para 21; and Simma, ibid. 2629th Meeting, para 40). The Draft Article was nevertheless forwarded to the Drafting Committee which, however, never made any proposals or issue a report. The same Article surfaced again in the Special Rapporteur’s Fifth (largely recapitulative) Report in which it was presented to the (partially) newly comprised Commission, see Victor Rodriguez Cedeño, Fifth Report on Unilateral Acts of States, UN Doc A/CN.4/525 (2002) para 81. Although the Special Rapporteur’s Sixth Report focused largely on recognition, the ongoing problems concerning the delimitation of the topic were reflected by its rather sombre introduction: ‘It is true that it has not been clearly established that the institution of unilateral legal acts exists, and the existence of such an institution is by no means clearly defined in international law, even though there are major doctrinal and case law elements and even a certain State practice that could demonstrate the existence of the institution’, Victor Rodriguez Cedeño, Sixth Report on Unilateral Acts of States, UN Doc A/CN.4/534 (2003) para 1. The Working Group convened that year again tried to delimit the study, recommending the following: ‘For the purposes of the present study, a unilateral act of a State is a statement expressing the will or consent by which that State purports to create obligations or other legal effects under international law’, ILC, Report of the Chairman of the Working Group, UN Doc A/CN.4/L.646 (2003) 2, recommendation 1. After having focused on state practice in his Seventh and Eight Reports, the Special Rapporteur’s Ninth and final Report offered ‘Draft Guiding Principles’ and a new and short definition under Guiding Principle 1: ‘Definition of a unilateral act: A unilateral act of a State means a unilateral declaration formulated by a State with the intent of producing certain legal effects under international law’, Victor Rodriguez Cedeño, Ninth Report on Unilateral Acts of States, UN Doc A/CN.4/569 (2006) Guiding Principle 1. This definition, however, was not adopted by the Commission; instead, it agreed, in its final outcome, on the much more limited ‘Guiding Principles’. For the definition included therein see the text following this note above. 4  ILC, Guiding Principles applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with Commentaries thereto, ILC Report A/61/10 (2006) ch IX, Commentary to Guiding Principle 1, para 1, emphasis added. It reads in full: ‘The wording of Guiding Principle 1, which seeks both to define unilateral acts in the strict sense and to indicate what they are based on, is very directly inspired by the dicta in the Judgments handed down by the International Court of Justice on 20 December 1974 in the Nuclear Tests case’.

20  Delimiting the Subject: Promise as a Unilateral Act As the relevant part of Guiding Principle 1 reads ‘Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations’,5 unilateral acts in the strict sense6 would accordingly be defined as declarations publicly made and manifesting the will to be bound. The ILC points out that it was directly inspired by the Nuclear Tests cases in adopting this definition7 and it is thus not surprising that its wording comes close to describing, without however precisely defining, the very subcategory of unilateral acts with which the International Court of Justice was dealing in its ruling, ie that of binding unilateral assurances, termed ‘promises’ in international law. For the following reasons, however, it cannot be taken as our starting point and be understood to constitute the ‘all-encompassing, uniform and precise definition of unilateral acts’, the absence of which was lamented before. Whether the word ‘act’ may be substituted by the term ‘declaration’ had been debated within the ILC and several members correctly voiced their opposition,8 since ‘declarations’ are an underinclusive description of unilateral state action. While a vast majority of unilateral acts of states might indeed be found in declarations, and promises are held to be limited to declarations, not all unilateral acts are. A declaration relates to the form in which a manifestation of will is presented and can only be understood to mean an express act; any behavior that might not express yet imply a manifestation of will can hardly be considered a ‘declaration’ and would thereby be discarded as a potential unilateral act of state.9 That non-express state conduct may constitute a unilateral act is, however, far from being doubtful. The commencement of diplomatic relations is usually considered as an act of implicit recognition of the state with which formal diplomatic relations are established even though recognition as such is not declared.10 The same is true for protests which will usually but   Ibid Guiding Principle 1.   The formulation ‘strict sense’ relates back to the ICJ’s choice of words in the Nuclear Tests cases where the Court spoke of a declaration’s ‘strictly unilateral nature’. See p 12. 7   See the Commentary to Guiding Principle 1, n 4 above. 8   See, eg Pambou-Tchivounda, ILC, Summary Record of the 2525th Meeting, UN Doc A/CN.4/SR.2525 (1998) para. 1, wondering how the Special Rapporteur came to ‘single out declarations’. Alain Pellet criticised this approach numerous times, for what he himself termed a ‘firm’ opposition, see ILC, Summary Record of the 2594th Meeting, UN Doc A/ CN.4/SR.2594 (1999) para 17. 9   To hold otherwise and the word ‘declaration’ to include implicit action would either make it meaningless or the definition redundant. Because if every manifestation of will, even when taken to be merely implied in state conduct, is said to constitute a ‘declaration’, then the word ‘declaration’ might as well be dropped; the will needs to be manifested but the form is irrelevant. See also Pellet, ILC, Summary Record of the 2526th Meeting, UN Doc A/ CN.4/SR.2526 (1998) para 39: ‘Again, by confining matters to universal declarations, stress was being placed on the form. The Commission should arrive at a balanced definition of a unilateral act, which was a manifestation certainly, but a manifestation of will’. 10   On implied recognition see, eg Malcolm N Shaw, International Law, 6th edn (Cambridge/ New York 2008) 462 with further references. 5 6



Drawing From the Definition of Unilateral Acts 21

need not necessarily be included in a declaration: calling your ambassador home is a quite frequently used mechanism employed by states in this regard and warning shots by a military vessel or a jet vis-à-vis an intruder into contested waters or airspace may also effectively deliver the protest message without declaring it.11 Even a waiver, although never presumed, may according to legal doctrine be made implicitly.12 The term declaration furthermore wrongly excludes ‘mere silence’ from ever constituting a legally relevant act. While the state acting implicitly does not spell out its message of, for example, recognition or protest (and is therefore silent in this regard), it still acts; the ‘silent state’ however refrains from any physical action. The distinction is quite subtle, as legal doctrine might nevertheless infer a legally relevant will from a state that remains silent and completely inactive; it will do so in situations which warrant a protest. In these settings ‘saying nothing’ is considered as noticeable absence of protest, ie as having ‘said nothing against’ a certain situation, and is turned into and now termed ‘qualified’ or ‘eloquent’ silence.13 A state which in the face of a notorious claim persistently refrains from 11  Yet, protest is often described as an act of ‘formal communication’ and indeed by some said to be an express act, see Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, 3rd edn (London, 1957) vol 1, 552; Krzysztof Skubiszewski, ‘Unilateral Acts of States’ in M Bedjaoui (ed), International Law: Achievements and Prospects (1991) 227, para 33; Eric Suy and Nicolas Angelet, ‘Rechtsgeschäfte, einseitige’ in Ignaz SeidlHohenveldern (ed), Lexikon des Rechts, Völkerrecht, 3rd edn (Neuwied, 2001) 320. For protest not having to be explicit see Franz Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht (Zurich, 1936) 211–12; Jacqué, Eléments, n 1 above, 344 and Wolfram Karl, ‘Protest’ in Rudolf Bernhardt (ed), Encyclopedia of Public International Law (Amsterdam, 1986) vol III, 1158, who besides warning shots mentions ‘protest by implication’, eg as a byproduct of countermeasures (despite having defined protest not only as ‘formal communication’ but communication which had to be issued by, and addressed to, the parties’ official representatives); see also Eric Suy, Les actes juridiques unilatéraux en droit international public (Paris, 1962) 50: ‘n’importe quel acte peut contenir une protestation, pourvu que l’intention du protestataire y soit clairement énoncée’. Suy, however, excludes acts which result in direct hostilities or a war and which are not covered by United Nations Charter, Art 51, asking ‘comment voudrait-on protéger ses droits en violant des autres?’, ibid 52. But an act which clearly signals a state’s will not to acquiesce and to protect its rights will hardly cease to do so when crossing the line of legality. While the state’s responsibility for violating international law will, of course, be triggered in these cases, a state which resorts to force over a matter, even though it is illegal, still (unduly) expresses its will to protest and cannot be considered to have acquiesced. 12   See Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 69–70; Suy, Actes unilatéraux, n 11 above, 157–58. Jacqué, Eléments n 1 above, 342; Anne M Trebilcock, ‘Waiver’ in Rudolf Bernhardt (ed), Encyclopedia of Public International Law (Amsterdam, 1984) vol IV, 1329. 13   See ICJ, Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment of 15 June 1962, [1962] ICJ Rep 6, 23: ‘it is clear that the circumstances were such as called for some reaction, within a reasonable period, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui debuisset ac potuisset’. For qualified silence and its prerequisites see, eg Jean Paul Müller and Thomas Cottier, ‘Acquiescence’ in Rudolf Bernhardt (ed), Encyclopedia of Public International Law (1992) vol I, 14; Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 197, Suy, Actes unilatéraux, n 11 above, 66; Charles de Visscher, Problèmes d’interprétation judiciaire en droit international public (Paris, 1963) 168.

22  Delimiting the Subject: Promise as a Unilateral Act protesting,14 will hence be taken to have ‘expressed’ its tacit recognition or acceptance in the form of acquiescence.15 A state by remaining silent can therefore be held to have unilaterally manifested its will in a legally relevant way, ie to have legally acted, a fact that needs to be reflected in any definition adopted.16 The word ‘declaration’ clearly does not do so.17 Also, protest is commonly considered to constitute a unilateral act and the ILC indeed thought it was.18 But even he who expressly protests does not make a public declaration ‘manifesting the will to be bound’, quite on the contrary. While protest is a manifestation of will, it is a manifestation of a will not to be bound, not to acquiesce and is designed to hinder the creation of any legal obligation. A protesting state is in no way bound by its declaration, as yesterday’s protest in no way restrains today’s recognition should a state change its mind. Finally, it is quite surprising that the purported definition of ‘unilateral acts in the strict sense‘ does not make any effort nor even allude to the declaration’s necessarily unilateral, let alone strictly unilateral character. Not every ‘declaration publicly made and manifesting the will to be bound’ can be seen as constituting a unilateral act in the strict sense as the definition now seems to claim. Unilateral acts covered by the Law of Treaties, such as the acceptance of an offer, the accession or the reservation to a treaty, are often said to be excluded from the regime here in question because they lack a strictly unilateral character. All of them are, however, encompassed in the ILC’s ‘definition’, which uses neither the 14   For the prerequisites of a ‘duty’ to protest, see also ICJ, Fisheries (United Kingdom v Norway), Judgment of 18 December 1951, [1951] ICJ Rep 116, 139: ‘The notoriety of the facts, the general toleration of the international community, Great Britain’s position in the North Sea, her own interest in the question, and her prolonged abstention would in any case warrant Norway’s enforcement of her system against the United Kingdom’. 15   On acquiescence as equivalent to tacit recognition by conduct, see especially ICJ, Gulf of Maine (Canada v USA), Judgment of 12 October 1984, [1984] ICJ Rep 246, 305, para 130: ‘They [estoppel and acquiescence] are, however, based on different legal reasoning since acquiescence is equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent, while estoppel is linked to the idea of preclusion’, emphasis added. See also the ‘Qui tacet consentire videtur si loqui debuisset ac potuisset’ citation in ICJ, Temple of Preah Vihear, n 13 above, 23, as well as Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 196: ‘auch das Stillschweigen eines Staates [kann] unter besonderen Umständen als Anerkennung oder Verzicht ausgelegt werden’, with further references. See also Suy, Actes unilatéraux, n 11 above, 67; Pellet, ILC, Summary Record of the 2629th Meeting, UN Doc A/CN.4/ SR.2629 (2000) 137, para 69: ‘While some kinds of silence definitely did not and could not constitute a unilateral act, others might be described as an intentional “eloquent silence” expressive of acquiescence and therefore did constitute such an act’. 16   The Special Rapporteur wanted to exclude silence in particular for its alleged lack of ‘autonomy’, Cedeño, Third Report, n 3 above, 18–19, paras 126–33. On autonomy see p 55 et seq. 17   The Guiding Principles in their Preamble acknowledge that silence can result in a binding commitment for a state. For more see also p 184. 18   See, eg the outline in ILC, Report of the Working Group, UN Doc A/CN.4/L.543 (1997) 6 under ch III(iv); Victor Rodriguez Cedeño, Fourth Report on Unilateral Acts of States, UN Doc A/CN.4/519 (2001) 21–22, paras 94–96; Victor Rodriguez Cedeño, Seventh Report on Unilateral Acts of States, UN Doc A/CN.4/542 (2004) 48–70, paras 89–178.



Distinguishing Promises from Other Classes of Unilateral Acts 23

word ‘strictly’ nor ‘autonomous’ in order to restrict its scope. While abandoning the material concept of autonomy or that of a strictly unilateral act as commonly understood is possible through the application of the lex specialis principle, and indeed preferable,19 the Commission’s outcome is contradictory when it drops any reference to an act’s unilateral, let alone ‘strictly’ unilateral character in its definition, but via the Commentary claims to uphold this concept and even define what a ‘strictly unilateral act’ is. Despite its Commentary’s claim to the contrary, the adopted Guiding Principle 1 therefore neither provides a valid definition of all unilateral acts, as its focus on declarations made in order to be bound is too narrow, nor does it define unilateral declarations (much less acts) ‘in the strict sense’, as in this regard it is drafted too broadly.20 The delimitation of the unilateral act labelled ‘promise’ will therefore not start from an accepted overall definition of unilateral acts in general, for the reason that the latter still cannot be considered to have been found. While such a general definition would have been a helpful starting point, it is not a necessary prerequisite as long as the unilateral act of interest here is found to be clearly delimitable. II  DISTINGUISHING PROMISES FROM OTHER CLASSES OF UNILATERAL ACTS

Even though no final definition of unilateral acts was found within the ILC, a perusal of the various definitions proposed21 clearly shows that the Commission was not going to be concerned with all sorts of unilateral state action.22 Instead, it chose from the outset, and in conformity with legal doctrine, to focus only on acts of state which may be considered as an expression of will, carrying an intention to have a legal effect and to which international law will attribute the (apparently) intended effect of creating, preserving, altering or extinguishing a state’s legal relation to one or numerous other subjects of international law.23   On autonomy see pp 55–78.   Note also that while according to the Commentary unilateral acts in the strict sense are defined by Guiding Principle 1, the Principles’ Preamble contains another and different but no less satisfactory definition. The Preamble in its last paragraph reads: ‘[The ILC] adopts Guiding Principles which relate only to unilateral acts stricto sensu, ie those taking the form of formal declarations formulated by a state with the intent to produce obligations under international laws’. In comparison to Guiding Principle 1, the word ‘publicly’ is missing, the word ‘formal’ is introduced, and ‘manifesting the will to be bound’ is substituted by ‘formulated with the intent to produce obligations’. 21   See n 3 above. 22   On how the term ‘unilateral’ is to be understood see p 40 et seq. 23  This is not the wording adopted by the ILC but rather a description of what the Commission focused in on. An overview was provided in n 3 above of the various (working) definitions debated as well as the ‘concept’ adopted within the ILC Working Groups 19 20

24  Delimiting the Subject: Promise as a Unilateral Act Despite imposing this first filter on unilateral acts of states, the ILC quickly realised that it was still faced with a great variety of acts, a fact which made it seemingly impossible to apply a ‘one rule fits all’ approach to them. The Commission had nevertheless intended to address a vast array of state actions and, as already indicated, had anticipated overcoming the obstacle presented by the various acts’ peculiarities by dividing the draft articles into a general and a special part, the latter containing subsections, each of which were destined to deal with a typified sort of unilateral act.24 In attempting to start with the design of a general part on all unilateral acts, the Commission acted in conformity with a majority of legal doctrine, which assumes the existence of a coherent category of state action to be labelled ‘unilateral acts of states’ and encompassing acts which share enough similarities to have a common set of rules made applicable to them. Yet, in light of the great differences between the various acts of states qualifying for this category, rules applicable to each and every act can only be elaborated if they are either formulated very broadly or cover only a limited set of general questions. The following aspects fit this description and were to be contained in the General Part on which the Special Rapporteur was working till the very (abrupt) end: the capacity of states, amongst others, to formulate unilateral acts is commonly answered in the affirmative and was designed as the starting ground within the General Part. It indeed leaves little room for controversy as it is of no great regulatory use and even those opposing of 1997 and 1999. In legal doctrine, often no precise and clear-cut definition is provided but rather a description of various unilateral acts or various features a unilateral act is said to have; see, however, the definitions provided by Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 28; see also Alfred Verdross and Bruno Simma, Universelles Völkerrecht: Theorie und Praxis, 3rd edn (Berlin, 1984) 425, s 662: ‘Einseitige Rechtgeschäfte sind Willenserklärungen eines einzelnen Staates oder einer organisierten Staatengemeinschaft, durch welche die von diesen Rechtssubjekten gewollten Rechtsfolgen im Rahmen des allgemeinen Völkerrechts ausgelöst werden’ [‘ “Unilateral acts” are manifestations of will of a single state or of an organised community of states through which the legal consequences willed by these legal subjects are brought about within the general framework of international law’ (my translation). The translation is, however, slightly imprecise as the German terminology already differentiates between legal acts in general (‘Rechtsakte’), which include ‘merely’ wilful action that is important (only) as a legal fact, and acts which are manifestations of will that create the intended legal effect (ie ‘Rechtsgeschäfte’). The English language speaking simply of ‘unilateral acts of states’ would appear to cover both forms of state action, but the former is not meant when speaking of ‘unilateral acts’ in this context (see pp 38–40). It would hence be more accurate, yet quite cumbersome, to speak of a definition of unilateral legal acts ‘as understood by doctrine’]. Suy, Actes unilatéraux, n 11 above, 44 concludes by considering unilateral acts to be unilateral manifestations of will which are imputable to a single subject of international law, do not depend on another juridical act for their effectiveness, produce no obligations for third parties, and to which a norm of international law attaches the legal consequences corresponding with the state’s manifested will. 24   See, eg ILC, Report of the Working Group, ILC Report 2000, UN Doc A/55/10 (2000) 100, para 621(b); Cedeño, Fourth Report, n 18 above, which provides a classification of unilateral acts.



Distinguishing Promises from Other Classes of Unilateral Acts 25

a codification of unilateral acts can at least live with a statement indicating a state’s ability to act unilaterally. Also, the non-existence of formal requirements for unilateral acts is fairly settled, especially in the light of clear ICJ jurisprudence in this regard and the fact that international law is generally considered to impose no formal requirements unless explicit stipulations to the contrary exist.25 The question who has the competence to formulate a unilateral act on behalf of a state is equally practically uncontroversial, at least and as long as it remains limited to those state representatives mentioned by Article 7(2)(a) of the Vienna Convention on the Law of Treaties, ie ‘Heads of State, Heads of Government and Ministers of Foreign Affairs’.26 Also, any manifestation of will issued by a state is usually held to have to be without vices in order for international law to give it legal effect, just as consent in the area of treaties has to be, and hence error, fraud, corruption as well as the coercion of a state or its representative as codified for treaties in Vienna Convention, Articles 48 to 52 are usually mentioned in this regard. Similarly, there is no visible opposition to holding void a unilateral act violating a norm of ius cogens. But this is as far as it goes in relation to the bulk of unilateral acts. Even though an analogy to Articles 46 (and 27) of the Vienna Convention27 is sometimes drawn28 and might indeed be sensible (although currently 25   Referring to unilateral declarations creating legal obligations, the ICJ explicitly states the following in ICJ, Nuclear Tests (Australia v France), Judgment of 20 December 1974, [1974] ICJ Rep 253, 267–68, para 45: ‘With regard to the question of form, it should be observed that this is not a domain in which international law imposes any special or strict requirements. Whether a statement is made orally or in writing makes no essential difference, for such statements made in particular circumstances may create commitments in international law, which does not require that they should be made in written form. Thus the question of form is not decisive’. See also ICJ, Temple of Preah Vihear (Cambodia v Thailand), Preliminary Objections, Judgment of 26 May 1961, [1961] ICJ Rep 17, 31: ‘Where . . . as is generally the case in international law, which places the principlal emphasis on the intention of the parties, the law prescribes no particular form, parties are free to choose what form they please to provided their intention clearly results from it’. ILC Guiding Principle 5 hence reads: ‘Unilateral declarations may be formulated orally or in writing’. The same is true for treaties; while the Vienna Convention applies only to written treaties, it does not negate the existence of oral treaties or their legal effects, see Arts 2(1)(a), 3. 26   Again the ICJ’s jurisprudence supports this position, see ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda), New application 2002, Jurisdiction and Admissibility, Judgment of 3 February 2006, para 46: ‘the Court observes that, in accordance with its consistent jurisprudence, [references omitted], it is a well-­ established rule of international law that the Head of State, the Head of Government and the Minister for Foreign Affairs are deemed to represent the State merely by virtue of exercising their functions, including for the performance, on behalf of said State, of unilateral acts having the force of international commitments’, emphasis added. 27   Vienna Convention, Art 46 reads as follows: ‘Provision of internal law regarding the competence to conclude treaties: 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding the competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith’. 28   For more see pp 234–37.

26  Delimiting the Subject: Promise as a Unilateral Act national constitutional norms applicable to unilateral commitments by states seem to be largely lacking), it is not a norm of general applicability as long as protest is considered to be a unilateral act of state subject to the general framework, since the latter does not express a ‘consent to be bound’. Going a step further and turning towards the central question whether unilateral acts are revocable, an aspect intimately related to their binding force, will also lead us away from norms of general applicability.29 Hence, a differentiated approach is called for and with it a categorisation of unilateral state action.30 While legal doctrine has shown that it is possible to categorise unilateral state action using various criteria, such as eg their form or their 29   While recognition and waiver are considered irrevocable (for more see pp 29–33 and 34–36), the regime applicable to promises (as presented at pp 251–76) is different. Protests need not be revoked (see pp 33–34). 30   The categorisation of unilateral acts is therefore very common and present in nearly every publication on unilateral acts, and in our opinion for the above-mentioned good reasons. As to categorising unilateral acts, see, eg Antonio Cassese, International Law, 2nd edn (Oxford, 2004) 184, who mentions especially protest, recognition, renunciation, notification and promise; Jean Charpentier, ‘Engagements unilatéraux et engagements conventionnels: différences et convergences’ in Jerzy Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century (The Hague/London/Boston, 1996) 368, focusing on promise, recognition and renunciation; Vladimir-Djuro Degan, ‘Unilateral Act as a Source of Particular International Law’ (1994) 5 Finnish YB International Law 149, 184, addressing, inter alia, promise, waiver, occupation; Fiedler, ‘Unilateral Acts’, n 2 above, 1018, considering recognition, protests, renunciation, notification and ‘at times, acquiescence and revocation’ to be accepted and delimitable on the basis of customary law, for ‘promises’, however, considerable legal uncertainties remained; Wolf Heintschel von Heinegg, ‘Einseitige Rechtsakte’ in Knut Ipsen (ed), Völkerrecht, 5th edn (München, 2004) esp 238–40, MN 14–17, mentioning recognition, protest, waiver and promise; Jacqué, Eléments, n 1 above, 335, including subchapters on waiver, protest and promise plus recognition; Quoc Dinh Nguyen, Alain Pellet and Patrick Daillier, Droit international public, 7th edn (Paris, 2002) 361–62, listing notification (as a condition for the validity of all others), recognition, protest, waiver and promise; Skubiszewski, ‘Unilateral Acts’, n 11 above, 227, differentiating between recognition, protest, promise and waiver; Suy, Actes unilatéraux, n 11 above, 41, classifying acts into those which create rights, ie promise and recognition, which preserve rights, ie protest, and which abandon rights, ie waiver/renunciation; Christian Tomuschat, ‘Unilateral Acts under International Law’ in Droits et culture. Mélanges en l’honneur du Doyen Yadh Ben Achour (Tunis, 2008) 1496, referring to promise, waiver, recognition and protest as the four main categories of unilateral acts; Gian Carlo Venturini, ‘Attitudes et actes unilatéraux des états’ (1964) (II) 112 Recueil des Cours de l’Académie de Droit International de La Haye 363, identifying promise (which included the subcategory of recognition), waiver, revocation, declarations of war and others; Verdross and Simma, Universelles Völkerrecht, n 23 above, 426–31, ss 664–71, listing recognition, protest, waiver and promise, although there was some controversy on the latter. See also Cedeño, Fourth Report, n 18 above, 10–22, paras 44–100. Contra any classification, Brownlie in various statements in the Commission, eg ILC, Summary Record of the 2696th Meeting, UN Doc A/CN.4/SR.2696 (2001) para 25, as well as in Ian Brownlie, Principles of Public International Law, 7th edn (Oxford/New York, 2008) 612: ‘analysis in terms of categories of “promise”, “protest”, and the like is superficial, and tends to confuse conditioning facts and legal consequences’; similarly Camille Goodman, ‘Acta Sunt Servanda? A Regime for Regulating the Unilateral Acts of States at International Law’ (2006) 25 Australian YB International Law 43, 51. Considering the problematique of ‘promises’ to be better addressed as one pertaining to all ‘unilateral acts of states’ and an extra subcategory to be superfluous, Wilfried Fiedler, ‘Zur Verbindlichkeit einseitiger Versprechen im Völkerrecht’ (1976) 19 German YB International Law 35, 68–71.



Distinguishing Promises from Other Classes of Unilateral Acts 27

‘dependence’,31 a distinction focusing on the ‘material content’ of the act has proven most suitable when attempting to group only that sort of conduct together to which the same legal rules can be said to apply.32 And indeed, as form hardly matters when it comes to unilateral acts33 and an act’s legal effect is primarily crafted according to a state’s expressed will, it is only logical that state action with similar content, ie containing similar manifestations of will, is likely to trigger similar effects under inter­national law.34 Legal doctrine accordingly usually differentiates between the four unilateral acts already mentioned: promise, recognition, waiver and protest.35 Never intended as an exhaustive list, these four are considered as very common unilateral expressions of states, which are furthermore not embedded in a special legal framework.36 Some authors have added or subtracted categories from and to the list37 or established ‘intermediate’ categories, placing especially promise and recognition together.38 Also, ‘notification’ – the act by which a state makes a certain fact to which legal consequences may be attached known to its addressee(s)39 – has rather frequently been identified as an additional typical unilateral   On the ‘dependency’ or ‘autonomy’ of an act, see pp 55–78.   cf the categories chosen by all authors mentioned in n 30 above, and especially Skubiszewski, ‘Unilateral Acts’, n 11 above, 223. For a perusal of literature and/or various possible classifications see Suy, Actes unilatéraux, n 11 above, 33; Cedeño, Fourth Report, n 18 above, 12; Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 64. 33   See n 30 above. 34  Some scholars have distinguished amongst unilateral acts according to their ‘legal effect’ as the Special Rapporteur has termed it, see Cedeño, Fourth Report, n 11 above, paras 55, 60, 61. To do so in the context of elaborating a legal framework would, however, end in circular reasoning: if we knew an act’s legal effect, we would no longer need to group it under a set of legal norms, because then, we would already have done so. The legal effect of a unilateral act is only established by a legal norm in the first place. In order to determine an act’s effect it consequently has to be subsumed under a legal norm stipulating that legal fact A will lead to legal consequence B. The norms might dictate certain formal requirements, but in the realm of unilateral acts they do not and instead merely relate to the openly manifested will of a state. In doing so, they declare a unilateral act’s content to be of primary importance, ie the substantive will manifested by a state. By identifying ‘typical’ manifestations of will, such as the intention to undertake a new legal obligation to behave in a certain manner, to recognise or refrain from recognising a certain situation as legally valid or to renounce a right, we can hence define ‘typical’ unilateral acts, ie promise, recognition, protest and waiver. 35   Again see n 30 above. 36   As, for example, the acts of offer and acceptance are. On this aspect see the discussion on autonomy and lex specialis at pp 55–78. 37   Venturini, ‘Actes unilatéraux’, n 30 above, 392–93, for example, excludes protest, and adds declarations terminating a treaty, at 419–21, as well as declarations of war, at 423–27, to his discussion of typical manifestations of will. 38   See esp Suy, Actes unilatéraux, n 11 above, 43 and Jacqué, Eléments, n 1 above, 336. 39   This is a loose translation of the definition provided by Dionisio Anzilotti, Cours de droit international (translation from the Italian by G Gidel, Paris, 1929) 346: ‘l’acte par lequel un Etat porte a la connaissance d’un ou de plusieurs autres Etats un fait déterminé auquel peuvent se rattacher des conséquences juridiques’ and also used by Suy, Actes unilatéraux, n 11 above, 82. 31 32

28  Delimiting the Subject: Promise as a Unilateral Act expression of will of legal importance.40 All five will be briefly addressed in the following sections, thereby including only a few remarks on notification, as other authors have already convincingly shown that on a closer look it does not form a separate category of unilateral acts of states.41 Unlike books or articles dealing with the overall topic of unilateral acts, the point of this exercise is not to provide a full picture of the normative legal framework and case law existing for each specific unilateral act. The following pages, especially from chapter two on, will focus on promises only. Yet the decision to do so was not made until after the various unilateral acts had been briefly analysed, as this process reveals important differences between the four acts; differences which effectively hinder any legal analysis from providing satisfactory answers for core doctrinal matters when considering all acts en bloc. It is these characteristics which furthermore explain why answers accepted in relation to one sort of unilateral state action are not necessarily transferable to the other acts, merely on account of them sharing some common features as unilateral manifestations of a state’s will. In briefly going through the ‘standard’ categories of unilateral acts, it should also become clear what kind of unilateral acts are outside the scope of this book. A Promise A picture of the legal framework which has evolved over time for promises as well as its doctrinal underpinnings is discussed at length in chapter three. For now it is primarily the difference between promise and the other three typical unilateral acts which is of interest and requires a first glimpse at our actual subject matter. As our further enquiry will show, a promise is commonly understood to constitute a unilateral manifestation of a state’s will by which it undergoes a legally binding commitment to do or refrain from doing something in the future.42 This commitment is mir40   See in particular Pfluger, Einseitige Rechtsgeschäfte, n 11 above, esp 222–24 and the references provided by Suy, Actes unilatéraux, n 11 above, 100. For more recent publications retaining notification as a category, see, eg Cassese, International Law, n 30 above, 184 and Francisco Villagrán Kramer, ‘Les actes uniltéraux dans le cadre de la jurisprudence internationale’ in International Law on the Eve if the Twenty First Century: Views from the International Law Commission (New York, 1997) 140. 41   See the references as provided in n 75 below. 42   See, eg Cassese, International Law, n 30 above, 185: ‘Promise is the unilateral declaration by which a State undertakes to behave in a certain manner’; Charpentier, ‘Engagements unilatéraux’, n 30 above, 368, para 4: ‘c’est l’intention exprimée par un Etat (ou plus généralement par un sujet de droit international) de suivre une ligne de conduit déterminée’; Suy and Angelet, ‘Rechtsgeschäfte’, n 11 above, 320: ‘Das Versprechen ist eine Willenserklärung, mit der sich das Völkerrechtssubjekt zu einem bestimmten Verhalten verpflichtet’; Jacqué, Eléments, n 1 above, 336, ‘La promesse unilatérale . . . est l’acte par lequel un sujet de droit international s’engage à se comporter d’une manière déterminée’.



Distinguishing Promises from Other Classes of Unilateral Acts 29

rored by a subjective right on the side of the addressee, allowing the latter to claim the performance, or better fulfilment,43 of what has been promised. Whether or not a promise is revocable and, if so, under what kind of conditions, is open to a dispute in which the full scale of possibilities has been articulated, ranging from free revocability at the declarant’s will to no revocability without the addressee’s consent.44 The debate thereby reflects the continuing disagreement of why a unilateral pledge made by a state should indeed be binding upon it and compel it to act as declared despite having changed its mind. The legal situation is clearer for waiver, protest and even recognition, the reasons lying in their specific features. B Recognition Recognition is the unilateral act most akin to promises and as mentioned is sometimes even placed within one over-arching category of ‘unilateral acts which create legal obligations’.45 State practice in this area is extensive and the question is bound to arise how much alike promises and recognition really are: in other words, can we learn how to treat promises of states by looking at the history of the unilateral act named ‘recognition’? Its rather frequent use by states along with the legal effects flowing from it have led recognition to be regarded as one of the most important unilateral acts of states.46 As a learned commentator has remarked, it is however also: one of the most difficult subjects to define in international law, since it is governed by no clear-cut customary rules, and legal opinion has been divided over fundamental issues. Variations in usage from one State to another are due to the fact that recognition has been used by governments as an instrument of foreign policy, to indicate approval or disapproval when new situations arise in international relations . . . In addition, the term ‘recognition’ may denote a number of very different phenomena, so that it becomes even more complicated to establish legal criteria.47

Its complexity coupled with its frequency might at least have doubled the volume of this book, and would have turned it into a very different one were it to assume recognition to in effect be a special kind of obliging unilateral act, that is a special kind of promise, which however was not yet ‘so’ special that it should be excluded and necessitated a legal framework of its own. The latter, however, is clearly the case and thus what is said on   As, of course, promises to refrain from certain action are possible.   For more see pp 251–76. 45   See especially Suy and Jacqué as cited n 11 above. 46   See, eg Visscher, Problèmes d’interprétation, n 13 above, 190–91. 47   José Maria Ruda, ‘Recognition of States and Governments’ in M Bedjaoui (ed), International Law: Achievements and Prospects (1991) 449, paras 1–2. 43 44

30  Delimiting the Subject: Promise as a Unilateral Act the pages which follow is not per se applicable to acts of recognition. It is important to note that the features of recognition which have slowly been shaped by customary international law are special in a way which turn it into an act not only warranting the attention it has received but calling for and explaining different responses found to core questions of legal interest here, such as the roots for the compelling and restraining power on the declarant and the resulting limits of its revocation. A brief look at the legal effects of recognition should suffice to make this point: After having highlighted the difficulties encountered in pinpointing the actual meaning of recognition, José Ruda continues to define it as: a unilateral act by which a state acknowledges the existence of certain facts, which may affect its rights, obligations or political interests, and by which it expressly states or implicitly admits that these facts will count as determining factors when future legal relations are established, on the lines laid down by the same act. In essence, recognition is the acceptance by a state of a new state of affairs, which may have legal consequences.48

Recognition thereby is composed of two intertwined but distinguishable elements which in combination determine its legal effect. Through the act of recognition a state makes reference (1) to a factual situation which it (2) accepts as existent with all the legal repercussions flowing therefrom. The possible objects of recognition are diverse and might range from legal entitlements or statuses, via border lines and governments as a state’s (effective) representative, to whole states being accepted as such. Whether recognition actually does its bit in creating its very own object and has constitutive effect or is of a mere declaratory nature has long been debated in relation to the recognition of states. In its delimitation from a promise it is surely helpful but not absolutely mandatory to take a side in this discussion,49 while more important to note that even those arguing in favour of the constitutive theory do not consider the act of recognition to actually create the physical set of facts to which the act of recognition refers. A state that is being recognised will still have to comply with certain features in the ‘real world’ to warrant its name, but will, in the opinion of the constitutional theory, only receive international legal personality   Ibid 449, para 3.   As is often pointed out, the declarative theory is more consistent as a legal theory, even though the political impact and practical importance of a state’s recognition by its peers cannot be disregarded. For a short critical analysis of the constitutional theory see PK Menon, The Law of Recognition in International Law: Basic Principles (Lewiston, 1994) 12–18. The position of, inter alia, Charles de Visscher, stressing recognition’s double nature, seems accurate: ‘Recognition is declaratory in the sense that it acknowledges the validity of a situation or a claim. It is constitutive in so far as it puts an end to a politically uncertain state of affairs, replacing the latter by a clear-cut situation in law’, Visscher, Problèmes d’interprétation, n 13 above, 193, English translation taken from Ruda, ‘Recognition’, n 47 above, 455. See also Suy, Actes unilatéraux, n 11 above, 206. 48 49



Distinguishing Promises from Other Classes of Unilateral Acts 31

through recognition.50 In other words, not only from the fairly dominant declaratory point of view but even when taking a constitutive stance on recognition, the act makes reference to a factual situation whose existence is not conditioned upon the will of the declarant (be it the state as an international person for those following the declaratory view or merely factors such as government, territory and effective control, an ensemble which only through additional recognition achieves legal personality for advocates of the constitutive theory). Recognition hence establishes a nexus between a manifestation of will and a set of facts by making the situation accepted opposable to the state, hindering it thenceforth from effectively negating the existence of whatever it chose to recognise.51 Unlike promises, whose effects of creating a new obligation are stipulated in reference to the will manifested, recognition has legal features which are explainable only by the connection between the will manifested and the external and not ‘will-related’ set of facts to which it refers: First, legal doctrine quite regularly assumes recognition to have retroactive effect dating back to the moment when, for example, a state started going about its business, ie fulfilled the traditional elements, or a government was effectively established.52 While this aspect has rightly been 50   Whether or not the traditional criteria are relied upon in defining the physical existence of a state, or reference is simply made to ‘states’ without any further description within the constitutive theory, is less important. As Lauterpacht recalls in his analysis, Jellineck, despite providing the first modern design of the constitutive theory, considered a part of organised humanity to enter ipso facto into the general community of states, while emphasising that recognition was necessary in order to become part of the judicial community of states. See Hersh Lauterpacht, Recognition in International Law (New York, 1978, reprint of Cambridge, 1947 edn) 38. Lauterpacht, himself advocating the constitutive theory in connection with a duty to recognise a factually existing state, is very clear in this regard: ‘A state may exist as a physical fact. But it is a physical fact which is of no relevance for the commencement of particular international rights and duties until by recognition – and by nothing else – it is lifted into the sphere of law, until by recognition it has become a juridical fact. Recognition declares the existence of a physical, not of a legal, phenomenon. This explains why, although declaratory of a fact, it is at the same time constitutive of legal consequences’, Lauterpacht, Recognition, 75, s 32, ‘Recognition as Declaratory of Facts and as Constitutive of Rights’. 51   It is sometimes said that a state is ‘estopped’ from doing so or even that recognition produces ‘estoppel’, see, eg Suy, Actes unilatéraux, n 30 above, 208, citing and relying on Georg Schwarzenberger, ‘The Fundamental Principles of International Law’ (1955) (I) 87 Recueil des Cours de l’Académie de Droit International de La Haye 253. Yet, while it is correct that as with estoppel a state is not heard when it makes a claim contrary to what it has recognised before, it would, at least nowadays and after some ICJ jurisprudence, be misleading to speak of ‘estoppel’ in this context, as the latter requires detrimental reliance on the part of the addressee in order to have its legal effect. For more on this see p 279 et seq. But no such requirement exists for acts of recognition in order to have their ‘estoppal’ effect. 52   See, eg Lauterpacht, Recognition, n 50 above, 59–60; Ti-Chiang Chen, The International Law of Recognition with special reference to Practice in Great Britain and the United States (London, 1951) 133–86; Menon, Recognition, n 49 above, 208; Clive Parry, John P Grant and J Craig Barker, Parry and Grant Encyclopaedic Dictionary of International Law, 2nd edn (Dobbs Ferry, NY, 2004) 424, under ‘recognition, retroactivity of’, with further references.

32  Delimiting the Subject: Promise as a Unilateral Act identified as problematic for both theories,53 it is accepted by both and clearly relates back to recognition’s characteristic of establishing a link between an existing fact and a legally relevant will. Also, and importantly, (de jure) recognition is usually considered nonrevocable, at least unless the situation ‘on the ground’, ie the factual situation recognised, has changed.54 Indeed, non-revocability in the area of recognition based on a change of politics, that is a ‘change of heart’, is easier to justify than it is for unilateral promises, as a state trying to revoke an act of recognition in these scenarios would suddenly argue that whatever it admitted to exist has now ceased to do so, even though the (physical) fact recognised has not been altered.55 To allow for such a clear venire contra factum proprium would strongly destabilise international relations and the law decides against doing so. The situation with regard to promises is different, as will be seen, and it is so primarily for two reasons. Not only are promises, unlike acts of recognition, not backed by a customary rule negating their revocability, but also, the message conveyed by a promise is different than that communicated by an act of recognition. While in the latter case reference is made to a fact or facts, the existence of which might have been under dispute up until now, but whose continuing existence can be tested whether a state continues to claim their existence or not, a promise lacks this external point of reference and is visibly based only on a state’s free choice to commit itself. A state which has yesterday claimed to want to fulfil obligation X in the future does not per se act contradictorily if it now says that it does not any longer want to do so and has changed its mind. Whereas recognition therefore might need a change of external facts in order to be revoked, promises which are in theory a manifestation of a state’s will to newly commit itself, will be more easily susceptible to change if the internal decision alone has been altered. As will be seen, this does not mean that promises are freely revocable, as limitations 53  According to Lauterpacht, Recognition, n 50 above, 59, this principle is ‘obviously an embarrassment of the declaratory view’, as a retroactive legal effect had to presuppose a constitutive legal effect in the first place; contra Chen, Recognition, n 52 above, 186, according to whom: ‘The very idea that legal effect can be given to acts of previously non-existent entities is fatal to the constitutivist contention’, at 186. 54   See, eg Menon, Recognition, n 49 above, 165; Lauterpacht, Recognition, n 50 above, 349; Heintschel von Heinegg, ‘Einseitige Rechtsakte’, n 30 above, 239, MN 14. See also Institut de Droit International, ‘Resolutions concerning the Recognition of New States and New Governments’ (1938) 30 American J International Law, Supplement 185, art 5. 55   This aspect complicates arguing for revocation especially for followers of the declarative theory. For those considering recognition to be not only constitutive but also an act of total discretion, contra Lauterpacht, it is easier and the questions of revocability would be very much those raised in regard to promises. Proponents of the latter view will, however, need to overcome the incoherencies in law caused thereby and face the criticism that ‘the very idea that the legal personality of a State or the representative capacity of its government should be dependent on the continued good will of other States is deemed to be derogatory to the independence and the dignity of the State and inimical to the stability of international relations’, Lauterpacht, Recognition, n 50 above, 349. See also the short and concise critical evaluation of the constitutive theory provided by Menon, Recognition, n 49 above, 12–18.



Distinguishing Promises from Other Classes of Unilateral Acts 33

on free revocability will usually arise in order to protect the addressee’s reliance. The act of recognition therefore rightly carries a label of its own and can look back on a history and customary backing only applicable to it and not to acts of promises. The normative analysis in chapter three is therefore strictly limited and not, at least not directly, applicable to acts of recognition just as, vice versa, the answers found to legal challenges in the realm of recognition cannot simply be transplanted to that of promises. C   Protest Protest is an act of state,56 that at least the majority of authors57 dealing with the subject consider to constitute a unilateral act as understood by doctrine, which would make it a unilateral manifestation of will to which the law attributes a state’s (apparently)58 willed legal effect of creating, altering or extinguishing its legal relations with other states. This ‘definition’, however, needs to be altered by proponents of protest as a unilateral act, who will need to add a protest’s asserted legal effect to the list and hence include acts ‘preserving’ legal rights amongst unilateral acts of states.59 Even so, protest will undoubtedly remain in a category of its own and much more so than the other three typical state acts of waiver, recognition and promise, as it is the only form of state action which does not bind its author in any way.60 It is precisely in order not to be bound that a state is said to protest and thereby declare its opposition to a certain situation and take any possible interpretation of its conduct as signalling acquiescence off the table. Protest has consequently been labelled the ‘opposite of recognition’61 as through it a state manifests its will not to recognise whatever it is protesting against. With protest, the issue of interpreting a state’s behaviour as expressing an intention to be bound therefore does not arise. Also, no legal framework for its revocation is necessary as there is no problem when a state changes its mind; it may freely recognise what it just protested against. 56   It can, of course, as with all other unilateral acts discussed here, be issued not only by a state but also by any other international legal person. We are, however, concentrating on states for the reasons briefly addressed below, p 78. 57   See n 30 above. 58   As a state’s will is deduced from its actions. 59   It is in our eyes contradictory to retain the afore-mentioned description of the effects a unilateral act has (ie to create, alter or extinguish legal relations), rightly reject notification on this basis but consider ‘protest’ to fit the definition, as eg Suy and Angelet, ‘Rechtsgeschäfte’, n 11 above, 319–21, do. See also n 63 below. 60   See the text accompanied by and following n 18 above. 61  See, eg Skubiszewski, ‘Unilateral Acts’, n 11 above, 227, para 33; Heintschel von Heinegg, ‘Einseitige Rechtsakte’, n 30 above, MN 15, ‘actus contrarius’; Verdross and Simma, Universelles Völkerrecht, n 23 above, MN 667; Visscher, Problèmes d’interprétation, n 13 above, 188.

34  Delimiting the Subject: Promise as a Unilateral Act While this is not to say that protest is incapable of bringing about challenging legal questions, especially when seen in relation to acquiescence,62 these will be structurally very different from those coupled to manifestations of will creating legal commitments, and it is only the latter on which we can concentrate here.63 D Waiver/Renunciation Through a waiver or a renunciation (either terminology is commonly used),64 a state gives up its right or claim which subsequently either ceases to exist or is transferred to another subject of international law.65 Whether the latter case really involves not only a transferral but a distinguishable waiver on the side of the ceding subject, as is sometimes assumed,66 is 62  The legal framework for protests, as such, is however rather clear. Accordingly, Tomuschat sees no harm resulting from its exclusion from the Guiding Principles, Tomuschat, ‘Unilateral Acts’, n 30 above, 1497. 63   While it is surely a manifestation of will, there is actually a lot to say against the assumption that protest also constitutes a unilateral act in the sense used by legal doctrine. Unlike waiver, promise and recognition, it is not simply by manifesting its will that a state has the capability of producing any legal effect. Even where a state intends to ‘preserve its rights’ by protesting (cases in which a state merely protests to criticise another state’s behaviour, eg a brutal crackdown on a demonstration in a foreign country, have to be discarded from the outset), a protest is only understood to create its alleged legal effect in situations in which the law would otherwise consider a state to have signalled its consent by remaining silent. But even in these scenarios a state, by signalling its non-acceptance, does not alter the legal relations to other states, it merely forestalls any alteration that, with time, could have been brought about through its acquiescence. It usually even has to protest repeatedly in order for it to be heard and, if possible, has to back its own protest by other permissible measures, including the pursuit of open legal venues, in order for international law to take it seriously (no mere ‘paper protests’). While its preserving function is claimed to be its legal effect, the law appears to be more concerned with acquiescence as equivalent to tacit recognition by conduct (a unilateral act) in the above-mentioned scenarios, than it is with protest as a manifestation of will having direct legal effect. It is acquiescence which brings about the alteration of international legal relations and protest will be considered as a legal fact weighing against it. Its task has hence been described as to ‘rebut the presumption of acquiescence’, Karl, ‘Protest’, n 11 above, 1158; and even in the scenarios where it is of legal relevance it is therefore in this writer’s opinion primarily of factual importance, that is, it is a manifestation of will which the law will take into consideration but not a manifestation of will that the law allows to determine a legal effect by itself. On this important differentiation see also pp 38–40. Future codification attempts should hence focus more on acquiescence as an expression of a state’s will (consent/recognition) and take protest merely as an indicator of its absence. See also Venturini, ‘Actes unilatéraux’, n 30 above, 393. 64  The French word is ‘renunciation’. Whether the difference in terminology is intentionally used in order to indicate subtle differences is doubtful. Trying to distinguish, Lasa Oppenheim, Robert Jennings and Arthur Watts, Oppenheim’s International Law, 9th edn (Harlow, 1992) vol 1, Introduction and Part 1, 1195, s 580, note 1, who nevertheless acknowledge ‘it being largely a matter of usage and convenience which term is customarily employed in particular circumstances’. 65   See, eg Trebilcock, ‘Waiver’, n 12 above, 1328. 66   See Suy, Actes unilatéraux, n 11 above, 155–57, relying on Cavaglieri’s distinction between ‘rinuncia abdicativa’ and ‘rinuncia translativa’.



Distinguishing Promises from Other Classes of Unilateral Acts 35

doubtful at best67 but will not be dwelled upon, as a cession necessarily calls for a ceding and an accepting party and hence a bilateral, contractual exchange which takes it into the realm of the law of treaties.68 Through a unilateral waiver, a state, however, alters the legal landscape by extinguishing the right it has renounced;69 once gone, it is no longer in a state’s power to revive it and a waiving state is, as a result, considered not to be able to revoke its waiver once effective.70 The unilateral act of waiver is therefore at least in theory clearly distinguishable from a unilateral promise to no longer make use of a right. While the latter merely leads to an obligation not to use what still remains in the possession of the promisor, the former actually extinguishes the subjective right in question. A waiver therefore, strictly speaking, does not merely create a legal obligation.71 While it is true that a state waiving a right will have to respect its own decision and will from then on no longer be in a position to invoke the right it waived, this situation is not so much the result of a special obligation created by the waiver, but a logical legal consequence of it no longer being the holder of the right it waived. It is henceforth compelled to refrain from invoking this right no more or less than any other state which is not, be it only ‘not any more’, the holder of the right in question. The reason why a state may not make use of the right it waived after it has done so is therefore not the fact that through its waiver it has created a special obligation not to do so, but rather, that it no longer possesses what it would like to invoke. This is the legal and indeed binding effect its waiver has had.72 Due to its far-reaching consequences, a waiver according to legal doctrine is never to be presumed, and while waivers are generally described as not having to be made by an express declaration, a state’s conduct is said to have to be an unequivocal manifestation of its will to actually renounce a right of which it is in possession.73 Hence, in cases of doubt a   See also Venturini, ‘Actes unilatéraux’, n 30 above, 415.   See Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 254; Suy, Actes unilatéraux, n 11 above, 155–56. 69   See Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 271; Suy, Actes unilatéraux, n 11 above, 148; Jacqué, Eléments, n 1 above, 343. 70   See Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 271; Suy, Actes unilatéraux, n 11 above, 187; Jean-Didier Sicault, ‘Du caractère obligatoire des engagements unilatéraux en droit international public’ (1979) 83 Revue Générale de Droit International Public 633, 639. A waiver may, of course, be void or voidable if the will manifested was somehow compromised, eg by duress, fraud, corruption, etc. 71   Of other opinion Cedeño, First Report, n 3 above, 13, para 63; Cedeño, Fourth Report, n 18 above, 18–19, para 84. Also Tomuschat, ‘Unilateral Acts’, n 30 above, 1497. 72  The German speaking lawyer might take recourse to the distinction between ‘Verpflichtungs-’ and ‘Verfügungsgeschäft’, here we are in the presence of the latter. See also Biscottini as cited in Suy, Actes unilatéraux, n 11 above, 186: ‘la renonciation a un effet réel et non pas obligatoire puisque la manifestation de volonté abdicative n’entraîne pas l’obligation de ne plus faire valoir ses droits, mais l’extinction immédiat de ceux-ci’. See Introduction, n 16 on the question whether the Guiding Principles are applicable to waivers. 73   See Suy, Actes unilatéraux, n 11 above, 157–64 with further references. 67 68

36  Delimiting the Subject: Promise as a Unilateral Act declaration is likely to be read as a promise not to use a right rather than as a waiver of the right in question.74 Although a waiver is therefore a unilateral manifestation of will that has important legal effects, it is thus not simply a special form of promise, that is, an act obliging a state vis-à-vis an addressee to comport itself in a certain manner and granting the latter a right it may invoke. It compels a state not through a special obligation but by extinguishing the right it renounced and is for that reason considered irrevocable. These features do not allow us to consider the reasoning, much less the legal framework which is applicable to it, to be simply transposable to promises, just as the law on promises does not govern a state’s waiver. E  A Note on Notification In conformity with a number of authors who have written on the topic, including the Special Rapporteur, notification cannot be considered as constituting a unilateral act in the legal sense described above and consequently no problems in distinguishing it from promises will arise. As there seems to be a growing consensus on this point,75 the following passage highlights mainly an aspect within the debate that is usually not clearly expressed: the legal importance (yet not independent legal significance) of notification as a state’s will to convey information to another state. Notification is the act by which a state makes a certain fact known to its addressee.76 In order to qualify as a unilateral act as understood by legal doctrine, the law would have to attach legal significance to the will manifested within the notification by a state and not merely to the knowledge created thereby. These are two important aspects that need to be held apart. The knowledge of whatever was notified to the addressee may itself have significant legal consequences; international law might, for example, require a protest against the notification’s content or require a state to act if some ecological hazard or atrocity was notified to it in order to prevent its liability. In these cases, however, legal consequences are not   See also Jacqué, Eléments, n 1 above, 343.   Arguing against notification as a unilateral act, Suy, Actes unilatéraux, n 11 above, 103–07; Venturini, ‘Actes unilatéraux’, n 30 above, 392; Jacqué, Eléments, n 1 above, 336. For authors in favour of notification as a unilateral act see n 40 above. 76   The definitions provided by different scholars vary slightly. The one provided by Anzilotti (‘an act by which a State makes a certain fact to which legal consequences can be attached known to one or several States’, my translation) is relied upon by Suy, Actes unilatéraux, n 11 above, 82, who provides further references, including authors that require a formal act. Oppenheim, Jennings and Watts, International Law, n 64 above, 1193, s 578, write: ‘By notification states communicate to other states certain facts and events of legal importance’. Quite narrow is the definition used by Cassese, International Law, n 30 above, 184: ‘Notification is the act by which a State makes other States cognizant of a certain action it has performed’. 74 75



Distinguishing Promises from Other Classes of Unilateral Acts 37

attached to a state’s manifested will to notify the recipient, ie notification as a unilateral act, but directly to the knowledge that was created through the act of notification.77 This knowledge might have been brought about through other means – a widely published newspaper article or a headline in the news can have the same result. Official notification might, of course, be important and helpful in trying to prove that a state did have knowledge of a certain fact. Again however, and independent from the question whether notification actually shifts the burden of proof to the notified state,78 it is not the manifestation of a will to notify that will trigger the legal effect in question but merely the fact that a letter containing certain information has been sent to state X on day Y. Nevertheless, a state’s manifested will to inform another state, ie wanting it to take knowledge of a certain fact, may and will often also be of legal importance, yet not of an independent one. Especially in connection with unilateral acts, the will to notify another state of, for example, a promise or an act of recognition, forms an integral part of the actual performance of that respective unilateral act itself. In other words, intentional notification in these scenarios will serve as the manifestation of a state’s will to be bound or assume the legal consequences of whatever has been notified.79 The will to notify the recipient in these scenarios, however, remains completely intertwined with the will to actually undertake the unilateral act of which the addressee is informed, which leads us back to the categories mentioned above. Notification understood as a legally rele­ vant manifestation of will consequently does not produce a legal effect by its own and is hence not a category of unilateral acts proper. To recapitulate: acts of recognition, waiver and protest can hence be held apart from promises and indeed, they have to be kept apart. All three differ in important ways. Protests are not binding and do not need to be revoked; recognition cannot be taken back, especially as it is understood and relied upon as a state’s acknowledgement of the existence of a set of facts in ‘the real world’, whereas waivers are held to be irrevocable as they extinguish the right in question. Promises are different, and especially the limits on their revocability cannot be inferred from the will manifested, unless the declaration includes an 77   Emphasising the fact that notification conveys information which by itself is of legal importance and triggers the legal consequences usually attributed to notification as such, Suy, Actes unilatéraux, n 11 above, 106; Venturini, ‘Actes unilatéraux’, n 30 above, 393–94; Jacqué, Eléments, n 1 above, 335–36. 78   For Venturini, a formal notification is merely one proof amongst others to prove know­ ledge on the part of the addressee and does not give rise to a legal presumption, Venturini, ‘Actes unilatéraux’, n 30 above, 394. 79   Were a state, for example, to promise a certain line of conduct via a written declaration, its will could hardly be assumed to have been manifested if the document, before being transmitted, was stolen and only thereby brought to the knowledge of the addressee. The will of making a commitment known to the addressee(s) is a necessary part of any manifestation of a will to undergo a commitment.

38  Delimiting the Subject: Promise as a Unilateral Act express stipulation in this regard. The question will hence be what kind of default rule international law imposes on such declarations.80 III  A MANIFESTATION OF WILL TO CREATE A LEGAL OBLIGATION

The legal theory discussed in chapter three comes into play only – and this will constitute a crucial point – if a state is considered to have manifested its will to oblige itself legally.81 The obligation furthermore consists of a commitment vis-à-vis one or several addressees to comport itself in a certain manner in the future. The element of a manifested will to undertake a legal commitment first of all distinguishes legal action from ‘merely’ politically relevant state conduct. Drawing the line between the two is often difficult in practice; nevertheless, the international legal order assumes a clear difference to exist between the display of political goodwill through statements of intent, on the one side, and undertakings which will create a legal tie, on the other. While the former, as any ‘gentlemen’s agreement’, can be of major importance and build up a strong pressure of adherence, only the latter are enforceable before legal institutions. Legal obligations are, despite many ‘critical’ claims to the contrary, also understood as a tool to reliably narrow a state’s future leeway and make its conduct more foreseeable than merely political undertakings would. Not adhering to a legal commitment might lead to a very general distrust of a state’s loyalty to the rule of law, significantly damage its reputation as a reliable partner and open an avenue for various countermeasures, even in unrelated fields as permitted by law. The unilateral and legally relevant manifestation of will to be bound is not to be confused with unilateral and legally relevant state conduct which is merely wilful. Through a unilateral act, a state is understood to trigger exactly the legal consequences it wanted to achieve as the law determines these in direct reference to the state’s declared will. The incorporation of an armed group into a state’s army, the occupation of a territory or the commencement of hostilities, on the other hand, are examples for unilateral and wilful state actions with effects under international law. But here, the situation created through such wilful action becomes a legally relevant fact itself without the law determining the ensuing legal   This question is addressed in detail at p 251 et seq.   This is true notwithstanding the fact that it is in the end not a state’s will which turns a declaration into a binding commitment but the addressee’s (presumed) reliance on a declaration made. Reliance is, however, merely protected – and only in these cases will it result in a legal obligation for the declarant – if a state is considered by a reasonable person in the position of the addressee, ie ‘objectively’, to have manifested its will to be legally bound. See pp 194 and 207 et seq. 80 81



A Manifestation of Will to Create a Legal Obligation 39

consequences in direct reference to a state having willed them.82 There is no manifestation of a will to be bound, much less to be obliged and the legal effects are not determined by a state’s manifested will to create, abolish or modify legal ties vis-à-vis an addressee.83 This distinction is clear-cut in many cases but it can become quite subtle. A declaration of war has, for example, been considered to fall outside the category of unilateral acts as the legal consequences of such a declaration were predetermined by an international legal rule and not defined in relation to a state’s will.84 It can, however, hardly make a difference whether a manifestation of will includes a long list of intended consequences or merely a technical term which in the legal community is understood to encompass such a list and sets an according legal regime in motion. Being a unilateral manifestation of will to which international law directly attaches the intended legal consequences vis-à-vis its addressee, ie creating a state of war, it cannot be discarded on these grounds.85 It will, however, not figure prominently on the following pages as the rules pertaining to it are nearly exclusively those of the lex specialis regime of international humanitarian law and furthermore it cannot be seen as a declaration intended to (primarily) undertake a legal obligation in form of a claimable commitment, ie a ‘promise’, as of interest here. State action infringing another state’s rights is also wilful and often unilateral. International law, however, again does not define the resulting obligations in the field of state responsibility by referring back to the acting state’s demeanour as having displayed its will to undertake any of the incurring obligations. Quite on the contrary, state action triggering responsibility is typically wilful but the legal consequences are usually very unwelcome and by no means determined on the basis of being (apparently) willed by the acting state. These acts are therefore not per se unilateral acts as understood by doctrine, much less promises as defined here, but it is also wrong to exclude them a priori, as is sometimes done.86 Nothing of the afore-mentioned implies that an act which constitutes a promise ceases to do so once it is held to infringe international law and 82   As the occupation of ‘virgin territory’ included not only the wilful act of taking the latter into effective possession but also a manifestation of will to incorporate it into the state, Pfluger considers it to be a mixed act, Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 288. 83   Suy differentiates between ‘faits juridique’ and ‘actes juridiques’, Suy, Actes unilatéraux, n 11 above, 17. So do others, see Jean Charpentier, La reconnaissance internationale et l’évolution du droit des gens (Paris, 1956) 367, para 2; Venturini, ‘Actes unilatéraux’, n 30 above, 407. 84  Suy, Actes unilatéraux, n 11 above, 20: ‘Une manifestation de volonté comme la déclaration de guerre, dont les effets sont déterminés d’avance par la norme et sans rapport avec la volonté, ne sont pas pour nous des actes juridiques au sens propre du mot.’ 85   For more see Venturini, ‘Actes unilatéraux’, n 11 above, 423–27. 86   The Special Rapporteur wanted to exclude acts triggering state responsibility, first because the ILC was considering the topic separately, and then on the basis of a lack of autonomy, see especially Cedeño, Second Report, n 3 above, paras 4–10. On autonomy see p 55 et seq.

40  Delimiting the Subject: Promise as a Unilateral Act to invoke state responsibility.87 As with acts of state responsibility and the law of treaties, both regimes must be kept apart and may be simultaneously applicable since they regulate different subject matters. IV UNILATERAL

It is only to unilateral manifestations of a will to undergo a legal commitment to which the doctrine described in the following chapters is applicable. The term unilateral has been traced back to its Latin origin from ‘unus’ meaning ‘one’ and ‘latus’ standing for ‘side’.88 A unilateral act is thereby clearly distinguishable from a bi- or multilateral act (a treaty) where only through an agreement,89 sometimes also referred to as a ‘meeting of minds’ (ie a collaborative effort of at least two parties and with each manifesting its will, that is, consenting),90 can the willed legal effect be brought about. In a treaty situation, be it bilateral or multilateral, a state undertakes a legal obligation only if the other side agrees to his offer to undertake an obligation, that is, accepts it. Without the addressee’s supplementary manifestation of will, the obligation offered will hence not be brought about. While in written and usually heavily negotiated treaty texts (or lengthy back and forth communication) the final document might more often than not no longer reflect a structure of offers and acceptances, the obligations stipulated within the text will nevertheless only arise vis-à-vis another state if that state consents to the text; on the other side of the same coin, only then will a consenting state be able to invoke any of the rights granted within the treaty.91 On an abstract and simplified level, the treaty situation may therefore be pictured as shown in Figures 1.1 and 1.2.

87  Whether the mere undertaking of an obligation contrary to international law will already trigger a state’s responsibility (ie without it having already acted in fulfilment of the promise made), will need to be analysed on a case by case basis. Such situations are, however, conceivable as a state, for example, might by promising a certain line of conduct which would violate its international obligations force another state to react in a way which is detrimental to the latter. 88   See Jacques Dehaussy, ‘Les actes juridiques unilatéraux en droit international public: à propos d’une théorie restrictive’ (1965) 92 Journal du droit international 41, 52; Sicault, ‘Engagements unilatéraux’, n 70 above, 640. 89   James Brierly made it clear that defining treaties as ‘agreements’, as the Vienna Convention has chosen to do, ‘serves sufficiently to exclude unilateral declarations’, James Brierly, Report by J.L.Brierly, Special Rapporteur for the Law of Treaties, UN Doc A/CN.4/23 (1950) reproduced in (1950) II YB International Law Commission 227, para 20. 90   For ‘international agreements concluded between States in written form and governed by international law’ see Vienna Convention, Arts 2(b), (f), (g), 11. 91   For treaties granting rights to third states, see pp 45–49.



Unilateral 41 state A → Manifestation of Will → state B state A ← Manifestation of Will ← state B = Treaty Figure 1.1  Bilateral treaty

The same structure operates in a setting where more than two parties establish a contractual relationship; here, again, doctrine assumes an agreement as a consensual bond established between all parties participating in the treaty.

state A



state C

= Treaty

state B

state D

Figure 1.2  Multilateral treaty (here four parties)

The unilateral act, on the other hand, is of legal effect without a second party’s wilful action; there is only one manifestation of will to which the apparently willed legal effect is immediately attached (see Figure 1.3). state A → Manifestation of Will → state B (or numerous addressees) Figure 1.3  Unilateral act

A unilateral act is therefore not to be misunderstood as constituting an act which has no addressee(s); it is not a manifestation of will uttered by a state to itself. What makes it unilateral is not the absence of an addressee but rather the fact that the addressee’s manifestation of will is not necessary – there is no act of acceptance, no expression of consent to the act of communication received – in order for the obligation assumed to become legally effective. While this aspect seems rather clear and has led to no visible opposition, the term ‘unilateral’ has nevertheless led to considerable disagreement not only amongst scholars in general but especially within the ILC. There are in principle the following two aspects which have spurred the debate and need to be kept apart, both remaining equally controversial. A  Collective State Action Although possibly contrary to natural intuition, the translation of unus latus as ‘coming from one side’ turned out not to suffice and solve the

42  Delimiting the Subject: Promise as a Unilateral Act ‘formal’92 question that is raised here, asking how many subjects of international law may be found on the side from which the promise, or, generally speaking, unilateral act emanates. The Special Rapporteur provided the following answer: As accepted in most doctrine, a unilateral act should be understood as an act which is attributable to one or more States and which creates a new legal relationship with a third State which did not participate in its elaboration. More precisely, a unilateral act is an expression of will which is attributable to one or more subjects of international law, which is intended to produce legal effects and which does not depend for its effectiveness on any other legal act.93

And: With regard to form, the doctrine generally considers that what is involved is a single expression of will on the part of one or more States. Unilateral acts may accordingly be classified as individual or collective. The fact that there is a single expression of will does not mean that the subject of law that performs it is also single. To think otherwise would preclude recognition of the variety of strictly unilateral acts. The fact that there is a single expression of will means that the author or authors are placed on the same side of the legal relationship to which the act gives rise. It also means that the elaboration of the act is attributable to them.94

In this opinion, the manifestation of will creating legal effects therefore does not have to stem from a single subject of international law. Such a ‘formal requirement’ is considered superfluous as an act is held to be unilateral not on account of the number of its authors but on account of a manifested will becoming legally effective vis-à-vis a party that is not involved in its elaboration. In other words: as a result of being allowed to remain uninvolved and passive while still receiving a right, the act granting the latter is said to be unilateral, despite being declared by numerous subjects of international law; the two-sidedness which is characteristic of the treaty sphere, where the meeting of wills between the ‘promisor’ and the ‘promisee’ is necessary in order to give birth to an obligation and the corresponding right, is lacking. The promisee therefore remained situated ‘on the other side’ of the ‘unilateral act’ irrespective of the number of subjects granting a right. While this view is indeed held by a number of authors,95 the Special Rapporteur is a bit quick to assume that it is really 92  Suy, Actes unilatéraux, n 11 above, 26, refers to this aspect as the ‘élément formel’. So do others, see, eg Jacqué, Eléments, n 1 above, 322. 93   Cedeño, First Report, n 3 above, para 133, emphasis added. 94   Ibid para 134, emphasis added. 95   See Dehaussy, ‘Théorie restrictive’, n 88 above, 52, who, relying on Eisenmann’s courses in (French) administrative law, was apparently amongst the first to claim ‘la question de savoir si un acte est plurilatéral ou unilatéral se ramène à celle-ci: les normes (au sens le plus large de ce terme) qu’édicte un acte juridique vont-elles régir exclusivement les rapports mutuels de ses auteurs ou, au contraire, des rapports juridiques concernant d’autres sujets de droit que son ou que ses auteurs?’. Relying on Dehausy but being more precice, Sicault, ‘Engagements unilatéraux’, n 70 above, 640: ‘En effet, ce n’est pas le nombre des auteurs



Unilateral 43

generally accepted that a unilateral act may emanate from more than one subject of international law. A number of scholars, including some of the more influential ones who have studied this area in detail, merely agree to differ, as for them, unilateral acts are only those stemming from a single subject of international law.96 The ILC put a question mark on the existence of collective acts in 199697 and continued to debate the matter. The report of the 1997 Working Group addresses the issue as follows: The fundamental characteristic of unilateral legal acts is, logically, their unilateral nature. They emanate from one single side (from the Latin ‘latus’), in other words, from one or several subjects of international law acting ‘unilaterally’ and the participation of another party is not required. This characteristic, which is to be seen both in the structure and in the object and content of the act, leaves ‘plurilateral’ international legal acts, such as treaties, outside the scope of the study. But it does not exclude so called ‘collective’ or ‘joint’ acts, inasmuch as they are performed by a plurality of States which do not intend to regulate their mutual relations by this means, but to express, simultaneously or in parallel fashion, as a unitary block, the same willingness to produce certain legal effects without any need for the participation of other subjects or ‘parties’ in the form of acceptance, reciprocity, etc.98

The Working Group which was convened in 1998 then ‘noted’ that ‘a unilateral statement could be made by one or more states jointly or in a qui constitue le critère de l’unilatéralité d’un acte, mais la situation des auteurs de l’acte au regard des normes posées . . . Les auteurs de la promesse se retrouveront tous du même coté de la ligne séparant dans le mécanisme normatif, le droit, de l’obligation’. And, for unilateral promises, Jacqué: ‘Pour nous, le caractère unilatéral d’un acte ne découle nullement du fait qu’il soit imputable à un seul sujet de droit international. Un acte unilatéral est un acte hétéronomateur, c’est-à-dire une manifestation de volonté par laquelle un ou plusieurs sujets de droit créent des normes applicables à des tiers’. J-P Jacqué, ‘A propos de la promesse unilatérale’ in Melanges offerts a Paul Reuter (1981) 331. In his earlier book Jacqué seems to have taken a different stand when he states that ‘Le critère essentiel de l’acte unilatéral ne réside pas dans le nombre de volontés qui participent à son élaboration, mais dans le nombre de sujets de droit auquel il est imputé. L’acte unilatéral est un acte qui ne peut être imputé qu’a un seul sujet de droit international’, Jacqué, Eléments, n 1 above, 325. 96   See especially Suy, Actes unilatéraux, n 1 above, 28: ‘Dans l’acte juridique unilatéral par contre, nous nous trouvons en présence d’une seule manifestation de volonté, c’est-à-dire d’une manifestation de volonté émanant d’un seul sujet de droit’. Also Suy and Angelet, ‘Rechtsgeschäfte’, n 11 above, 319: ‘die Willenserklärung nur eines Völkerrechtssubjekts’. In the same vein, Venturini, ‘Actes unilatéraux’, n 30 above, 412; also Nguyen, Pellet and Daillier, Droit international public, n 30 above, 359, para 235: ‘Par acte unilatéral, on doit entendre l’acte imputable à un seul sujet du droit international’; and Brierly, Report, n 89, 225, para 6: ‘wholly unilateral engagements, engagements to the creation of which only one international legal person is a party, are not within the scope of the present [ie Law of Treaties] draft’. 97   See the tentative General Outline for Unilateral Acts of States as presented by the ILC, Report of the Working Group (1996) in (1996) II YB International Law Commission pt 2, Annex II, Addendum 3, 141, para 4: ‘1. Definition and Typology: Distinction from (i) Unilateral nonbinding instruments; (iii) [mistakingly skipping (ii)] Treaties (possibility of ‘plurilateral acts’ (‘collective unilateral acts’)?)’. 98   ILC, 1997 Report of the Working Group, n 18 above, para 10.

44  Delimiting the Subject: Promise as a Unilateral Act concerted manner’,99 whilst the Group of 2003 agreed to concentrate on a statement having been made by ‘one state’; it was, however, quick to add that while being a necessary criterion it was not to be considered an exhaustive one. Paragraph 6 of the Commentary provided by the Working Group, as an annex to its own recommendations made the very same year, addresses the matter again and reads as follows: The idea that, in principle, a unilateral act emanates from one State would appear, prima facie, to be obvious. Some members of the Working Group were, however, of the opinion that unilateral acts may originate with a group of States, while others considered that they were mixed acts of a unilateral nature in respect of their addressees and conventional acts in relations of their authors inter se. That question will have to be discussed in the commentary to the article defining unilateral acts for the purposes of the draft and decided in the body of the draft.100

The Guiding Principles, however, do not address the matter and the ILC therefore left it unresolved. In dealing with the question whether numerous subjects of international law can really be the authors of one unilateral act, it seems sensible to slice the problem into small portions in order to clarify what this dispute is about. There is no disagreement that a single subject of international law can be the author of a unilateral act, the question is merely whether it may only and always has to be a single subject of international law. Consequently, no problem and no disagreement will arise in situations in which the collective as such has attained its own international legal personality; because if so, then, in a legal sense, we are not any longer in the presence of a collective act but in that of a single subject of international law – despite the acting subject itself being comprised of a number of international legal subjects.101 An international organisation with international legal personality may, for example, issue a unilateral act through its respective organs. In doing so, it is, however, acting as a single subject of international law, as it is distinct from the members comprising it.102 These acts are therefore not the ‘joint acts’ in question. The ‘collective’ or ‘joint’ act subject to debate can only be the one in which a number of international legal subjects act jointly without the collective itself having acquired legal personality. This joint action is conceivable in different ways and especially the following two are to be held apart: the legal subjects (as always we are going to concentrate on states)103 might conclude a contract amongst each   ILC, 1998 Report of the Working Group, n 3 above, para 11.   ILC, 2003 Report of the Working Group, n 3 above, Annex, 6, Commentaries, para 6. 101   See also Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 31. 102   See also Jacqué, Eléments, n 1 above, 323. 103   See p 78. 99

100



Unilateral 45

other in which certain rights are granted to a third state,104 which did not take part in the agreement and does not become a party to the contract. Alternatively, the joint action might not consist of a contract between the acting states while still constituting what may be termed a ‘combined effort’ of numerous states, because a commitment is, for example, declared in one document; a group of state representatives might promise a certain line of future conduct to the world at large or certain addressees as the outcome of an international conference without them having concluded a contract inter se. It is especially in these two scenarios in which the question will arise whether numerous subjects of international law are issuing a single unilateral act or not. Each scenario will therefore be addressed separately. (i)  Treaties Providing for Rights for Third States In the first problematic setting, multiple (at least two) states come together to conclude a contract which confers a right on a third party.105 No one denies the purely contractual relationship between the states conferring the right. However, by emphasising the emergence of a right conferred vis-à-vis a third state from the ‘same legal camp’,106 the act of granting the third party a special right might now appear to be a unilateral act, as shown in Figure 1.4. state A contractual relationship with state  B (and possibly others)   P: unilateral relationship vis-á-via third state which did not take part in its elaboration? third state (receiving a right) Figure 1.4 Scenario 1   Or, indeed, to numerous states or to another subject or subjects of international law.   The first scenario therefore only applies to ‘rights conferred’ on a third party, and hence what is alleged to be a ‘promise’ vis-à-vis a third state within a contract. The reason is that the special rules contained in the law of treaties apply only to this scenario. Waivers, acts of recognition, as well as protests, if included in a treaty and proclaimed in relation to a third party, will therefore trigger the problems described in scenario 2. 106   For these authors see n 95 above, speaking of ‘un même camp’, Dehaussy, ‘Théorie restrictive’, n 88 above, 52. 104 105

46  Delimiting the Subject: Promise as a Unilateral Act From the outset, such a construction can only be contemplated for cases in which the parties do not intend to oblige themselves vis-à-vis each other to only subsequently, individually or collectively,107 grant the third state108 a certain right or merely a certain benefit, but where it is their intention to confer an actual right on that third party through their contract, therefore directly obliging themselves vis-à-vis this third state. While it may indeed seem sensible to liken these situations to that of an addressee being the beneficiary of a declaration made by a single state,109 or, generally speaking, single subject of international law, the situation is different and, importantly, the law construes it in a different manner. For ‘treaties providing for rights for third states’ the Vienna Convention, Article 36(1), provides as follows: A right arises for a third State from a provision of a treaty if the parties to the treaty intended the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides.110

The wording and solution found by the Vienna Convention are a little awkward as they reflect the outcome of a debate between two different schools of thought on the matter, from which they were supposed to form a compromise. When the ILC was dealing with the law of treaties, divergent views were expressed on the doctrinal construction of interest here, ie of the legal bond created with the third state. While some considered it possible for two states to confer a right directly on a third party merely by expressing their will to do so,111 others were of the opinion that this could be done only by establishing a ‘collateral contract’ and hence through an offer which had to be accepted by the third party.112 Especially in light of the fact that supporters of a collateral contract did not consider an express acceptance to be necessary, while those of an automatically created right allowed for a denunciation of the latter, the disagreement seemed surmountable and in practice likely ‘to produce different results only in very

  This would lead directly to our scenario 2 and hence to p 49.   The phrase ‘third’ state merely means the state not a party to the contract, even though the contract may of course be concluded amongst more than two states. 109   See Jacqué, ‘Promesse unilatérale’, n 95 above, 330. 110   Vienna Convention, Art. 36(1), emphasis added. 111   Through what is then called a ‘stipulation pour autrui’. 112  See ILC, Draft Articles on the Law of Treaties with Commentaries in (1966) II YB International Law Commission 228, paras 3–7. The differences between the Vienna Convention Article as adopted and the draft prepared by the ILC is of no relevance in this respect. See also Paul Reuter, Introduction to the Law of Treaties (London/New York, 1995) 102–04, paras 156–61; Pierre D’Argent, ‘Article 36, Convention de Vienne de 1969’ in Olivier Corten and Pierre Klein (eds), Les conventions de Vienne sur le Droit des Traités, Commentaire article par article (Brussels, 2006) vol II, 1468. 107 108



Unilateral 47

exceptional circumstances’.113 The Commission consequently set out to draft an article, which, it said, left the doctrinal foundation open.114 Yet, not only but even more so from today’s point of view and after the Nuclear Tests cases, it cannot be considered really to have done so. The ICJ, and with it legal doctrine, is quite clear that for unilateral and obliging commitments vis-à-vis an addressee, it is the promisor’s manifestation of a will to be legally bound which allows it to create a legal obligation, with no acceptance or reaction necessary on the part of the addressee.115 It is therefore a single manifestation of will which in the promisor-­promisee relationship creates the legal bond and obligation, hence not a relationship requiring the addressee’s consent. Turning back to the Vienna Convention’s regulation for contracts providing rights for third states, one cannot fail to notice that its wording clearly construes the legal relationship in a different manner. While the text adopted does not use the word ‘acceptance’, it stipulates the necessity of the third state’s ‘assent’ in order for it to acquire a right and thereby establishes a relationship which is based on the beneficiary’s consent. This is also stipulated by Vienna Convention, Article 34, according to which as a ‘General rule regarding third states: a treaty does not create either obligations or rights for a third state without its consent’.116 As the ILC points out: Paragraph 1 [of the draft article] lays down that a right may arise for a State from a provision of a treaty to which it is not a party under two conditions. First, the parties must intend the provision to accord the right either to the particular State in question, or to a group of States to which it belongs, or to States generally . . . The second condition is the assent of the beneficiary State.

113   The main practical difference between the two concepts as identified within the ILC relates to the exact point in time at which the right is conferred upon the third party. Under a (simple) collateral contract, the right is created at the moment of the third party’s acceptance of the offer made, whereas in the other case the right is conferred at the will of the contracting parties without it having to be accepted by the third state and will hence arise at once and exist until and unless disclaimed by the beneficiary state, see ILC, Draft Articles on the Law of Treaties with Commentaries, n 112 above, 228–29, para 5. 114   Ibid 229, para 5: ‘the Commission decided to frame the article in a form which, while meeting the requirements of State practice, would not prejudge the doctrinal basis of the rule’. 115   That it is more the perceived than the actual will which binds the declarant is of less importance in this context. For more see p 207 et seq. 116   There seems to be some disagreement on whether this Article works as a general rule, the details of which are elaborated in Arts 35–38, as the present writer would assume, or whether Arts 35–38 form an exception to the presumption in Art 34 as, eg Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn (Manchester, 1984) 101 assumes. Article 35, however, quite clearly does not include an exception to Art 34 but rather further entrenches it. The same is hence very likely to be true for Art 36. As here, TO Elias, The Modern Law of Treaties (Dobbs Ferry, NY, 1974) 67; Theodor Schweisfurth, ‘International Treaties and Third States’ (1985) 45 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 653, 664.

48  Delimiting the Subject: Promise as a Unilateral Act The assent is therefore a condition, which is not the case for obligations brought about through unilateral acts. Nevertheless, the ILC claims to have remained on neutral ground when it continues: The formulation of this condition in the present tense ‘and the State assents thereto’ leaves open the question whether juridically the right is created by the treaty or by the beneficiary State’s act of acceptance. In one view, as already explained, the assent of the intended beneficiary, even although it may merely be implied from the exercise of the right, constitutes an ‘acceptance’ of an offer made by the parties; in the other view the assent is only significant as an indication that the right is not disclaimed by the beneficiary.117

The ILC hence pretends those who consider the right to be created automatically and without the need of the third state’s consent, could read Vienna Convention, Article 36(1), not to say ‘A right arises for a third State if [!] . . . the third State assents thereto’ but ‘A right arises for a third State. But it may be disclaimed’, as well as Article 34 ‘A treaty does not create . . . rights for a third State without its consent’ as meaning ‘A treaty creates a right for a third State. The latter, however, has the right to disclaim it’. But this is not what the wording says. Despite the ILC paying lip service to the other theory, Paul Reuter is therefore absolutely right when he concludes: ‘In any event, the collateral agreement is the crucial concept in the mechanism instituted by the Vienna Conventions’.118 By choosing to operate with a (rebuttable) presumption of acceptance on the side of the beneficiary, the text adopted by the Commission has, however, rather ingeniously reduced the practical differences between the two debated constructions to an absolute minimum.119 This is true especially as the Vienna Convention chose to regulate another important field of application in which the two regimes might have led to a difference. Its Article 37(2) deals with the modification and termination of the right conferred upon the third state and establishes a default rule which allows the two states agreeing to grant a right to revoke or modify it at their will 117   ILC, Draft Articles on the Law of Treaties with Commentaries, n 112 above, 229, para 7, emphasis added. 118  Reuter, Law of Treaties, n 112 above, 104, para 158. See also Philippe Cahier, ‘Le problème des effets des traités à l’égard des Etats tiers’ in Recueil des Cours de l’Académie de Droit International de La Haye (Leiden, 1974) vol 143, 638: ‘Sur le plan des principes, et malgré le commentaire de la Commission qui y voyait un compromise, cet article tranche le débat entre ceux qui estiment que le droit naît du traité et ceux qui pensent qu’il naît du consentement, en faveur de ces derniers’; Schweisfurth, ‘Treaties and Third States’, n 116 above, 664–65: ‘in order that such obligations and rights actually arise for third States, these too must consent, ie “accept ” the obligation or “assent” to the right. Thus it is not the treaty itself which brings into existence obligations or rights for third States but rather the collateral agreement between the third State and the contracting parties’. Contra Jimenez de Arechaga, ‘International Law in the Past Third of a Century’ (1978) 159 Recueil des Cours de l’Académie de Droit International de La Haye 1, 54. 119   As intended by the Commission, see ILC, Draft Articles on the Law of Treaties with Commentaries, n 112 above, 229, para 6.



Unilateral 49

unless it is established that the third state’s consent for them to do so was made a requirement: When a right has arisen for a third State in conformity with article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State.

The solution adopted thereby deviates from the rules operable in relation to consensual relationships, ie treaties (where withdrawal and modification are generally not possible without the contractual parties’ assent),120 as well as from those governing unilateral promises.121 In light of the aforesaid, it is therefore correct to conclude that states conferring a right on a third state are not acting jointly through a unilateral act if they decide to do so in a treaty. The dogmatic construction adopted in the Vienna Convention is, as seen, a consensual one; although the term ‘offer’ is avoided, there is in effect an offer to assent made by both, or more precisely, each122 state to the third party, while presuming the latter to ‘accept’. The right is hence not conferred via a unilateral act, ie a single manifestation of will, but on the basis of the latter’s consent. Problems which are bound to arise with regard to the second scenario of joint state action are thereby largely evaded.123 (ii)  Joint Declarations Outside Treaties Here, no contract amongst the jointly acting states exists. One of the most common scenarios that comes to mind for states making sometimes rather precise and solemnly proclaimed assurances, are declarations issued after international conferences and meetings. Does such a declaration, while assuming an intent to be bound, then constitute a joint unilateral act made by these states? 120  See especially Vienna Convention, Arts 54, 56 and 59(1)(a) for termination, withdrawal and denunciation with the parties’ consent and the exceptions in Arts 60–62 (material breach, supervening impossibility and fundamental change of circumstances) and Arts 39–41 for any modification. 121   The ILC does not specify whether any restrictions on a conferred right’s revocability exist other than an intended irrevocability without the third state’s consent as mentioned in the provision. While the concept of good faith should in our eyes impose similar restrictions as in the area of promises, the Commission ‘was unanimous in thinking that until the beneficiary State had manifested its assent to the grant of the right, the parties should remain free to revoke or amend the provision without its consent’, ILC, Draft Articles on the Law of Treaties with Commentaries, n 112 above, 228–29, para 5. Again, the Commission’s emphasis on consent is clear. The free revocability ‘until the beneficiary State has manifested its assent’ is nevertheless doubtful as the Commission subsequently altered the provision from ‘and the State expressly or implicitly assents thereto’ to include the above-mentioned presumption of assent. A manifestation of assent is hence no longer necessary. 122   See scenario 2 and the legal analysis provided there. 123   For readers who are not convinced and still prefer the solution by the ILC to allow for a single yet joint unilateral act to be issued to the beneficiary, scenario 1 will also lead to the questions now addressed in relation to scenario 2.

50  Delimiting the Subject: Promise as a Unilateral Act state A – state B – state C – state D

a cting ‘jointly’ through a declaration but without concluding a contract

P: unilateral act vis-à-vis third state(s)?

third state(s) (receiving a right) Figure 1.5 Scenario 2

Scholars who consider this sort of combined action to form a unilateral act (ie a legally binding manifestation of will) because it comes ‘from one side’ must be aware that in saying so, they in fact declare a plurality of states to manifest a single will, or more precisely to have manifested its own will to be legally bound.124 This necessarily leads to the question how a collective can be considered to manifest a legally effective will as a collective, hence become a legal actor that confers a right and undertakes an obligation, without having acquired (at least partial) legal personality? Because, to recall, if the latter is not the case and the collective indeed is a legal person, then, as indicated above, the problem dissolves as we are left not with numerous subjects issuing a ‘joint or collective act’, but with the standard scenario of one subject of international law manifesting its will through one unilateral act. If, on the other hand, there is no legal personality for the group, which is to be assumed especially where the gathering or get-together of the acting states is ephemeral or even singular, and there is no body or any organ acting to express what in these scenarios is going to be a unanimous decision supported by all acting states, can it nevertheless be said to issue a unilateral act, ie manifest its will? This apparent contradiction and how it is to be overcome is scarcely explained by those supporting this solution.125 In addressing it, it is important to 124   That a unilateral act is a manifestation of a single will is not disputed and is confirmed by Sicault as well as the Special Rapporteur, despite both arguing in favour of a unilateral act which stems from numerous subjects of international law. See also the citations provided in n 125 below. 125   Sicault evades an answer when he says: ‘Sans entrer ici dans une critique détaillée de l’assimilation de l’unicité du sujet à l’unicité de la manifestation de volonté, on peut noter que partir de l’idée de côté, de champ ou de partie, permet de prendre en compte les actes collectifs ou collégiaux’, Sicault, ‘Engagements unilatéraux’, n 70 above, 640. The Special Rapporteur cites him, while merely adding: ‘The fact that the act is a single expression of will does not mean that the subject of law that performs it is also single. To think otherwise would preclude recognition of the variety of strictly unilateral acts’, Cedeño, First Report, n 3 above, para 134.



Unilateral 51

note that the dilemma presented will only arise in a limited set of cases, to which we are going to turn in a moment. Often, however, states making a joint pledge that might resemble a single unilateral act will in fact be giving rise to not one, but multiple parallel unilateral acts through which each participating state obliges itself vis-à-vis the addressee. This will especially be the case where the commitment is one which can be traced back to each state and could have perfectly been declared on its own, but which is now proclaimed together with others and at the same time; such as, for example, a declaration in which each state commits itself to reduce greenhouse gases by X per cent compared to what it emitted at the time Y. In these scenarios the analysis provided by Gian Carlo Venturini in a footnote on the topic is the most adequate: Even unilateral acts may emanate following the intervention of multiple subjects (collective acts), but, in this case, the different manifestations of will have each a distinct judicial value of their own, and are merely extrinsically united, in the way that they manifest themselves simultaneously in the same act.126

The use of the word ‘act’ at the end of this citation is unfortunate as it might be misunderstood. Of course the law does not attach legal relevance to the document as such – the unilateral act is not the piece of paper which might be destroyed without thereby annulling the legal commitment it helped to express – but, as pointed out, the will which has been manifested through it. Venturini is, of course, aware of this fact, as he correctly points out that the apparently ‘joint act’ is not one (single) declaration of will, ie one act, but there are numerous manifestations of will and each of distinct and proper legal importance, only extrinsically united in the same ‘formal act’, ie the same document. It is the will of each of the collective’s ‘members’, which one by one have manifested their will unilaterally, despite them using a common channel, such as a single document. This sort of joint action therefore gives rise to a series of parallel unilateral acts; there is not one unilateral act with numerous authors, but numerous unilateral acts, each of which have an author of their own.127 To assume not one but numerous acts to be present at this time not only adequately reflects the communication taking place but, at the same time, avoids the above-mentioned doctrinal contradiction with other important 126   Venturini, ‘Actes unilatéraux’, n 30 above, 412, note 9, my translation, emphasis added, of the following original: ‘Même l’émanation des actes unilatéraux peut avoir lieu à la suite de l’intervention de plusieurs sujets (actes collectifs); mais en pareil cas, les différentes déclarations de volonté ont, chacune, une valeur juridique propre et distincte, et ne sont qu’extrinsèquement réunies, dans la mesure où elles se manifestent simultanément dans le même acte’. See also Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 32, where he points out that if states do not act on a common legal basis which allows them to form a single will, they will merely be able to issue simultaneous manifestations of will. 127   The ILC Working Group’s description during the early stage of the work in 1997 also spoke of states acting ‘simultaneously or in a parallel fashion’, see the text to n 98 above.

52  Delimiting the Subject: Promise as a Unilateral Act implications in law, for example, if only one or some of the unilateral declarations made in a parallel fashion are held to be void or voidable or were to be revoked. Each act is, and remains, distinct from the others and can therefore be treated separately. How a truly ‘joint act’, understood as ‘one unilateral act issued by numerous subjects of international law’ should be treated, if only one or some of its authors want to revoke it or invoke fraud, corruption or error, has not been explained by those assuming so, and will only lead to more dogmatic contradictions and headaches. Yet, and much to our chagrin, these headaches cannot be completely avoided by the above-mentioned description of joint action by states. Problems are bound to arise when numerous states manifest a will which can only operate when being attributed to more than a single state. This might be the case where two or more states can only exercise a right together. The same will be true when a pledge is made in which the declaring states make an assurance which is expressed only as an obligation of the group itself without any indication as to which member of the group will fulfil which part of the commitment. To provide an example of this second aspect: if eight states legally oblige themselves together to reduce the amount of greenhouse gases or young fish caught by very small nets by 20 per cent, we do not know how this 20 per cent is going to be calculated by the acting states. We cannot simply assume that each state has expressed its will in a parallel fashion to reduce greenhouse gases or fishing by one-eighth of the promised 20 per cent reduction. Only the collective as such has pledged to do so, and it might itself decide how to divide the responsibilities to meet its duties. The logical question hence is: has the collective issued a single unilateral act in this scenario? As indicated above, those speaking of ‘the same legal camp’, who generally assume collective action to be a possible source of a unilateral manifestation of will, hardly even address the problem raised here. In criticising Suy for considering merely one subject of international law as the possible author of a unilateral act, Jacques Dehaussy points to Eisenmann’s courses in (French) administrative law.128 Pfluger also takes recourse to figures of internal law but is more explicit in tackling the problem when he refers to a ‘Gesamtakt’ (collective act) which was indeed a single manifestation of will issued by numerous states without them constituting a new judicial person. Pfluger considers this admittedly ‘intermediate’ configuration129 (between own legal personality and a mere plurality of legal 128   Dehaussy, ‘Théorie restrictive’, n 88 above, 52. In note 21 he directs the reader towards ‘divers cours de doctorat de droit administratif approfondi’ of Mr Eisenmann. 129   See Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 32, note 18: ‘Die mehreren zu einer Handlungseinheit verbundenen Personen stellen vielmehr eine Zwischenerscheinung zwischen Einzelperson und juristischer Person oder, auf VRgebiet übertragen, zwischen Einzelstaat und Staatenbund (als VRperson) dar’ (which roughly translates: ‘The multiple persons forming a union ready to act in fact constitute an intermediate position between



Unilateral 53

persons each acting for themselves) necessary and applicable in the case in which there is a legal basis unifying the acting states, providing the example of a protest being issued by two states which together administer a territory.130 While caution is clearly necessary when advocating the transferral of (notions of even limited applicability in) national law to the international arena,131 this would not be sufficient reason alone to dismiss it, as it might indeed turn out that the international legal system poses the same problem in merely ‘a different language’ and consequently warrants a similar solution. However, referring to a ‘Gesamtakt’ as a manifestation of will by states that are acting on a joint legal basis, yet without legal personality, does not by itself solve the legal paradox of having a group of states as an admittedly non-legal entity acting in a legally obliging and rights-creating manner; it only gives the act a name and points more directly to the problem. Instead of assuming an intermediate position in these cases, which will lead to many other questions as to how this collective will be treated if an obligation is breached by it, taken back or void, or if it is indeed invoked by the addressee, the following alternatives are possible. First, it is indeed conceivable and only logical to assume that a legal obligation by the group, as such, simply cannot be assumed, as long as the collective does not give itself a more stable structure in order to attain international legal personality as an international organisation, to be able subsequently to oblige itself as a group, rather than only each of its members. Despite a will of the declaring states to assume an obligation as a group, we will then again merely have, at most, parallel obliging declarations in which states pledge together to fulfil what has been promised, but with each state individually being no more obliged than to participate somehow in the fulfilment of the declared goal. Where two states are administering a territory together we would assume that they, too, both make unilateral declarations such as a protest, which only in their dependence on another are of their intended value, but which remain distinct as legal acts. The other alterative, as we see it, and indeed a preferable one, as it adequately reflects an intention of the acting states to commit themselves as a group, is to ‘go light’ on the requirements on international personality: As the collective itself is created of subjects of international law which intend to assume a legally binding obligation as a collective, they apparently want a single natural person and a legal one, or, and transposed to the international legal level, between a single State and a federation of States (as a subject of international law)’). 130   Ibid 32. See also Heinrich Triepel, Völkerrecht und Landesrecht (Leipzig, 1899) 59–62. 131   Even in the German national legal system Pfluger in his note 22 notes the opposition to this (at the time) relatively new concept that was apparently introduced in a book written by Prof Johannes Kunze in 1892 entitled ‘Gesamtakt, ein neuer Rechtsbegriff’ (‘Gesamtakt’ (joint action) a new terminus in law’, my translation). Today the concept of a Gesamtakt exists in German law, even though in limited areas and with a ‘Gesamtakt’ not necessarily constituting a manifestation of will.

54  Delimiting the Subject: Promise as a Unilateral Act and need this group to be capable of carrying duties and hence to attain, if only very partial and limited, legal personality. In any event, either solution is in our eyes a more coherent way out of the dogmatic dilemma in these, moreover, very limited scenarios. (iii)  Concluding Remarks on Joint State Action Our reply to the question as to whether promises or, more generally speaking, unilateral acts will necessarily emanate from a single subject of international law is hence affirmative. It can be summarised in Figure 1.6. It is consequently correct to say that a unilateral act, and for our purposes a promise, will emanate only from a single subject of international law. The possible exception is, as indicated, only conceivable in special scenarios

States 'acting jointly'

with the group having attained legal personality itself (eg as an IO): act as a single subject of international law and issue a single unilateral act.

without the group having attained legal personality

and which confer a right via a treaty: do not grant the right unilaterally but via a consensual link in which the beneficiary’s assent is presumed and with the VCLT stipulating special regulations as to the right’s revocability and modifiability. while the manifested will is attributable only to the group:

and not concluding a treaty inter se in which a right is granted

clearly

An 'intermediate position' is contemplated (no legal personality yet the group manifests a legally binding will as such) but it is dogmatically more coherent to either assume no unilateral commitment for the group, but merely parallel unilateral commitments by each State to act in order to achieve the goal OR , and preferably, to allow the group to attain at least partial legal personality (and again have a single subject of international law which issues a single unilateral act).

Figure 1.6 Summary of joint state action

and the manifested will is attributable to each 'member': each issue a single unilateral act with the group hence issuing parallel unilateral acts.



Unilateral 55

and even here, it should be rejected as it remains contradictory in its legal construction. In these cases the group should be attributed with at least partial legal personality. Those claiming that a single unilateral act may stem from numerous legal subjects should be aware of the fact of thereby defending a legally paradoxical construction, an awareness that seems to be largely lacking in view of the scarce explanations and naked stipulations in this regard. The fact that unilateral acts will emanate from only a single subject of international law is, however, not due to an existing additional formal requirement, but merely the effect of the legal regime attaching consequences to a legal subject’s own and only, hence, single manifestation of will.132 B  The ‘Autonomy’ Debate Not all acts matching the above described criteria, ie being manifestations of a legally relevant will to undergo a new obligation and issued by a single subject of international law, are, however, also considered to actually fall within the legal framework operable for unilateral acts (and hence that of promises as their subcategory). In order to indicate which ones are and which ones are not, the adjective ‘unilateral’ is sometimes substituted by or allied with the word ‘autonomous’. Although disagreement as to what this term really means is considerable,133 the division into autonomous and non-autonomous, that is ‘dependent’ unilateral acts, has been employed in order to hold acts related to the law of treaties or other legal regimes apart from the ‘truly’ unilateral ones, only to which the rules on unilateral acts will apply.134 In this view, offers, acceptances or acts of accession, to name only a few, are considered to be unilateral only in a formal way, ie   Despite the assertions by Sicault and Cedeño to the contrary, see n 125 above.   See especially the debate that arose within the Commission in ILC, Summary Record of the 2603rd Meeting, UN Doc A/CN.4/SR.2603 (1999). 134   Cedeño, Third Report, n 3 above, para 61: ‘The point is to exclude, by means of this criterion, acts linked to other regimes, such as all acts linked to treaty law’. For the autonomy concept presented by the Special Rapporteur see Cedeño, ILC, 2603rd meeting, n 133 above, paras 26 and 62; Cedeño, First Report, n 3 above, para 136 et seq; Victor Rodriguez Cedeño, Second Report on Unilateral Acts of States, Addendum, UN Doc A/CN/500/Add.1 (1999) para 46, esp paras 62 and 63; and Cedeño, Third Report, n 3 above, paras 60–69. See also Suy, Actes unilatéraux, n 11 above, 30 as well as Venturini, ‘Actes unilatéraux’, n 30 above, 400, 413 and Sicault, ‘Engagements unilatéraux’, n 70 above, 640–41. Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 65–66 mentions the possibility to distinguish between dependent and non-dependent acts (‘selbständige’ and ‘unselbständige Rechtsgeschäfte’) without, however, wanting to discard ‘dependent acts’ from the realm of unilateral acts. Verdross and Simma, Universelles Völkerrecht, n 23 above, 426–27, ss 664–65 also merely distinguish between the two forms. Cautiously also Skubiszewski, ‘Unilateral Acts’, n 11 above, 222, para 9, who does not deny a non-autonomous act’s legal effect but only describes, for example, ratification’s essential function to go ‘beyond unilateralism’, while other acts were ‘by definition, free of any link or relation to a legal transaction in which another state or states participate’, and that ‘some writers regard only the latter as true unilateral acts’. 132 133

56  Delimiting the Subject: Promise as a Unilateral Act to be manifestations of will issued by a single subject of international law and intended to create legal effects. But because they allegedly depend on another manifestation of will to actually have their legal effect, they are said not to create the latter in an ‘autonomous’ way. According to some authors this is also true for declarations made under ICJ Statute, Article 36(2), and acts such as the delimitation of maritime boundaries or, more generally speaking, all acts which are based on a treaty provision.135 In all these cases, so they claim, it is not on account of the sole will of the act’s author that a legal effect is triggered and accordingly, the act must be classified as not unilateral in substance. Yet, and even though there is general agreement that acts such as the ratification of a treaty are not covered by the legal regime dealing with unilateral acts but by the specific rules laid down in the law of treaties, the ILC did not reach a consensus as to the concept of ‘autonomy’ – much less could it agree to include it in a definition of unilateral acts. While the Special Rapporteur and some Commission members held it to be of ‘fundamental significance’,136 others considered autonomy to be an ambiguous term,137 to have nothing to do with the definition of a unilateral act,138 found the categorisation into autonomous and non-autonomous acts of secondary importance,139 its application as advocated within the Commission even ‘absurd’,140 and wanted the term to be eliminated.141 In the various definitions debated within the Commission,142 the adjective appears in the ones proposed in the Special Rapporteur’s First and Second Reports, before being put into square brackets by the 1999 Working Group and finally fading away completely. It does not appear in the Guiding Principles now adopted. The debate on autonomy was, however, never settled and despite it being eventually discarded from the definitions later debated within the Commission, the Special Rapporteur 135   See especially Cedeño, n 134 above and Suy, Actes unilatéraux, n 11 above, 31, 142 et seq. Cedeño, especially in his Second Report, went even further and argued not only for an independence of treaty provisions but even pre-existing customary norms, see Cedeño, Second Report, n 3 above, para 62 and the analysis provided p 62 et seq. 136   Cedeño, ILC, 2603rd meeting, n 133 above, para 26; for the Special Rapporteur’s view see in addition the references provided in n 134 above. Also in favour of the concept of autonomy in the Commission, see, eg Lukashuk, ILC, 2603rd meeting, n 133 above, para 18; Economides, ILC, 2603rd meeting, n 133 above, para 24. 137   Mentioning the ambiguity of the word and the different understanding attributed to the concept by Commission members, Simma, ILC, 2603rd meeting, n 133 above, para 25. For Pellet ‘no one knew what “autonomy” meant’, ILC, 2603rd meeting, n 133 above, para 35. See also Nguyen, Pellet and Daillier, Droit international public, n 30 above, 362, criticising the lack of precision attached to the autonomy criterion, and the missing accord amongst those supporting it, on which acts were autonomous. 138   Candioti, ILC, 2603rd meeting, n 133 above, para 28. 139   Addo, ILC, 2603rd meeting, n 133 above, para 32. 140   Pellet, ILC, 2603rd meeting, n 133 above, para 19. 141   In the ILC’s 2603rd meeting, n 133 above, Pellet, Candioti, Ado, Simma, Duggard and Melescanu all argued in favour of eliminating ‘autonomy’ from the definition. 142   See n 3 above.



Unilateral 57

in his work (in the eyes of one Commission member seemingly ‘obsessed with autonomy’)143 held on to it as an underlying material concept.144 And indeed, the distinction into autonomous and non-autonomous or dependent and non-dependent acts can frequently be found in legal literature.145 In order to clarify the importance of the autonomy concept, or the lack thereof, we would like to start with a rather influential article in the area of unilateral acts which was written by Fitzmaurice in 1957.146 For him: ‘Declarations’ may be of three kinds: (i) bilateral or multilateral Declarations, which are unilateral neither in substance nor inform; (ii) unilateral Declarations, that are unilateral both in form and in substance; and (iii) unilateral Declarations that are unilateral in form but not in substance.147

The first group of declarations, clearly bilateral or multilateral ones like a treaty text developed and adopted mutually by two or more parties, are of no interest here as they from the outset lack any unilateral element. It is the distinction between category (ii), the unilateral declaration which is unilateral both in form and in substance (hence ‘truly unilateral’), and the unilateral declaration under (iii) which is said to be unilateral merely in form but not in substance which matters here. Fitzmaurice differentiated between these two as follows: In case (ii) the Declaration is unilateral not only in form but also in substance, in the sense that it is not made in return for, or simultaneously with, any specific quid pro quo or as part of any general understanding . . . In case (iii), on the other hand, the contractual element is present. The Declaration is unilateral in form, but it is contractual in substance, either because it is one of two or more similar Declarations intended to be interdependent and interlocking, or because it is linked to the action of another State, which either forms the quid pro quo for it, or in respect of which it is itself the quid pro quo. Such a situation gives rise to a ‘treaty position’ in which the text or texts concerned will clearly fall to be interpreted according to the normal rules of treaty interpretation.148   Pellet, ILC, 2603rd meeting, n 133 above, para 12.   See Cedeño, Third Report, n 3 above, para 69: ‘Although the term “autonomous” is not included in the definition submitted in this Third Report, it can be assumed that these acts are independent in the sense mentioned above, although this issue will have to be discussed further in the Commission so as to define and delimit such acts’. 145   See the references in n 134 above. 146   It seems to have been especially influential in establishing the very existence of unilateral promises, see p 125; see also Alfred P Rubin, ‘The International Legal Effects of Unilateral Declarations’ (1977) 71 American J International Law 1, 11. 147   Sir Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–54: Treaty Interpretation and Other Treaty Points’ (1957) 33 British YB International Law 202, 229. 148   Ibid 230–31. 143 144

58  Delimiting the Subject: Promise as a Unilateral Act For Fitzmaurice there are therefore unilateral acts which are manifestations of will emanating from a single subject of law but which are not unilateral in their substance as they are either intended to form a bilateral relationship or are ‘linked’ to other state action which forms, or to which they themselves form, the quid pro quo. This ‘either-or’ distinction (intent or quid pro quo) is, however, not entirely convincing, as the existence of a quid pro quo can only be established by taking recourse to the parties’ intentions in the first place. Where an exchange of some sort has taken place it will be necessary to establish that both parties indeed intended to create a nexus between the two acts and wanted the latter to be understood as a contractual do ut des exchange. Without this inquiry there is no way to differentiate between two separate contracts each favourable to only one party, two unilateral declarations (eg the subsequent exchange of promises) and, indeed, a single contract. An exchange will only turn into a one-for-the-other exchange, ie include a quid pro quo, if the parties’ intention to do so has been established. In this regard, it is important to keep in mind that the common law requirement of consideration has not been incorporated into international law.149 In order to determine whether an ‘interdependency’ exists, the focus will therefore always lie on whether the declarants intended their declarations or actions to be ‘interdependent and interlocking’, as Fitzmaurice calls it. Yet, the question remains whether such an act intended to be ‘inter­ locking or interdependent’, ie the offer or acceptance, can really be called not unilateral in substance. Does the will to do something under the condition that somebody else accepts this declaration really turn the declaration into a ‘mixed act’, unilateral only in form but actually bi- (or multi-) lateral in substance? When Eric Suy took up this aspect, now under the actual term of ‘autonomy’ (l’autonomie), in his important work on unilateral acts (which apparently strongly influenced the Special Rapporteur, who advocated an autonomy concept along similar lines within the ILC), he differentiated between two forms of dependency. The substantial question to ascertain an act’s unilateral substance was whether a manifestation of will can be said to become effective independent of other manifestations of will which 149   See, eg Brierly, Report, n 89, 225, para 10: ‘It is not thought that the doctrine of consideration plays any part in international law’. Also, ICJ, South West Africa (Ethiopia and Liberia v South Africa), Separate Opinion of Judge Jessup, [1962] ICJ Rep 387 403: ‘The doctrine of consideration, which plays so large a part in Anglo-American contract law, has not been taken over into the international law of treaties’. See also Hersch Lauterpacht, Private Law Sources and Analogies of International Law (with special reference to International Arbitration) (London/ New York, 1927) 177–78; Oppenheim, Jennings and Watts, International Law, n 64 above, 1211, s 588: ‘The object of treaties is always one or more obligations, either affecting all the parties, or only some – or even only one of them’. On consideration and especially the ICJ’s treatment of Iceland’s failure of consideration argument raised in ICJ, Fisheries Jurisdiction (Spain v Canada), Jurisdiction, Judgment of 4 December 1998, [1998] ICJ Rep 432, see also Jan Klabbers, The Concept of Treaty in International Law (The Hague/Boston/London, 1996) 86–87.



Unilateral 59

emanated from other subjects of international law.150 The criterion of legal effectiveness led him, and the Special Rapporteur, to distinguish between two forms of dependency that rendered an act non-autonomous. First, an act could be dependent on another unilateral act to have its legal effect. And secondly, an act could also be dependent on another bi- or multilateral act to become effective.151 In both cases the act is said to be not unilateral in substance and hence to fall out of the legal framework operable in relation to unilateral acts. Each aspect is to be considered separately. (i)  Independence of Another Unilateral Act? The first prong of the purported independency test stipulates that an act has to be legally effective independent of another unilateral act, ie manifestation of will. With regard to this aspect, Suy wrote the following (my translation provided in footnote): Il se peut tout d’abord qu’un acte unilatéral doive rencontrer un autre acte de la même qualité afin de pouvoir produire des effets. Pris séparément, les deux actes n’ont aucun effet juridique immédiat car l’ordre juridique objectif ne rattache au premier que des effets juridiques potentiels, c’est-à-dire sous condition que l’acte posé rencontre un acte correspondant destiné à le compléter. Comme exemple typique de ce phénomène, nous pourrions citer l’offre et l’acceptation. Il n’existe en droit international aucune norme stipulant l’obligation de maintenir l’offre pendant un certain temps à moins de dispositions expresses dans l’offre elle-même. D’autre part, il ne peut pas y avoir d’acceptation d’une offre inexistante. C’est-à-dire qu’aucun effet n’est rattaché directement à l’offre, mais à une rencontre et une concordance entre l’offre et l’acceptation, ce qui nous amène dans le sillage du droit conventionnel. Sans doute, chacune des manifestations de volonté émane d’un seul sujet de droit international; mais elles ne constituent pas des actes unilatéraux parce qu’elles n’ont pas d’importance en elles-mêmes, et les effets juridiques sont rattachés non pas à chaque manifestation de volonté, mais plutôt à l’acte résultant de l’ensemble de volonté. Cet acte constitue précisément l’accord.152 150  Suy, Actes unilatéraux, n 11 above, 30: ‘Il faut, en outre [besides the “formal element”] que la manifestation de volonté soit, quant à son efficacité, indépendant d’autres manifestations de volonté émanant d’autres sujets de droit’, emphasis in the original. 151   See ibid para 30 et seq. Also Cedeño, ILC, Summary Record of the 2593rd Meeting, UN Doc A/CN.4/SR.2593 (1999) para 12: ‘A unilateral act thus existed when it was formally unilateral, when it did not depend on a pre-existing act (first form of autonomy) and when the obligation was independent of its acceptance by another State (second form of autonomy)’. 152  Suy, Actes unilatéraux, n 11 above, 30, which may be translated as: ‘First, it is possible that a formally unilateral act must encounter another act of the same quality in order to be capable to produce effects. Taken separately, the two acts have no immediate legal effect as the objective legal order merely attaches potential legal effects to the first act, this is to say only under the condition that the act encounters a corresponding act designated to complete it. As typical example of this phenomenon we can cite offer and acceptance. There is no norm in international law which stipulated an obligation to hold an offer for a certain time if not for dispositions made within the offer itself. And on the other side there cannot be an acceptance of an non-existent offer. This is to say that no direct legal effect is attached to an

60  Delimiting the Subject: Promise as a Unilateral Act For Suy, offer and acceptance are paramount examples of acts which do not fulfil the independency requirement, as their legal effect is said to depend on another manifestation of will. Consequently, they are found to be not unilateral in substance. Interestingly, Suy does not actually claim an offer to have no legal effect by itself but reduces its effect to being not immediate and merely ‘potential’.153 Yet, while it is possible to describe unilateral acts as being ‘strictly unilateral’ or not, in a descriptive way (some invite another manifestation of will and can form part of a bilateral process while some do not), a distinction amongst unilateral acts using autonomy as a legal and material criterion in order to hold different legal regimes apart will not achieve the desired result. In fact, even an offer, as the paramount example of a dependent act requiring another manifestation of will, is an autonomous unilateral act if looked at in more detail. It does not require another manifestation of will in order to have its legal effect. The legal effect of an offer is, of course, not to oblige the offeror to actually fulfil what he has offered, this will be the treaty’s effect which requires both, offer and acceptance. Yet, an offer has a legal effect, and it will have this effect the moment it is made. Looking at the quotation provided above, Suy’s characterisation of an offer to be of no (immediate) effect and on its own to be of ‘no import­ ance’ apparently rests on an offer’s following two characteristics. First, an offeror by making use of it does not become obliged to follow through with what he has offered to do (or offered to refrain from doing) unless the offer is accepted; and secondly, an offer is freely revocable until accepted. While both aspects correctly describe the nature of an offer, this does not mean that an offer has ‘no direct legal effect of its own’. To be sure, an offer does not commit the offeror to undertake what has been offered before any acceptance by the addressee, but only because this is the very condition laid out or inherent in any offer. The offeror ‘promises’ to do whatever he offered only if the offer is accepted. Hence, if an offer is a ‘true unilateral act’, ie a manifestation of will to which the apparently willed legal consequences are attached, the law would impose these exact terms onto the offeror and it would do so from the very moment the offer has been made vis-à-vis the addressee without waiting for any acceptance in order to do so. And indeed, this is precisely what international law does. Through the offer, but to a meeting of and a concordance between offer and acceptance, which takes us into the realm of the law of conventions. Without a doubt, each manifestation of will emanates from a single subject of international law; but they do not constitute unilateral acts because they do not have a legal importance of their own, and the legal effects are attached not to the respective manifestation of will but rather to the act resulting from the ensemble of different manifested wills. This act precisely constitutes the accord’ (my translation). 153   For Venturini, offer and acceptance for themselves indeed have: ‘aucune effet juridique’, Venturini, ‘Actes unilatéraux’, n 30 above, 413. See also Coumoul as cited in Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 106, note 4, along with Pfluger’s critical analysis, in which this position is rejected, ibid 105 et seq.



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offer, the declarant has established a legal condition that, if triggered, will lead to a future and further obligation. This unilaterally installed automatism along the lines of ‘accept, and I will be obliged to do X’ is set up by the offer and already significantly limits the offeror’s freedom of action. The self-imposed limitation becomes most apparent when the offeror has changed his mind, as he will find himself in the very unwelcome situation (the legal effect created by the offer) that a third state, by its manifestation of will (an acceptance), is able to create a new obligation for the offeror, even though the latter is not (any longer) consenting.154 In order to (again) alter the legal situation, the offer needs to be revoked before the addressee accepts it. This revocation is hardly made in order to cancel a mere ‘potential effect’; just as the sword of Damocles poses an immediate threat, so did the offer immediately create a now very unwelcome legal situation. It is precisely in order to cut down the sword and cancel this very direct effect, that the offer is revoked. The scenario is not much different than it is whenever a commitment is made which includes a condition. To describe the effect as merely ‘potential’ is inaccurate as the condition is ‘legally active’ from the very minute the offer is made. This effect is by no means negated if, with Suy, offers are held to be freely revocable before being accepted in international law,155 as it remains the reason why an offer needs to be revoked in the first place. Before and until it is revoked, it will have its effect of signalising consent to be bound according to the terms stipulated within it. To allow a state to take back its legal commitment and to require it to do so, does not mean it never existed. Indeed, an act of acceptance also has independent legal effect, although it is much harder to analyse, since it is necessarily the second step in a twostep procedure and makes direct reference in determining its legal effect to the previously made offer. But as Pfluger has pointed out,156 the fact that the legal order allows error, fraud and other vices to remain invokable by a party to invalidate its consent (see Vienna Convention, Articles 48 to 52) shows their continuing legal importance in obliging their declarants. They are not a legal zero which being added to another one will in sum rather miraculously give rise to a contract, but compelling unilateral acts which together give rise to the full contractual commitment.157 We are thereby not disregarding the fact that offer and acceptance will together give rise to a contract governed by a legal regime of its own, as stipulated in the Vienna Convention. Of course, a treaty is no unilateral 154   Usually, states are not able to create an obligation for other states against their will; see also ILC, Guiding Principles with Commentaries, n 4 above, Guiding Principle 9, also briefly addressed p 187. 155   Article 16 of the United Nations Convention on Contracts for the International Sale of Goods includes such a rule for offers in its field of application. 156   Pfluger, Einseitige Rechtsgeschäfte, n 11 above, 107. 157   See also Pfluger, ibid 105 et seq.

62  Delimiting the Subject: Promise as a Unilateral Act act. However, an offer is, as it constitutes a unilateral manifestation of will which has precisely and immediately the legal effect as willed by its author. What is true for the paramount example of an allegedly ‘dependent’ act, is similarly true for other acts such as the denouncement of a treaty on the basis of, for example, Vienna Convention, Article 60. It too is a unilateral act, despite being ‘linked’ (ie occurring in connection) with treaties, the only reason for which it was regulated in the rules governing the latter. Autonomy as a material concept based on an act’s effectiveness is therefore in our eyes not capable of distinguishing between acts covered by various legal regimes and singling out only those which are ‘truly’ unilateral. Interestingly, in a very recent publication, Eric Suy has himself expressed doubts and begun to ‘wonder if the constituent element of autonomy of unilateral acts should not be somewhat revised or shaded’.158 Indeed, in this author’s opinion it should be given up as a material criterion.159 Doing so does not, of course, mean that an offer as a unilateral act might not be covered by special rules, rules that have been shaped for it precisely on account of some of its peculiarities. These rules are then to be applied on account of the lex specialis principle and not a lack of autonomy. Secondly, it clearly remains possible to differentiate between an offer and a promise. As described, for the present writer both are, however, unilateral acts with an ‘autonomous’ legal effect. Yet, only the former asks (if only tacitly) for an acceptance in order to establish the obligation offered, while the latter does not do so. This condition, inherent in any offer, thereby clearly distinguishes both acts from each other,160 and as a gateway into the law of treaties has attracted special rules to be applicable to it. But before returning to this aspect,161 the other source of ‘dependency’ needs to be addressed. (ii)  Independence of Another Multilateral or Bilateral Act? In his book, Suy argues for a second prong in the determination of independency and wants to exclude all acts as not autonomous which are based on a clause included in a treaty, these acts being at their basis nothing but the execution of a bi- or multilateral act.162 Following this understanding, a treaty which lays down a rule according to which a unilateral 158   Eric Suy, ‘Unilateral Acts as a Source of International Law: Some New Thoughts and Frustrations’ in Droit du pouvoir, pouvoir du droit: mélanges offerts à Jean Salmon (Brussels, 2007) 634–35. 159   See also Nguyen, Pellet and Daillier, Droit international public, n 30 above, 362, para 238: ‘Aucune objection sérieuse ne peut être opposée à une définition large de la catégorie des actes unilatéraux, si l’on ne se place pas sur le terrain des sources du droit’. For the question whether promises are a source of international law, see pp 176–83. 160   For more see p 228. 161   For more see p 68. 162  Suy, Actes unilatéraux, n 11 above, 31 et seq.



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act can subsequently create, alter or revoke a legal effect is said to be executed through that act; the act’s very existence and its effects are understood to have been conditioned and determined by a bi- or multilateral act. Accordingly, for Suy the act lacks an ‘autonomous’ existence and is not legally effective in and of itself. For Suy these acts are in effect the acceptance of an offer made within the treaty: ‘Ces déclarations unilatérales de forme ne sont qu’autant d’acceptations d’une offre faite dans la disposition conventionnelle qui les prévoit’.163 In the same vein, while, as indicated, even going further, the Special Rapporteur wrote: Of course, the unilateral acts in question are autonomous or independent of preexisting juridical norms, for, as noted in the first report on this topic, a State can adopt unilateral acts in the exercise of a power conferred on it by a pre-existing treaty or customary norm. This appears to be the case with regard to, inter alia, unilateral legal acts adopted in connection with the establishment of an exclusive economic zone. Such acts, while of domestic origin, produce international effects, specifically, obligations for third States which did not participate in their elaboration. Naturally, such acts go beyond the scope of strictly unilateral acts and fall within the realm of treaty relations.164

On the basis of this part of the ‘autonomy test’ a great variety of acts were diagnosed as not unilateral. Amongst these were acts of states establishing an exclusive economic zone, as mentioned in the quotation above, as well as declarations made according to ICJ Statute, Article 36(2),165 also silence,166 acts leading to the international responsibility of a state,167 countermeasures,168 interpretative declarations,169 and any act made in the course of proceedings before international tribunals.170   Ibid 33.   Cedeño, Second Report, n 3 above, para 62, emphasis added. See also Cedeño, First Report, n 3 above, para 27, speaking of ‘the absence of a connection with a pre-existing act or norm or other manifestation of will’. 165   See Suy, Actes unilatéraux, n 11 above, 31, 142 et seq; Cedeño, First Report, n 3 above, para 115, who seems to be excluding these acts more because they depended on another unilateral act and gave rise to a treaty relationship. For more on this aspect see p 69. 166  Cedeño took the notion of autonomy even further when he stated ‘silence cannot be an independent manifestation of will, since it is a reaction to a pre-existing act or situation’, Cedeño, Third Report, n 3 above, para 131, emphasis added. See also Cedeño, Fourth Report, n 18 above, para 26 ‘silence cannot be considered an autonomous manifestation of will, since it is a reaction’. 167   As it seemed ‘difficult to conceive of an act which gives rise to the international responsibility of a State without being linked to the violation of a pre-existing norm, particularly the primary norm which the act in question is alleged to violate’, Cedeño, Second Report, n 3 above, para 9. 168   Cedeño, Fourth Report, n 18 above, para 42, since they were ‘linked to a pre-existing commitment’. 169   Since they formed part of a treaty-based relationship, Cedeño, First Report, n 3 above, para 99. 170   Ibid para 125 et seq, as ‘they should be placed within the context of the treaty which founds the jurisdiction of the tribunal concerned’, at para 126. 163 164

64  Delimiting the Subject: Promise as a Unilateral Act In the course of discarding acts on the basis of their lacking autonomy, this concept was apparently watered down to the extent that ‘reactive behaviour’ as such or any acts ‘linked’ to a pre-existing norm or even situation were to be excluded.171 However, focusing on ‘reactive behaviour’ (as argued when excluding silence) would mean employing a useless criterion when it comes to distinguishing amongst unilateral acts of states; both, protest and recognition are also ‘reactions’ but widely accepted as constituting unilateral acts, even autonomous ones, by those relying on this criterion. The term ‘link’ also does not provide for any delimitation if used as a material concept, nor explain an exclusion unless employed in a merely descriptive way to indicate which acts are likely to be covered by a lex specialis.172 But even if confined to the above-mentioned quotation, ie the dependency on a pre-existing norm, the suggested definition of dependency cannot convince. The Special Rapporteur clearly went too far by wanting to exclude even acts based on pre-existing customary norms as nonautonomous, as then practically all unilateral acts would be disqualified. During the debate on autonomy within the ILC, it was rightly pointed out that every legal act depended on a pre-existent legal rule in order to become legally effective.173 And indeed, the Special Rapporteur seems to have subsequently acknowledged this fact in his Third Report in which he limited his understanding of autonomy to mean only autonomy from other ‘manifestations of will’: it can be stated that unilateral acts do not depend on an earlier act, that is to say, on an earlier expression of will, although it is true that all unilateral acts are based on international law;174

and: While it is true that a legal act is linked to earlier rules, particularly rules of general international law, this very broad approach cannot be the yardstick for determining the autonomy of the act. The point is to exclude, by means of this criterion, acts linked to other regimes, such as all acts linked to treaty law.175

This essentially leaves us with the question already brought up by Suy, whether an act which finds its legal basis in a treaty can be said to ‘depend’ on it and should accordingly be seen as not a truly unilateral but really a consensual act, that is thus regulated by the law of treaties. The mere fact, however, that a treaty clause allows for a state to issue a 171   See above in relation to the exclusion of various acts of states, especially nn 166–68 above. 172   For this (in our eyes) favourable approach, see p 67 et seq. 173   See Pellet, ILC, 2603rd meeting, n 133 above, para 19: ‘In his opinion, there was always an international rule to which all unilateral acts could be traced’. 174   Cedeño, Third Report, n 3 above, 11, para 60. 175   Ibid 11, para 61.



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legal act does not suffice to confer a contractual nature on this sort of state action or turn it into the acceptance of an offer made within the treaty.176 This point has already and formidably been made by Jacqué, who has illustrated the consequences the above-described definition would have for acts of international organisations: as an international organisation is created through a treaty and therefore derives its legal powers from a consensual framework, its acts would have to be judged as never in fact being unilateral but always contractual. Despite the fact that we are not going to deal with unilateral acts of international organisations, the criticism voiced by Jacqué in this regard is also to the point in the present context (my translation provided in footnote): Ce n’est pas parce qu’un traité confère certaines compétences à un organe international que tous les actes adoptés par cet organe seront des actes conventionnels. Il ne faut pas confondre la convention dont l’organe tient sa compétence avec les actes de cet organe. La volonté unilatérale émise par celui-ci ne rencontre pas la volonté des Etats parties à la convention et ne forme pas avec elle un accord de volonté. Ce n’est pas la convention qui donne naissance à l’acte unilatéral, elle en prévoit simplement l’existence. L’acte est créé par une manifestation de volonté de l’organe compétent, il est unilatéral.177

The same is true for a state’s unilateral act ‘made in the execution of a treaty provision’. The provision itself cannot be said to have issued the act, it merely establishes the possibility for the contracting state to create a certain legal effect in the future. It is therefore the legal basis on which the state may act. If it does so, the legal effects are, however, created by its own manifestation of will, which merely becomes legally effective because of the existing treaty norm. It is not a consensual act which establishes the width of a nation’s exclusive economic zone or territorial sea, but a state’s single manifestation of will to do so. To construe this declaration as an acceptance of an offer made within the respective treaty, misconstrues the latter. States do not offer each other to thereby establish together the width of various national maritime zones, they merely agree on abstract rules that are accepted amongst them as legally binding and which allow for a state to act unilaterally within the margin prescribed.178 176   Even if true, we would, as indicated above, hold acceptance to be a unilateral act, only covered by a lex specialis. 177   Jacqué, Eléments, n 1 above, 325: ‘By conferring certain competences on an international organ not all acts adopted by said organ will become conventional acts. One should not confound the convention from which the organ derives its competence with the acts of this organ. The unilateral will issued by it does not encounter the will of the State parties to the convention and does not form an accord with them. It is not the convention which gives birth to a unilateral act, it simply foresees its existence. The act is created by a manifestation of will of the competent organ, it is unilateral’ (my translation). 178   See ICJ, Fisheries (1951), n 14 above, 132: ‘Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law’.

66  Delimiting the Subject: Promise as a Unilateral Act These abstract rules are agreed upon by consensus, not the acts which follow, which remain distinct from the consensual norm-building process and still constitute (purely) unilateral acts. Their being ‘based’ on a treaty provision as regards to their binding force hence does not turn them into a consensual act.179 In this regard the following passage contained in the Joint Dissenting Opinion of Judges Spender and Fitzmaurice in the South West Africa cases, to which Jacqué and others have already drawn attention, is of interest. In discussing the mandate’s true legal nature both judges stated that: We might add, what it should scarcely be necessary to say, that the fact that an act is done under an authority contained in an instrument which is itself a treaty (in this case the League Covenant) does not per se give the resulting act a treaty character.180

And: The second assumption is that if an act or instrument follows upon certain antecedent consents, this entails that it is itself an agreement. This is not the case. We have already cited cases such as those under Article 17 of the Charter; and we could cite numerous examples drawn from private law, of acts which can follow upon various consents and agreements, but which are themselves of quite a different character. Even legislative acts can follow upon certain consents, and there may even be, and often is, a constitutional requirement that these should have been obtained. Yet when a Head of State issues a Decree or Order, and the latter recites (as it often does) that it is made ‘by and with the consent’ of his Council, or of some other body, this does not impart even a vestige of a contractual character to the resultant act.181

Such clauses will therefore empower a state to act the way it does by laying down a normative framework but will not in any way classify the subsequent conduct as consensual or unilateral. The legal basis allowing a state to act by means of a unilateral act in a legally effective way (the ‘sources’ of law question, be it a customary rule, a general principle or a treaty) must hence be kept apart from the question whether the act itself is unilateral or not.

179   See also the critique by Alain Pellet, ‘Commentary to Art. 38 ICJ Statute’ in Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm (eds), The Statute of the International Court of Justice: A Commentary (Oxford, 2006) 677–792, MN 9, where he criticises Suy’s approach as not in line with reality: ‘certainly, a State against which action is taken by, eg, the Security Council under Arts 41 or 42 of the Charter, cannot be deemed to have “agreed” to that measure’. 180  ICJ, South West Africa (Ethiopia and Liberia v South Africa), Preliminary Objections, Dissenting Opinion Spender and Fitzmaurice, [1962] ICJ Rep 465, 491. 181  Ibid.



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(iii)  It’s Really All about Lex Specialis What should be recalled at this point is the function the classification of acts into autonomous ones and dependent ones was supposed to have. This distinction was used in order to identify state action which could be grouped under a similar judicial regime and to exclude those acts which are governed by a different set of rules, especially by the law of treaties. While this is a sensible cause, we have seen that to relate to legal effectiveness does not rule out an offer or denunciation of a treaty from the realm of unilateral acts. Yet, they are in part regulated within the law of treaties. Also, to stipulate that all acts based on a treaty are automatically outside the realm of unilateral acts is false, as many may indeed constitute unilateral manifestations of will with legal effect, for which the law of treaties will provide no adequate answers, as the consensual element is missing in the act itself. Neither prong of the autonomy test is therefore capable of validly distinguishing between acts which will be governed by the law on unilateral acts, and those which will be covered by any other different legal regime. In our eyes, this is not surprising, as the analysed concept of autonomy assumes a material difference, which separates the truly unilateral acts from those governed by other regimes. It is one thing to say that offer and acceptance are peculiar unilateral acts (as they form the integral part of a process which creates a bilateral legal relationship) with special rules being applicable to them. It is something very different to stipulate a general divide between unilateral acts, arguing that some acts are ‘more’ unilateral than others. All acts issued by a single subject of international law having the apparently willed legal effect by themselves are and remain unilateral acts. The question is merely whether the ‘default rules’ on unilateral acts are going to be applicable to them, or whether a set of special rules already exists and applies to the act in question. In the words of Alain Pellet, who argued very much in favour of such an approach within the Commission: The Commission, which wanted to produce a general system of unilateral acts and not a list of special regimes, could leave aside certain unilateral acts, such as ratification or reservations, because they were governed by special rules, but not because of their lack of autonomy.182

The matter is therefore one of lex specialis. 182   Pellet, ILC, 2525th meeting, n 8 above, para 43. See also Pellet, ILC, 2603rd meeting, n 133 above, para 13. The Report by Candiotti as Chairman of the ILC 1998 Working Group, ILC, Summary Record of the 2543rd Meeting, UN Doc A/CN.4/SR.2543 (1998) para 3, actually proposed an Article which would have adequately reflected this approach: ‘Another article might be based mutatis mutandis on Article 3 of the 1969 Vienna Convention and refer to unilateral acts not covered by the draft articles, stating, for example, that the draft articles did not apply to unilateral acts governed by other specific legal regimes, such as the law of treaties, the law of the sea, the law of international arbitral or judicial procedure, the rules relating to neutrality and war, without prejudice to the legal force of such unilateral acts and the application to them of the rules set forth in the draft articles to which they would

68  Delimiting the Subject: Promise as a Unilateral Act (a)  Acts Governed by the Law of Treaties Various unilateral acts made in connection to treaties are indeed governed by rules that are to be found in the Vienna Convention on the Law of Treaties.183 For example, even though the terms ‘offer’ and ‘acceptance’ are not employed by the Vienna Convention, which sets up a highly formalised procedure through which offer and acceptance will be hard to hold apart, the manifestation of a will to be bound by a treaty remains a unilateral act. It is, however, regulated by the Vienna Convention (Article 11 et seq), just as the denouncements or termination of international agreements are (Articles 54, 56 and 60), and declarations indicating the suspension of a treaty (Articles 57, 60). As indicated, we do not hold any of these to be per se different from other unilateral acts. The reason for finding regulations in the Vienna Convention is simply that all of them are unilateral acts which will typically arise in the context of the conclusion, termination or modification of treaties. In a merely descriptive way you could say they are ‘linked’ to the realm of the law of treaties and it consequently made sense to draw up a regulation for them within this area. It is important to note that dropping the autonomy aspect and following what might be termed a lex specialis approach does not render the distinction amongst unilateral acts obsolete. Every single rule that develops for a certain type of unilateral act makes it necessary to differentiate whether the act in question is one to which the rule will or will not apply. By refraining from relying on a general criterion such as autonomy, which attempts to divide all unilateral acts according to their effectiveness into two groups, it remains necessary to look at the rule in question and the terms it stipulates, in order to establish whether this rule will be applicable or not. Of great importance to our present study, therefore, is the distinction between an offer and a unilateral promise, as different rules apply to them. We will address the problem of holding the two apart in practice a little later,184 the point being made here is only one of theory. Offer and ‘promise’ are quite similar unilateral acts in their appearance with, however, very different legal regimes being attached to them. An offer is considered freely revocable and ‘promises’ a further obligation only in the case of it being accepted, which if done (even tacitly) will give rise to a treaty relationship. A promise, on the other hand, does not ask for an acceptance but conveys the promibe subject under international law, independently of the draft articles, and to the extent that the specific regimes in question did not contain any special rules on particular aspects’. The principle lex specialis derogat legi generali has been identified by the ILC as a ‘generally accepted technique of interpretation and conflict resolution in international law’, see ILC, Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law in (2006) II YB International Law Commission pt 2, para 5. 183   See also Tomuschat, ‘Unilateral Acts’, n 30 above, 1489. 184   For this aspect see also p 228.



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sor’s will to create an immediate and unconditional legal obligation, once it is made known to the addressee. It is in this context that the ICJ has therefore used the word ‘strictly’ unilateral to describe the nature of a promise. As already seen, the Court in the Nuclear Tests cases stipulated that: nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.185

Merely in this sense – to distinguish a promise from an offer which invites an acceptance – the Court employed the term ‘strictly’ unilateral (while also making it clear that a unilateral commitment can as such create a binding obligation).186 A unilateral act, an offer, can hence be clearly delimited from our actual subject matter, a promise, and will therefore as such not be under further scrutiny in the following pages, except where a delimitation between the two acts is necessary. (b)  Declarations Made Pursuant to ICJ Statute, Article 36(2) Declarations made according to ICJ Statute, Article 36(2)187 are also sometimes excluded from the study on unilateral acts. For Suy they are not autonomous and constitute an example for acts made ‘in the execution of a treaty’.188 The Special Rapporteur agrees and considers them to be ‘formal’ unilateral acts which, however, gave rise to a treaty relationship and ‘should be looked at in the context of treaty law’.189 Having rejected distinguishing between dependent and independent acts in the way both authors have done, and in view of the fact that declarations made under the ‘Optional Clause’ are indeed to be regarded as having been made by states with the intent to undertake a legal commitment to comport themselves in a certain  ICJ, Nuclear Tests (Australia v France), Judgment (1974), n 25 above, 267, para 43.   This quotation should not be mistakenly understood as establishing the autonomous/ non-autonomous distinction that Suy and the Special Rapporteur have both endorsed. By using this wording the ICJ has merely underlined that declarations which constitute promises do not ask for nor need any quid pro quo or acceptance from the addressee in order for the promised obligation to arise, which distinguishes them from offers. In this sense a promise is strictly unilateral while an offer is not, as it opens the door for a bilateral relationship. The ICJ, however, has not thereby described an offer as being devoid of immediate legal effect nor has it held it not to be a ‘substantive’ unilateral act. 187   ICJ Statute, Art 36(2) reads as follows: ‘The States parties to the present Statute may at any time declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation’. 188   See p 62 et seq. 189   Cedeño, First Report, n 3 above, para 116 et seq, quoted passage from ibid para 117. 185 186

70  Delimiting the Subject: Promise as a Unilateral Act manner within the future, they nevertheless may be of interest here. The important question is whether a regime of lex specialis exists (be it the law of treaties or one that has developed only for these kind of declarations on account of their peculiarity), that establishes norms which will supersede the ones usually applicable to unilateral promises. The ICJ has had numerous opportunities to describe the legal nature of these declarations on account of them frequently forming the (only) basis for its jurisdiction. In doing so, it has left little room to doubt their unilateral nature: Declarations of acceptance of the compulsory jurisdiction of the Court are facultative, unilateral engagements, that States are absolutely free to make or not to make. In making the declaration a State is equally free either to do so unconditionally and without limit of time for its duration, or to qualify it with conditions or reservations . . . However, the unilateral nature of declarations does not signify that the State making the declaration is free to amend the scope and the contents of its solemn commitments as it pleases. In the Nuclear Tests cases the Court expressed its position on this point very clearly.190

The ICJ went on to cite the relevant passage from the Nuclear Tests cases according to which declarations made with the intention of becoming bound are turned into a legal undertaking.191 It subsequently continued as follows: In fact, the declarations, even though they are unilateral acts, establish a series of bilateral engagements with other States accepting the same obligation of compulsory jurisdiction, in which the conditions, reservations and time-limit clauses are taken into consideration. In the establishment of this network of engagements, which constitutes the Optional-Clause system, the principle of good faith plays an important role.192

Subsequently, again, the Court cited the Nuclear Tests cases, this time as underlining the fact that the need for respect of good faith and confidence in international relations explains not only the pacta sunt servanda principle but equally the binding character of an international obligation assumed by unilateral declaration. To begin with (and more as a side note), one cannot fail to notice how this passage constitutes another blow for a theory of autonomy used in order to delimit different legal regimes. After having cited the Nuclear Tests cases, ie the landmark decision for the bindingness of an (autonomous) unilateral act, ie a State’s promise, the ICJ has no problem elaborating that 190  ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Jurisdiction and Admissibility, Judgment of 26 November 1984, [1984] ICJ Rep 392, 418, para 59. 191   For the Nuclear Tests cases see pp 116–38. 192  ICJ, Military and Paramilitary Activities in and against Nicaragua (1984), n 190 above, 418, para 60.



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these unilateral acts in fact give rise to a series of bilateral engagements with states accepting the same obligation. Also, by using the Nuclear Tests cases in analysing the legal effects of declarations made under the Optional Clause, a treaty provision, the Court clearly rejects excluding declarations which may be considered ‘linked to’ or ‘based on’ a treaty from the legal regime on unilateral acts. As we have indicated above in relation to a treaty offer, the Court is absolutely right in saying so. As with an offer, declarations providing for the jurisdiction of the Court are not to be excluded by declaring them to be ‘non-autonomous’. Yet, they may have special rules applicable to them. More importantly, though, the cited passage proves the importance of holding apart the initial question whether a declaration constitutes a unilateral act, from the subsequent one inquiring as to what kind of legal relationship the act might give rise and whether certain peculiarities or norms established for it might warrant a legal treatment that deviates from the one usually applicable to unilateral acts intended to create new commitments, that is, promises. Here it is necessary to take one step at a time, though. The declarations in question are clearly unilateral manifestations of a state’s will to create a legal obligation to comport itself in a certain manner in the future. The ICJ has been crystal clear on this point in the above-cited Military and Paramilitary Activities in and against Nicaragua judgment. This assessment is of importance and has, for example, led it to emphasise the special importance of the intention of the state accepting the compulsory jurisdiction when interpreting such declarations. The method of interpretation can for this reason differ from the one applicable to treaties.193 In interpreting a declaration made by Iran in relation to which a legal dispute arose, the Court also addressed the question whether an appropriate interpretation would need to attach special importance to each and every word employed by the declarant. According to the Court: It may be said that this principle should in general be applied when inter­ preting the text of a treaty. But the text of the Iranian Declaration is not a treaty text resulting from negotiations between two or more States. It is the result of unilateral drafting by the Government of Iran.194 193   According to the Court ‘the regime relating to the interpretation of declarations made under Article 36 of the Statute is not identical with that established for the interpretation of treaties by the Vienna Convention on the Law of Treaties’, ICJ, Fisheries Jurisdiction (1998), n 149 above, 453, para 46. See also ibid 454, para 48: ‘the Court has not hesitated to place a certain emphasis on the intention of the depositing State’. See also ICJ, Anglo-Iranian Oil Co. (United Kingdom v Iran), Preliminary Objections, Judgment of 22 July 1952, [1952] ICJ Rep. 93, 104: ‘It must seek the interpretation which is in harmony with a natural and reasonable way of reading the text, having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court’. Emphasising the difference to be at most only very slight, Christian Tomuschat, ‘Commentary to Art. 36 ICJ Statute’ in Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm (eds), The Statute of the International Court of Justice: A Commentary (Oxford, 2006) 627, MN 65. 194  ICJ, Anglo-Iranian Oil Co (1952), n 193 above, 105.

72  Delimiting the Subject: Promise as a Unilateral Act The very fact that the declarations in question are to be qualified as unilateral acts has therefore influenced the rules of their interpretation. While this is an important starting point, the question remains open whether specific legal rules are applicable to declarations under the Optional Clause. As with an offer, which is initially governed by the general rules on unilateral acts (unless otherwise established), the legal setting might rapidly change and move into the conventional sphere once additional elements are present. Questions of, for example, revocation or modification would then have to be answered in the face of a legal background very different from the one present when making a ‘standard’ promise. Reasons to consider the legal regime governing the declarations under the Optional Clause to be different are connected to the fact that the ICJ Statute has made room for a unilateral declaration which is quite unique. Through it a state accepts the compulsory jurisdiction only ‘in relation to any other State accepting the same obligation’.195 The ICJ Statute therefore allows and assumes an element of reciprocity for the commitment undertaken which is not present in a standard unilateral undertaking and might significantly alter the nature of the act in question. In this regard, declarations under the Optional Clause are not easy to grasp. The Court itself has interpreted them to include both, an ‘acceptance’ as well as a ‘standing offer’ when it said: Any State party to the Statute, in adhering to the jurisdiction of the Court in accordance with Article 36, paragraph 2, accepts jurisdiction in its relations with States previously having adhered to that clause. At the same time, it makes a standing offer to the other States party to the Statute which have not yet deposited a declaration of acceptance. The day one of those States accepts that offer by depositing in its turn its declaration of acceptance, the consensual bond is established and no further condition needs to be fulfilled.196

Employing the terms ‘offer and acceptance’ would suggest that we are in the presence of not only a consensual bond but also a contractual one, once two ‘matching’ declarations exist. And indeed, the ICJ, especially in an earlier judgment, has expressly spoken of a ‘contractual relation’ between the parties.197 In its more recent rulings, and especially in its   See the wording of ICJ Statute, Art 36(2), n 187 above.  ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Preliminary Objections, Judgment of 11 June 1998, [1998] ICJ Rep 275, 291, para 25. 197  ICJ, Right of Passage over Indian Territory (Portugal v India), Preliminary Objections, Judgment of 26 November 1957, [1957] ICJ Rep 125, 146: ‘The Court considers that, by the deposit of its Declaration of Acceptance with the Secretary-General, the accepting State becomes a Party to the system of the Optional Clause in relation to other declarant States, with all the rights and obligations deriving from Article 36. The contractual relation between the Parties and the compulsory jurisdiction of the Court resulting therefrom are established, ‘ipso facto and without special agreement’, by the fact of the making of the declaration’, emphasis added. See also Hersch Lauterpacht, Law of Treaties, Report of the Special Rapporteur, reproduced in (1953) II YB International Law Commission 90, 101. 195 196



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opinion in the Military and Paramilitary activities in and against Nicaragua judgment cited above, it has, however, followed a different approach. According to it: the declarations, even though they are unilateral acts, establish a series of bilateral engagements with other States accepting the same obligation of compulsory jurisdiction.

This ‘series of bilateral engagements’ is, however, not a ‘series of bilateral treaties’ or engagements covered by treaty law. ICJ Statute, Article 36(1) already allows for a ‘compromis’, a special ad hoc agreement by the parties. Declarations under the Optional Protocol in case of overlap display a consensus amongst two parties on the same issue, that of the Court’s jurisdiction. This consensus is, however, not brought about by a meeting of minds between the parties concerned; the declarations made are not, as offer and acceptance are, carefully crafted in order to reach a mutual accord. Furthermore, each state unilaterally tailors an instrument of its own choosing and deposits it with the Secretary-General. It is then for the ICJ to consider the declarations’ overlap, if any, once a dispute arises. Article 36(2) has therefore rightly been characterised as having been ‘conçues plus pour éviter une rencontre des volontés que pour la provoquer’.198 Declarations made under Article 36(2) are consequently of immediate, direct and full legal effect the minute they are made, which means deposited with the Secretary-General according to Article 36(4). As sovereign acts of unilateral commitment they are open to all kinds of reservations without being subject to the limits set out by Vienna Convention, Articles 19 to 22. The difference between the legal relationships they give rise to from that constituted by a treaty becomes clearest in view of a state’s decision to withdraw its undertaking. The ICJ does not inquire whether the other parties to the Optional Clause system do or have at any time consented to a state’s wish to revoke its declaration, as it would have to if the declarations gave rise to a contractual bond. In the Military and Paramilitary activities in and against Nicaragua judgment, the Court opined as follows: Although the United States retained the right to modify the contents of the 1946 Declaration or to terminate it, a power which is inherent in any unilateral act of a State, it has, nevertheless assumed an inescapable obligation towards other States accepting the Optional Clause by stating formally and solemnly that any such change should take effect only after six months have elapsed as from the date of notice.199 198  Paul Reuter, ‘Principes de droit international public’ (1961) 103 Recueil des Cours de l’Académie de Droit International de La Haye 431, 575 (‘designed rather in order to evade a meeting of minds than to provoke it’, my translation). 199  ICJ, Military and Paramilitary Activities in and against Nicaragua (1984), n 190 above, 419, para 61, emphasis added.

74  Delimiting the Subject: Promise as a Unilateral Act Note that, were the quotation to finish its sentence after ‘Optional Clause’, it might be misunderstood as pointing to the pacta sunt servanda principle; the Court, however, continued by stressing the formal and solemn commitment, thereby remaining very much within the doctrine of unilateral commitments based on the Nuclear Tests cases to which it already made reference twice within this ruling. With respect to declarations of infinite duration it adds that: the right of immediate termination of declarations with indefinite duration is far from established. It appears from the requirement of good faith that they should be treated, by analogy[!], according to the law of treaties, which requires a reasonable time for withdrawal from or terminations of treaties that contain no provision regarding the duration of their validity.200

The resulting legal network has hence been characterised as follows: through uncoordinated unilateral declarations a system emerges which resembles to some extent a multilateral treaty, but does not provide the same expectations of stability and reliability since it is not placed under the proposition of pacta sunt servanda or declaratio est servanda.201

Treaty law is therefore not applicable even in relation to two overlapping declarations.202 By pointing out that declarations under the Optional Clause are not based on a principle of ‘declaratio est servanda’, Christian Tomuschat in the above-cited passage underscores the fact that declarations as unilateral acts,203 while not freely revocable,204 are not governed by a principle that would establish the same level of irrevocability comparable to the rigid principle of pacta sunt servanda. While being unilateral acts, declarations under the Optional Clause may hence have special rules applicable to them, especially on the basis of the reciprocity element established by the ICJ Statute. In chapter three on the Law on Promises, caution will therefore be used when contemplating whether rules identified by the Court in relation to declarations made under the Optional Clause are transferable to promises in general, or in fact constitute a lex specialis applicable only in this limited area. Unlike the assumption of a lack of autonomy, such declarations, however, are not per se discarded from the realm of unilateral acts or the reach of our topic.205 The ICJ’s   Ibid, emphasis added.   Tomuschat, ‘Art. 36 ICJ Statute’, n 193 above, 627, MN 64. On the revocability of promises see pp 251–76. 202   See also Juan José Quintana, ‘The Nicaragua Case and the Denunciation of Declarations of Acceptance of the Compulsory Jurisdiction of the International Court of Justice’ (1998) 11 Leiden Journal of International Law 97, 110–11. 203   See Tomuschat, ‘Art. 36 ICJ Statute’, n 193 above, MN 64. 204   Ibid MN 64–69. 205   Considering declarations under the Optional Clause to be a ‘special kind of promise’ also Degan, ‘Unilateral Act’, n 30 above, 209–21. See also Jacqué, Eléments, n 1 above, 333–35; Charpentier, ‘Engagements unilatéraux’, n 30 above, 368, para 4; Quintana, ‘The Nicaragua Case and the Denunciation of Declarations of Acceptance’, n 202 above, 111. 200 201



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findings on declarations under the Optional Clause will therefore not be cast aside as a priori irrelevant. (c)  Declarations Made During Judicial Proceedings As the ‘History of Promises’ will show, assurances made by state representatives before the Permanent Court of International Justice (PCIJ) were amongst the first to be attributed a legally binding character. The ICJ, in a similar vein, later placed reliance on declarations made before it. Yet, both courts have remained silent on how this bindingness was brought about. As will be seen, the declarations in question can hardly be construed, nor were they treated by the parties or the courts, as offers that were to be accepted. States instead proclaimed a certain future conduct that benefited the other party as a ‘given’, usually in order to convince the court in question that certain state action (such as an expropriation) was out of the question and hence need no longer be contemplated by the judges in their legal assessment. While these declarations never asked for an acceptance, there is similarly no indication that either the declarant state or its beneficiary considered the declarations made as being an offer to be subject to an international treaty that needed to be accepted, thereby possibly giving rise to domestic parliamentary ratification requirements. To assume a contractual bond between the declarant and the court, a theoretical second alternative for the declarations’ binding nature, is nothing more than that: theoretical and similarly unconvincing. Not only might the court’s legal personality to conclude such a contract be questionable, but any such dogmatic construction would also hardly be in touch with social realities. Neither the PCIJ nor the ICJ even indicated that they were accepting the declarations as an offer made but instead usually took note of the declaration and recognised its binding character. The conclusion therefore seems to be rather straightforward: the declarations are not only (here there can be little dispute) unilaterally drafted but are indeed unilateral binding commitments. Yet, the answer provided by legal commentators is far from unanimous in this regard. While several authors indeed draw this conclusion and include cases which involve declarations made before international courts in their account of promises in international law,206 the Special Rapporteur chose to discard such declarations from the outset, precisely on account of them having been made before a court. But a clear doctrinal reason for this approach remains hard to grasp. According to his First Report: these declarations do not seem to be truly autonomous, even though they may contain a promise, a waiver or a recognition; rather they should be placed 206   See, eg Suy, Actes unilatéraux, n 11 above, 129–31; Fiedler, ‘Unilateral Acts’, n 2 above, 1019; Venturini, ‘Actes unilatéraux’, n 20 above, 398.

76  Delimiting the Subject: Promise as a Unilateral Act within the context of the treaty which founds the jurisdiction of the tribunal concerned. Moreover, the obligations which a State may assume through such a declaration are related to the claim or legal position of the other State party to the proceedings, which makes it difficult to classify them as autonomous from this point of view.207

But what does this mean? The wording to ‘place’ such declarations ‘within the context of the treaty which founds the jurisdiction of the tribunal’ is extremely vague. As the short analysis provided above, and the longer one vis-à-vis the notion of autonomy, have by now hopefully shown, the mere ‘connection’ to a treaty is insufficient to discard an act as unilateral or not. Moreover, the present writer is not aware that the Statutes of the PCIJ or ICJ declare statements made before them to be binding upon their author and might thereby form the basis of a special legal act employable (only) before these courts. When Alfred Rubin, also, considers all such declarations as ‘hardly unilateral’ since they were ‘made in a context of multilateral formality’ with ‘the integrity of the tribunal [being] involved directly’,208 he too offers no legal explanation for the bindingness of these declarations as assumed by both courts. What is the legal rule supporting the legal bindingness, what is the legal regime applicable to declarations ‘made in the context of multilateral formality’? Surely an offer made before a tribunal to the other state will remain an offer, an acceptance an acceptance, and the legal relationship resulting will be a treaty that is binding upon the parties not because of some connection to the tribunal but because there is a legal rule of pacta sunt servanda. Unilateral declarations made before an international court will similarly have to have a legal basis explaining their bindingness. Indeed, the treatment of such declarations as unilateral acts is not only important when trying to identify legal precedents for, in our case, promises but would quickly move to the centre of attention if a state wanted to revoke such a declaration qualified as binding by a court, or, for example, claimed a fundamental change in circumstances in order to terminate the declaration’s effect. Authors treating all such declarations as special and different on account of them being ‘connected to the jurisdiction of the court’ would need to provide a more detailed answer in respect of the legal character and norms applicable to such special declarations, such as why a recognition, protest or promise before a court might be a different legal act than the very same statement made outside the courtroom. The only feasible way of distinguishing unilateral declarations before tribunals considered as binding from other unilateral declarations, is not to negate their unilateral character but to argue that it was the legal forum with its heightened degree of formality which allowed reliance to 207 208

  Cedeño, First Report, n 3 above, 26, para 126.   Rubin, ‘Unilateral Declarations’, n 146 above, 3.



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be reasonably placed upon oral declarations made by state agents in the proceedings as actual legal undertakings. The difference between the two approaches depicted is not as slight as might first seem, as now the focus is shifted towards a different question, which is whether the required amount of formality that allows the addressee and the court to infer an intent to make a binding commitment and to be able to rely on a unilateral declaration can only be achieved through the courtroom setting. In other words: is the courtroom the only venue in which unilateral acts will become binding or can the judges’ bench be ‘replaced’ through other means, such as, for example, the deposition of a declaration with the UN Secretary-General, official notification or a particularly solemn proclamation using clear and specific wording? As the ‘History of Promises’ will show, the latter has come to be the case. That is to say, declarations of recognition or protest, waivers and promises made before international courts are and remain unilateral acts. A declaration treated by the tribunal as giving rise to a new legal obligation is thereby a ‘true promise’. The only difference between declarations in the courtroom and those outside is that the special setting in the first case will allow us to assume an intention of the declarant to become legally bound to his words more easily than when no such special setting is present, since a state representative must be aware of the forum he or she is speaking in, and is thereby put on notice that even the spoken word is recorded and has to be very carefully chosen. That, however, does not mean that only a courtroom setting will allow unilateral declarations to be relied upon as binding commitments, nor does it exclude statements made in such venue from the ambit of this study. (d)  A Brief Note on Other Acts Usually Excluded Not all unilateral state action usually excluded on the basis of the ‘autonomy test’ will be addressed here in as great a detail as acts falling into the realm of the law of treaties and declarations made under the Optional Clause or during judicial proceedings have been. It should by now go without saying that none of them can, in this writer’s opinion, be per se excluded from the legal regime applicable to unilateral acts in general or that of promises in particular. Declarations delimiting maritime boundaries, if proclaimed at the international level or notified to other states, are unilateral acts with legal effect in international law. Unless covered by a lex specialis, the legal framework for unilateral acts will therefore be applicable, and more precisely that of promises, which will, however, be called upon only in exceptional cases, since it is not primarily in order to undertake a new obligation vis-à-vis an addressee that such declarations are made.209 209   Consider, however, the example provided by Tomuschat, ‘Unilateral Acts’, n 30 above, 1490.

78  Delimiting the Subject: Promise as a Unilateral Act The exclusion of silence on the basis of it being non-autonomous ‘reactive behaviour’ has already been declined.210 Yet, silence, if legally relevant, will be so either as tacit recognition or because it is interpreted as tacit acceptance of an offer made. It is hardly conceivable to interpret silence as a promise to undertake a new obligation under international law. Promises will therefore, unlike the other typically enumerated unilateral acts, be restricted to express acts, ie they have to be declared. As already pointed out, acts leading to the international responsibility of a state may still be unilateral acts and if so will remain of interest, which is similarly true for countermeasures. Interpretative declarations were also ruled out by the Special Rapporteur on the basis of them lacking autonomy and might indeed not come within the legal framework of promises, as long as they remain merely interpretative without taking on a new or further obligation. V  PROMISES OF STATES ONLY

As its title already indicates, this study focuses exclusively on declarations made by states and not on those made by any other subject of international law. Thus, in particular, declarations made by international organisations are not within its reach. While this approach mirrors that of the ILC and that of most scholars, who usually differentiate between unilateral acts of states and those of international organisations,211 this is of course not to say that only states are capable of committing themselves through an international declaration. Quite on the contrary, just as international organisations are capable of assuming international obligations through treaties, they can issue unilateral acts which are comparable to those of states. Especially in their external affairs, ie when acting vis-à-vis non-members, similarities are likely to arise.212 Yet, even here, the respec  See p 64.   See, eg, the separate treatment of both subjects in Nguyen, Pellet and Daillier, Droit international public, n 30 above, 359, 367 et seq along with the references provided therein for each topic. 212   In their ‘internal affairs’ unilateral acts are going to be just as frequent but are more likely to be covered by a lex specialis which is to be found in the organisation’s own legal framework. For example, EU Directives and Regulations, just like Security Council Resolutions are unilateral acts, yet they have a legal framework applicable to them which is determined through the organisations’ founding treaties, with the latter allowing for very special unilateral acts to become effective vis-à-vis its members. The resulting variety of unilateral acts of international organisations complicates this topic. For more see, eg Michel Virally, ‘Unilateral Acts of International Organizations’ in M Bedjaoui (ed), International Law: Achievements and Prospects (1991) 241 and Nguyen, Pellet and Daillier, Droit international public, n 30 above, 367 et seq. See also Cedeño, First Report, n 3 above, 8–9, paras 30–38, where, at para 32, he calls attention to the difference between acts of sovereign states inter se as ‘unilateral acts in the context of the relationship of coordination’, on the one hand, and the different scenario where on the basis of a common basic text the ensuing acts are ‘unilateral acts in the context of relationships of association’. 210 211



Promises of States Only 79

tive organisation’s internal legal structure along with its (limited) competences need to be taken into account in order to assess a declaration’s legal value, and might require an adjustment within the legal framework. Also, the historical background is different and each and every rule which has developed between states will have to be probed as to its transferability. Hence, and just as with the law of treaties where two different, yet largely similar, set of rules were developed,213 both actors will be kept apart, with the present focus lying solely on states. As the example of the Vienna Convention shows, a clarification of the rules applicable to this ‘classic’ actor of international law can, however, serve as a blueprint for a legal framework applicable to international organisations subsequently to be drawn up.

213   See the specially drafted Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986. At the time of writing there are 41 parties to this Convention. But as only 29 of them are states, the treaty is not yet in force since its Art 85 stipulates a minimum requirement of 35 states parties. For more, see the UN Treaty Collection at http://treaties.un.org.

2 A History of Promises

A

RTICLES OR MONOGRAPHS dealing with the law of treaties are in the privileged position of being able to address the latter without necessarily having to provide a chapter on the ‘history of treaties’, understood as a closer analysis of past state practice and cases in order to prove their very point of departure, ie that treaties are actually a means by which states may assume a legally binding obligation. The very existence of treaties as a legal institution gives rise to no apparent dispute, even though questions pertaining to it, such as how to hold apart non-binding from binding agreements, have never ceased to provide fertile ground for intellectual debate.1 Yet, treaties undoubtedly have a long tradition in international law and could from the outset largely mirror and thrive on the consensual legal mechanism present in practically every domestic legal system: the contract. Also, at least since the late 1960s, the international lawyer has a treaty on treaties, the Vienna Convention on the Law of Treaties, to which he or she can point and which, even for its non-members, as reflective of customary law,2 provides a rather detailed legal framework for written agreements amongst states.3 When it comes to promises of states, whether written or not, the picture is radically different: Not only are we lacking a consensus on important aspects of the normative framework, as chapter three will show in more detail, but the very existence of promise as a legal institution has been subject to an ongoing debate, with the concept suffering constant attacks from scholars since its appearance on the doctrinal stage.4 Practically 1  See, eg Jan Klabbers, The Concept of Treaty in International Law (The Hague/Boston/ London, 1996). 2   On this aspect, as well as the difficult distinction between codification and progressive development within the Vienna Convention, see, eg Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn (Manchester, 1984) especially 10–21. Of course, even provisions which were progressive at the time, might now have turned into customary law. 3   The Vienna Convention on the Law of Treaties of 1969 entered into force on 26 January 1980, with 111 parties to the Convention at the time of writing, see http://treaties.un.org. 4   See especially R Quadri, ‘Cours général de droit international public’ (1964) (III) 113 Recueil des Cours de l’Académie de Droit International de La Haye 245, 361; Alfred P Rubin, ‘The International Legal Effects of Unilateral Declarations’ (1977) 71 American Journal of International Law 1, for whom the ICJ in the Nuclear Tests cases established a ‘new rule of international law’, see at 28; also Alexandre-Charles Kiss, ‘Les actes unilatéraux dans la practique francais du droit international’ (1961) 2 Revue Générale de Droit International Public 317,



Important Cases and State Practice 81

every example of state practice which has been put forward in order to highlight the acceptance and use of binding unilateral assurances, has found at least one published legal commentator rejecting it as an example that really included both a binding as well as unilateral assurance. In addition, most domestic legal orders do not know of promises as unilateral legal commitments.5 As even the international lawyer has domestic roots, a predominantly ‘bilateral mindset’ has come to prevail amongst the legal profession, which tends, and sometimes by all means tries, to conceptualise any legal commitment in terms of a treaty relationship. Finally, unilateral acts, much less promises, are not mentioned amongst the sources of international law which are to be applied by the International Court of Justice (ICJ) as the principal judicial organ of the United Nations in deciding cases brought before it, even though the Court is to apply and ‘decide in accordance with international law’.6 While this last aspect is treated separately at the beginning of chapter three, all aspects taken together make the following ‘History of Promises’ a necessary ingredient to this study. I  IMPORTANT CASES AND STATE PRACTICE

The history of promises in international law as a binding, though unilateral act seems to begin somewhere between the First and Second World Wars, even though a precise date of birth is hard to pinpoint, as will be seen. Instead, what has taken place resembles more a gradual elaboration of a legal institute which has been shaped primarily not through the practice of states but that of international tribunals. Apparently, neither for Grotius (1583–1645) nor Pufendorf (1632–1694), could a unilateral assurance as such give rise to a binding commitment; an act of acceptance

especially 317–19; and Charles de Visscher, Problèmes d’interprétation judiciaire en droit international public (Paris, 1963) 186–88. 5   See also Hugh Thirlway, ‘Concepts, Principles, Rules and Analogies: International and Municipal Legal Reasoning’ (2002) 294 Recueil des Cours de l’Académie de Droit International de La Haye 267, 340–41; Wilfried Fiedler, ‘Zur Verbindlichkeit einseitiger Versprechen im Völkerrecht’ (1976) 19 German YB International Law 35, 50–51. The German and Italian legal systems are sometimes cited as having a comparable legal mechanism. At least with reference to the former, which the present writer knows in more detail, this assessment is not absolutely accurate. In the German legal system a unilateral promise/assurance will usually have to be made in contractual form in order to be binding, even if the law might construe the latter through assuming a tacit acceptance and declare the usually necessary reception of the acceptance by the offeror as not necessary (German Civil Code, BGB, s 151). Yet, there are one-sided and obliging legal acts, especially the so-called ‘Auslobung’ (BGB, ss 657–661a) which regulates the (very) special case of a publicly made promise to provide a reward to whomever fulfils the conditions laid out in it. 6   See the wording of ICJ Statute, Art 38(1).

82  A History of Promises was necessary.7 This view was confirmed in an arbitral award rendered by Baron Lambermont relating to the Island of Lamu in 1889, in which an oral promise by a Sultan of Zanzibar was not considered to be binding on account of an analysis which held that there had been no ‘concurrence of wills’, ie no agreement, on all essential elements of the matter in question. It was apparently assumed that a promise could only become binding, if it became part of an agreement: Que, pour transformer cette intention en une promesse unilatérale valant convention, l’accord des volontés aurait dû se manifester par la promesse expresse de l’une des parties, jointe a l’acceptation de l’autre, et que cet accord de volontés aurait dû porter sur les éléments essentiels qui constituent l’objet de la convention.8

Similarly, in the (as far as I am aware) first book written on unilateral acts in international law, the monograph of Franz Pfluger published in German in 1936, a thorough and in depth analysis of the subject is presented; promises, however, are not addressed and thus, while not explicitly rejected, thereby implicitly held to be non-existent.9 Later publications have, however, identified a couple of cases which date back before Pfluger’s book’s date of release in 1936 and which at least by some are held to include promises. The following chronological journey through relevant ‘case law’10 will start with these cases and highlight important judicial decisions, as well as some examples of state practice not before tribunals, up to the present time. As mentioned in the introduction, uni7   See Hugo Grotius, The Rights of War and Peace (Translation, Indianapolis, 2005) vol II, ch XI, para XIV: ‘But that a Promise may transfer a Right, the Acceptance of the Person to whom it is made is no less required here, than in the Case of transferring a Property; yet so, that here also a precedent Request shall be judged to subsist, and to have the Force of an Acceptance’. For Pufendorf a promise was also always based upon the condition that the addressee would ‘be pleased to accept it’, as the cause that moved the promisor was ‘in him [ie the addressee] alone, and not in other things as well’, Samuel Pufendorf, Elementorum Jurisprudentiae Universalis Libri Duo (translation, Oxford, 1931) vol 2, Def XII, para 10, 81. 8   Arbiter Baron Lambermont, Arbitration between Germany and the United Kingdom relating to Lamu Island, Decision of 17 August 1889, [1889] Reports of International Arbitral Awards 237, 243. The translation of the relevant decision’s head note as provided in the publication reads as follows: ‘[I]f a unilateral promise is to be considered an agreement, the concurrence of wills must be indicated through the express promise of one of the parties, along with the acceptance of the other party, and the concurrence of wills must relate to essential elements which are the object of the agreement – an oral promise is not sufficient to establish a right to trade preference or priority’. 9   See Franz Pfluger, Die einseitigen Rechtsgeschäfte im Völkerrecht (Zurich, 1936), addressing recognition, protest, notification, waiver and occupation in more detail. 10   There is, of course, no doctrine of stare decisis in international law and the decisions of the ICJ have according to its own Statute’s Art 59 ‘no binding force except between the parties and in respect of that particular case’. The Court has nevertheless made it very clear that ‘it will not depart from its settled jurisprudence unless it finds very particular reasons to do so’, ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Preliminary Objections, Judgment of 18 November 2008, para 53 and also para 76.



Mavrommatis Jerusalem Concessions Case 83

lateral pledges of states to follow a certain line of action are by no means a rare event. It was therefore necessary to make a choice in this chapter as to which declarations were to be analysed more closely. In doing so, up until the ICJ’s rulings on the Nuclear Tests cases, the ‘prominent’ examples, many of which have been addressed by legal scholars, are included, in particular as practically all have been attacked as false examples from one or the other side. From there on, the waters are more uncharted and the chapter, apart from cases that came before the ICJ, will focus on examples of state practice in which a state’s declaration has been considered, by at least one of those involved (ie the declarant or the declaration’s addressee) to be a binding unilateral undertaking, and where preferably in addition a legal opinion of some authority has addressed the statement’s legal value. The reason for this choice is to be found in the purpose of this chapter, which is to highlight how unilateral assurances of states are understood and treated within the international legal community. The reactions of scholars (where existent) are presented and analysed in respect of each of the following examples, of which a brief overview is also provided in Annex I to the book.11 A  Mavrommatis Jerusalem Concessions Case The Mavrommatis Jerusalem Concessions case was decided in 1925 by the Permanent Court of International Justice (PCIJ) and is considered by Eric Suy the first in which a unilaterally binding assurance, ie a promise, has been relied upon by an international court. The following had happened: Greece brought suit before the PCIJ against Great Britain, claiming just and equitable compensation in money in protection of one of its nationals, Mr Mavrommatis. The latter had concluded an agreement with the city of Jerusalem on 14 January 1914 in which he was granted the concession for the public distribution of electric power and electric tramways in Jerusalem, as well as a concession for the construction and exploitation of the works necessary for the supply of drinking water to Jerusalem. However, before Mavrommatis could begin the actual construction work, the First World War broke out. Great Britain subsequently became the Mandatory Power for Palestine under the League of Nations system which also put it in charge of Jerusalem. Despite a letter by Mavrommatis to the new government of Palestine seeking to determine how to proceed with the concessions granted to him before the war, Great Britain concluded a contract with a Mr Rutenberg under which the latter, after having fulfilled some conditions, was to receive a concession for the util­isation of the waters of the rivers Jordan and Yarmouk and their 11

  See p 314.

84  A History of Promises affluents for generating and supplying electric energy. Possible conflicts with previously granted concessions were indeed envisaged by the parties and covered by a clause included in the agreement which opted for an annulment procedure to be initiated upon application by the new concessionaire, Rutenberg: In the event of there being any valid pre-existing concession covering the whole or any part of the present concession, the High Commissioner, if requested in writing by the Company [formed by Mr Rutenberg] so to do, shall take the necessary measures for annulling such concession on payment of fair compensation agreed by the Company or, failing agreement, determined by arbitration.12

After some back and forth with the British authorities, who accepted that Mavrommatis had some rights under the concession granted to him before the war, Mavrommatis claimed compensation for an alleged expropriation. The British Crown Council, however, pointed out that the concession for Rutenberg had not actually been put into operation and that Mavrommatis was free to choose whether he wanted to proceed with the concession he received back in 1914, or have it resolved in exchange for an indemnity ‘to be considered’ for some of the survey and investigation work already done by him; the more than slight catch being that if Mavrommatis should choose to proceed with the contract, the concession’s terms would not be adapted to the new economic situation but stood as they were, including the amount of paper money agreed on before the war. Mavrommatis, anything but amused by this chain of events, agreed that he should be given the right of choice between the concession and an expropriation, but in the event of executing the concession, argued that it should be remunerated at its actual current cost with ‘it being understood that the tariffs were fixed [not in paper money but] in gold piastres’.13 The Greek authorities, to whom Mavrommatis had maintained close contact, finally brought the matter before the PCIJ. The Court in its ruling considered Great Britain to be under an obligation to respect its international obligations in carrying out its mandate in the administration of Palestine and found obligations to arise especially out of the Treaty of Lausanne and a Protocol annexed to it. According to the Protocol, pre-existing concessions were to be maintained. On this basis, the Court addressed the relation between the Mavrommatis’ Jerusalem concessions, on the one hand, and the agreement concluded between Rutenberg and the Crown Agents, on the other. Here, the Court noted that the agreement itself did not annul the concession granted to Mavrommatis but conferred a right on Rutenberg to apply for such an annulment. The Court went on to describe how Rutenberg, in an exchange 12  PCIJ, Mavrommatis Jerusalem Concessions (Greece v Great Britain), Judgment of 26 March 1925, Series A5, 6, 16. 13   Ibid 25.



Certain German Interests in Upper Polish Silesia Case 85

with the British authorities, had made it very clear that he was in fact not going to make use of this right, but was willing to let Mavrommatis execute his concession (the reason being that Rutenberg would otherwise have been obliged under the agreement with the British authorities to compensate Mavrommatis for his loss, which the latter had estimated at £125,000). The Court then cited a declaration made by the British representative, who, besides pledging Great Britain’s will to comply with its obligations under the Lausanne Protocol as determined by the Court, also gave the following assurance: That being so, there can be no question of our acting on any request to expro­ priate M Mavrommatis. If M Rutenberg was so – I do not like to use the term – dishonest, so unreasonable, now as to ask to expropriate him after declaring that he has no such intention, we should not act upon that request.14

The Court continued its judgment after this citation as follows: After this statement, the binding character of which is beyond question, the Court considers that henceforward it is quite impossible that the British or Palestine Governments should consent to comply with a request for the expropriation of M Mavrommatis’ Jerusalem concession. The clause in Article 29 of the Rutenberg concession which gave him the right to demand such expropriation must therefore be regarded as deleted and all that remains of that article is an obligation on the part of M Rutenberg and his successors to respect M Mavrommatis’ concessions.15

The statement made by the British representative was therefore considered binding by the Court, which, however, did not provide any more insight into how this bindingness was brought about or what rules were to govern such a declaration. This is astonishing insofar as the unilateral character of the statement just quoted is very clear. The British representative neither asks for an acceptance from the beneficiary Mavrommatis, nor does he ask the Court for one. Instead, the decision of the British government is presented as a fact to the Court, devoid of any conditionality upon a second manifestation of will: ‘there can be no question of our acting on any request to expropriate M Mavrommatis’. Yet, for the Court, the binding character of this statement was beyond question.16 B  Certain German Interests in Upper Polish Silesia Case Only a year later, in 1926, the PCIJ again had to deal with the legality of expropriation, this time directed against property owned directly by   Ibid 37.   Ibid 37–38, emphasis added. 16   Some authors have, as mentioned, discarded these declarations simply because they were made before an international tribunal. On this aspect see pp 75–77. 14 15

86  A History of Promises various German nationals or by companies under their control. Poland, however, subsequently withdrew several of its notifications of an intention to liquidate certain rural estates, and the Polish representative made it clear that in respect of some of the property originally notified, there was no longer any intention of liquidation. In its judgment, the Court addressed this issue as follows: The representative before the Court of the respondent Party, in addition to the declarations above mentioned regarding the intention of his Government not to expropriate certain parts of the estates in respect of which notice had been given, has made other similar declarations which will be dealt with later; the Court can be in no doubt as to the binding character of all these declarations.17

In the course of the judgment, the Court returned to the declarations made in respect of the individual properties.18 Their precise value does not, however, become entirely clear in these passages, especially as an ‘immunity’ from expropriation seems to follow from a contractual duty already undertaken by Poland (under the Geneva Convention between Poland and Germany concerning Upper Silesia signed on 15 May 1922). Scholars have, therefore, seen room to argue that the declarations were not intended to assume a new binding commitment.19 Whether the declaration in fact merely assured compliance with an already existing obligation has also been questioned in respect of the British declaration in the Mavrommatis Jerusalem Concessions case above.20 There, however, it is harder to make the argument as the Court expressly left it open whether a right remained under the Protocol for Great Britain to expropriate Mavrommatis, even though it did consider the clause included in the contract with Rutenberg to infringe Mavrommatis’ rights under his concession (especially as it allowed a private individual to trigger an expropriation procedure for his own benefit). Be that as it may, even those commentators who emphasise that these declarations comprise a confirmation of an existing duty cannot ignore that the PCIJ has chosen a different approach in both cases by announcing expressis verbis the binding character of these declarations; it has thereby clearly not treated them as pledges to comply with already existing con17  PCIJ, Certain German Interests in Upper Polish Silesia (Germany v Poland), Judgment of 25 May 1926, Series A7, 2, 13, emphasis added. For Klabbers, Concept of Treaty, n 1 above, 168– 69, the PCIJ by referring to ‘all these’ declarations, referred also to declarations made outside the proceedings. If this were the case, the position advocated above (p 75–77), according to which declarations made during judicial proceedings cannot simply be dismissed as ‘special’ and ‘non-unilateral’, would find additional support in this judgment, since the Court treated all statements the same and as equally binding. From reading the judgment, however, it is hard to tell whether the PCIJ is really also alluding to declarations made outside the oral and written proceedings. 18   See PCIJ, German Interests (1926), n 17 above, especially 58, 71–72. 19   See Quadri, ‘Cours général’, n 4 above, 366. 20   Besides Quadri, ibid, see Rubin, ‘Unilateral Declarations’, n 4 above, 3, note 6.



Free Zones Case 87

tractual duties but has instead attributed a binding, ie a legally restraining power to these declarations.21 C  Free Zones Case In its opinion in the Free Zones of Upper Savoy and the District of Gex case, delivered 7 June 1932, the PCIJ again emphasised the bindingness of a declaration made by a state representative in the course of the proceedings. In response to doubts which had been expressed by the French side, whether a declaration made by the Swiss representative accepting certain terms ‘without making any reservation for subsequent ratification’ could really be considered binding ‘from a constitutional point of view’, the Court said that ‘having regard to the circumstances in which this declaration was made, the Court must however regard it as binding on Switzerland’.22 The PCIJ also and expressly decided to place the declaration on record.23 As such, it is tempting to include this incident in the list of cases in which promises have received juridical acceptance. But on closer look, it was not a promise that was relied on here. While a unilateral act, the declaration was both drafted and treated by the parties as an offer which required acceptance from France as its addressee. As the Court described it: In the course of the oral arguments before the Court, the Swiss Agent declared, on behalf of his Government, that if the zones were maintained, the Federal Government would, if France so desired, agree to the terms of goods between the zones and Switzerland being settled by experts, failing agreement with regard to them by the Parties.24

The declaration was therefore understood by the Court to give rise to the following legal situation: If the French Government chooses to avail itself of this offer, it will be able to obtain in favour of the inhabitants of the zones an arrangement for their produce into Switzerland, which will not depend exclusively on the will of the Swiss Government. It is true that, in the course of the recent hearings, the French Agent declared the Swiss proposal to be inacceptable; but it is also true that he regarded it as an 21  According to Alfred Verdross and Bruno Simma, Universelles Völkerrecht: Theorie und Praxis, 3rd edn (Berlin, 1984) 429, the Polish representative who had made the declaration in the German Interests in Upper Polish Silesia n 17 above, considered it binding for Poland. Although both authors are of the opinion that the declarations only repeated an already existing obligation, they concede that the Court apparently considered it to be a unilateral commitment. Quadri, ‘Cours général’, n 4 above, 366, also declares the Court to have ‘improprement’ spoken of a ‘declaration obligatoire’. 22  PCIJ, Free Zones of Upper Savoy and the District of Gex (France v Switzerland), Judgment of 7 June 1932, Series A/B 46, 96, 170. 23   Ibid 172. 24   Ibid 169, emphasis added.

88  A History of Promises offer to conclude a Special Agreement, an offer which, in this form, he had no power to entertain.25

We are therefore in the presence not of a promise but of an offer which will compel Switzerland to do what it offered only ‘if France so desires’ and accepts it. 26 The Free Zones case is not, therefore, of direct ‘precedential’27 value in this context. It does, however, clearly illustrate the need to differentiate between unconditional assurances, on the one hand, and an offer requesting acceptance, on the other. D  Declarations Concerning the Protection of Minorities Moving along and thereby away, at least for now, from declarations made before international tribunals leads us towards those made by various countries, especially Lithuania, Estonia and Albania in the 1920s, as well as Iraq in 1932, vis-à-vis the League of Nations, all addressing the protection of minority rights. They are indeed amongst the first examples cited of states using binding unilateral assurances at the international level.28 But again, and as in practically every case that is to follow, there is considerable disagreement whether the declarations really constitute unilateral commitments. Unlike with other declarations, here, their bindingness is not as such questioned, but their unilateral character is. Instead of being compelling as a unilateral promise, the declarations are considered by some to form part of a bilateral exchange, with the restraining power on the declarant therefore resulting not from the assurance alone, but from a treaty concluded, of which it formed merely a part. The assurance, in other words, is considered to be either an offer that was subsequently accepted by the League, or was itself the acceptance of an offer the League had made. Polled on the unilateral-bilateral question, legal commentators seem to split into two rather equally sized groups, with some abstentions: For Balladore-Pallieri, who was amongst the first to attribute binding force to unilateral promises, the declarations made are indeed examples of binding promises.29 De Nova also considers at least some of them as   Ibid 170.   For Eric Suy, Les Actes Juridiques Unilatéraux en Droit International Public (Paris, 1962) 126, note 51, the offer is one to enter into negotiations. See, however, Klabbers, Concept of Treaty, n 1 above, 168–69, for whom such an interpretation is ‘unduly’ restrictive; the declaration went beyond an offer to enter negotiations but instead ‘contained concessions on the part of Switzerland’. 27   On the (non-technically speaking) ‘precedential value’ of PCIJ and ICJ cases, see the brief comment at n 10 above. 28  There were similar declarations by other countries, amongst them Finland, Latvia, Greece and Bulgaria. The latter three are briefly addressed by Suy, Actes Unilatéraux, n 26 above, 118–19. 29   Giorgio Balladore Pallieri, Diritto Internazionale Pubblico, 7th edn (Milano, 1956) 316. 25 26



Declarations Concerning the Protection of Minorities 89

‘proof’ of the existence of promises in international law.30 The assessment provided by Degan is somewhat more careful: the situation was not clear-cut but rather ambiguous and there was room to view the commitments to have been established either through a treaty or a unilateral promise.31 Suy, on the other hand, after examining the history of each of the above-mentioned declarations made, draws the same conclusion as Quadri did a few years before him, namely, that none of them are unilateral commitments.32 Rousseau is a little more cautious and classifies these declarations as leading to ‘quasi-contractual’ engagements.33 Writing 10 years later than Suy, Jacqué, dissecting Suy’s reasoning, dis­ agrees completely and brings us back full circle to the original assessment of Balladore-Pallieri, ie that the declarations made were binding as unilateral assurances.34 The factual backdrop for this disagreement is, in a nutshell, the following: after the First World War, minimum guarantees for the protection of minorities, the adherence to which were to be monitored by the League of Nations, had been set up through several treaties between the Allied Powers, on the one hand, and newly formed as well as defeated states in Eastern Europe, on the other. Albania, Estonia, Lithuania (and also Iraq) were amongst the countries not covered by any such treaty but the League considered similar guarantees necessary and on 15 December 1920 adopted the following recommendation: In the event of Albania, the Baltic and Caucasian States being admitted into the League, the Assembly requests that they should take necessary measures to enforce the principles of the Minority Treaties, and that they should arrange with the Council the details required to carry this object into effect.35

The commitments were to be brought about through declarations which, in order to ensure that the standards considered necessary by the League of Nations were to be achieved, were actually drafted by the League itself. They were then forwarded to the respective country which was asked to sign and ‘formally communicate’ them (back) to the League of Nations. The League’s Council subsequently took note of the particular   Rodolfo De Nova, ‘Die Neutralisation Österreichs’ (1958) 54 Die Friedenswarte 298, 303.  Vladimir-Djuro Degan, ‘Unilateral Act as a Source of Particular International Law’ (1994) 5 Finnish YB International Law 149, 199. 32  Suy, Actes Unilatéraux, n 26 above, 114–21; Quadri, ‘Cours général’, n 4 above, 128; similarly Visscher, Problèmes d’interprétation, n 4 above, 188. 33   Charles Rousseau, Droit international public, vol I, Introduction et Sources (Paris, 1970) 423. 34   Jean-Paul Jacqué, Eléments pour une théorie de l’acte juridique en droit international public (Paris, 1972) 251–53, analysing the declarations made by Lithuania, Estonia, Iraq and Albania. 35   See PCIJ, Minority Schools in Albania, Advisory Opinion of 6 April 1935, Series A/B, No 64, 1935, 4, 7. 30 31

90  A History of Promises declaration through a specific Resolution. Finally, the declarations were to be ratified by the respective countries and deposited with the League.36 This ‘interaction’ between the League and the country in question has led some commentators to assume a treaty relationship as having been established between the two. As mentioned, Suy, who offers a quite detailed analysis, draws the conclusion that none of the declarations could be classified as a promise in international law. In fact, the declaration issued by Lithuania, which the assessment of the other declarations is said to confirm, was the ‘acceptance of an offer, a proposition emanating from the League of Nations’, the offer being the above-cited recommendation made by the Council.37 The fact that various state representatives could be quoted as having ‘accepted’ the text drafted by the League, or that the representative of Estonia expressed his satisfaction ‘at the agreement which has been reached between the Council and the Estonian Government regarding the question of minorities in Estonia’38 are said to prove this point. Yet, as Jacqué has remarked,39 the citations relied on by Suy do not warrant this assessment. The representatives merely indicated that they accepted the text worked out by the League of Nations, but in order to proclaim it as their own commitment. Indeed, the League in the abovementioned Resolution does not offer anything when it recommends the countries to adopt a certain declaration. Such a recommendation or request could only be an ‘offer’ if the League was offering to undertake an obligation in the case of an acceptance by the countries addressed, which, however, it does not do. The bilateral relationship can hence only be construed in the ‘opposite’ way: when Lithuania, Estonia and the other countries are asked to apply a certain scheme of rights to their minorities, they are in fact asked to make, and subsequently alleged to have made, an offer for the protection of minority rights vis-à-vis the League. Understood in this way, the League’s subsequently adopted Resolution taking note of the declaration would function as the offer’s acceptance.40 While this interpre36   The history of the Albanian declaration signed 2 October 1921, ratified by the Albanian government on 17 February 1922 and deposited at Geneva on the following 22 March, is the most easily traceable as it is depicted in the ICJ Advisory Opinion, see ibid 9. For the declaration of Lithuania, dating 12 May 1922, see League of Nations, Minorities in Lithuania, (1923) 4 League of Nations Official Journal 932 and Minéitciro Adatci, ‘Petition from Thirty-Four Persons of Russian Origin Living in Lithuania Regarding the Confiscation of their Lands under the Lithuanian Agrarian Reform Law of 15 February 1922, Report to the League of Nations Council’ (1930) 11 League of Nations Official Journal 179; for that of Estonia made on 17 September 1923, see League of Nations, Minorities in Estonia, 4 League of Nations Official Journal 1310–12. For the declaration made by Iraq see League of Nations, Mandates Proposal and Annex, 1212–16, 1342–50 and also Suy, Actes Unilatéraux, n 26 above, 119. 37  Suy, Actes Unilatéraux, n 26 above, 117. 38   League of Nations, Minorities in Estonia, 4 League of Nations Official Journal 1311. 39  Jacqué, Eléments, n 34 above, 252. 40   The League of Nations’ international personality is thereby assumed; for more on this question see Bardo Faßbender, ‘Die Völkerrechtssubjektivität internationaler Organisationen’



Declarations Concerning the Protection of Minorities 91

tation may stress that the declarations were from the outset designed to be addressed to the League on its own request, this understanding of the events cannot be supported by the citations relied upon by Suy (as the states were making the offer and not ‘accepting’ it), and there is a good argument to be made that the declarations were in and of themselves solemn commitments which the League only recognised as such, thereby emphasising that they were being relied upon as legal commitments. Besides the fact that the above-described procedure seems rather odd for the conclusion of a treaty, the interpretation of a unilateral act would also be more in line with what the Estonian (and as will be seen also the Lithuanian) representative expressly stated before the League: it must be clearly understood that this declaration forms, together with the resolution submitted to the Council, an indivisible whole which must not, however, be regarded as constituting a Minorities Treaty.41

Interestingly, two of these declarations, the Lithuanian as well as the Albanian one, became subject of separate and heightened legal scrutiny after their proclamation, when both countries were accused of having infringed the guarantees included therein. The Lithuanian declaration and the alleged breaches thereof formed the basis for a report by Mr Adatci,42 appointed as a Special Rapporteur by the League; the declaration of Albania was forwarded to the PCIJ by the Council of the League asking for an advisory opinion on whether Albania had breached its international obligations when it announced the closure of all private schools, including those used by the country’s Greek minority.43 To begin with the Court, it had no doubt that the declaration made was binding upon Albania, but despite the doctrinal tug-of-war that was to ensue in the years to come amongst legal doctrine trying to explain the precise nature of the declaration in question, the Court did not consider it necessary to discuss, let alone explain, how the declaration made could have this effect. In its opinion, the Court, never speaks of a treaty having been concluded but strictly confines itself to the use of the word ‘declaration’ or ‘act’: The declaration of 2 October 1921 belongs to the numerous category of inter­ national acts designed for the protection of minorities.44

The legal construction for the in-any-event binding commitment thus remains unclear, since a treaty may be termed a bilateral act, a promise a unilateral act. Yet, for Suy, the following wording used by the Court – ‘the (1986) 37 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht 17, 22–25, English summary at 48–49. 41   League of Nations, Minorities in Estonia, 4 League of Nations Official Journal 1311. 42   Adatci, ‘Report’, n 36 above, 179–85. 43  PCIJ, Minority Schools in Albania (1935), n 35 above, 4–23. 44   Ibid 16.

92  A History of Promises fact that what the Council of the League of Nations asked Albania to accept, and what Albania did accept, was a regime of minority protection’ (emphasis added) – showed that the underlying legal construction was that of a treaty. But similar to what has been said above, the fact that the Council asked Albania to accept a regime of minority protection does not mean it was thereby making an offer – surely it was not offering ‘the regime’ (an obligation for Albania!) to Albania even though it asked the latter to accept it. At most, it could be assumed that it was offering access to the League itself in return for the declaration, despite the fact that Albania was admitted on 17 December 1920 and thereby roughly a year before it made the requested declaration. In any event, the guarantee seems more of a requirement set out by the Council than the quid pro quo for an accession.45 What the Council was really doing was asking Albania to undertake an obligation, but whether the latter did so through an offer (the declaration which was proclaimed as its own undertaking) then accepted by the Council (through a Resolution) or by using a unilateral assurance (the declaration alone) is not clear.46 Just as the Court refrained from deciding how the binding nature of the declaration by Albania was brought about, so too did Adatci in his report submitted to the League on 15 January 1930 and addressing the Lithuanian declaration in response to a petition made by members of the Russian minority in Lithuania, who claimed that their rights had been infringed upon. Unlike the Court, Adatci, however, saw himself pressed to the point of addressing the problem discussed here, since the Lithuanian representative, Mr Voldemaras, (much like the Estonian representative had done before him) claimed that the engagements: did not constitute an international treaty, but formed a declaration which had been read before the Council and of which the Council had taken note.47 45   The League in its initial resolution did not stipulate that it was going to admit the countries if they accepted the minority declarations, ie that it was obliging itself to admit the countries if they made the declaration. The wording of the resolution instead uses the opposite conditionality, ie if the countries are admitted, the Council requests them to adopt a minority declaration – an understandable approach, as only in the latter scenario will the Council as the organ of an international organisation be addressing one of its members. 46   The dissenting opinion turns out to be similarly unclear on this point, as the passage quoted by Suy, Actes Unilatéraux, n 26 above, 121, appears to be a mistranslation: While in the French translation, the dissenters Sir Cecil Hurst, the Count of Rostworowski and M Negulesco regretted the absence of a preamble to the declaration in the following words: ‘Cette source ou l’on pourrait trouver un guide virtuel pour interpréter le traité, fait donc défaut’, they did in fact only remark: ‘That source of potential guidance in the interpretation of the instrument is therefore lacking’, PCIJ, Minority Schools in Albania (1935), n 35 above, Dissenting Opintion, 31, emphasis added. While in another passage the dissenters got closer than the majority to construing the declaration as a treaty (see ibid 28), they never made their position clear, and repeatedly spoke of the declaration as belonging to the series of ‘instruments’ (ibid especially 27, here the French version speaks of ‘série des actes’), and not the series of treaties which were installed for the protection of minorities, and therefore did not provide a clear answer to the question raised here. 47   Adatci, ‘Report’, n 36 above, 183.



Legal Status of Eastern Greenland Case 93

Apparently, and significantly, for Adatci, the matter was of minor import­ ance: The last point raised by Mr Voldemaras with regard to procedure refers to the unilateral character of the engagements entered into by Lithuania with regard to the protection of minorities . . . Without considering, at this moment, how far the minority engagements entered into by Lithuania were unilateral or bilateral, it seems to me incontestable that they constitute international obligations for Lithuania.48

Adatci in the following emphasised that the declaration expressly spoke of the guarantees as constituting obligations of international interest, that were to be placed under the guarantee of the League, a commitment which was again expressly renewed in a letter which informed the League that a ratification by the Lithuanian Parliament of the declaration was not necessary.49 In other words, for Adatci at the time (1930), the declarations, no matter whether unilateral or bilateral (that is to say ‘even if’ unilateral), were binding upon Lithuania, as she had expressly proclaimed her will to assume an international obligation. The rather special formal procedure intentionally followed in these cases notwithstanding, it is this assessment, together with the Court’s silence on the unilateral or bilateral (but in-any-event binding) declaration, along with the above cited positions of Estonia and Lithuania, which remains particularly noteworthy.50 E  Legal Status of Eastern Greenland Case The well known Legal Status of Eastern Greenland51 case brought by Denmark against Norway before the PCIJ and decided by the Court in 1933 (with Adatci now serving as judge and president of the PCIJ), features a declaration which has received the attention of a vast number of international legal scholars, the so-called ‘Ihlen declaration’. Named after its declarant, Mr Ihlen, who served as the Norwegian Minister for Foreign Affairs at the time, it was an oral assurance directed to the Danish Minister at Christiana and made on 22 July 1919, ‘that the Norwegian Government would not make any difficulties in the settlement of this question’. The question in the settlement of which Norway gave assurance not to make any difficulties was Denmark’s intention to ‘extend its political and economic interests to the whole of Greenland’. When Norway, roughly 10 years later, published a proclamation in which it declared that it had proceeded to occupy certain territories in Eastern Greenland, Denmark   Ibid 183.  Ibid183. 50   See in this respect also Gian Carlo Venturini, ‘Attitudes et actes unilatéraux des états’ (1964) (II) 112 Recueil des Cours de l’Académie de Droit International de La Haye 363, 399. 51  PCIJ, Eastern Greenland (Denmark v Norway), Judgment of 5 April 1933, Series A/B 53, 22. 48 49

94  A History of Promises brought a claim before the PCIJ (on 12 July 1931) as it considered these territories to be subject to its own sovereignty. The judgment rendered by the Court provided a lengthy description of Greenland’s history reaching back to its discovery in 900 AD and drawing the conclusion that Denmark indeed had had sovereignty over all of Greenland at the time the Norwegian proclamation had been made.52 This historical support, however, does not seem to have sufficed for the majority, as they went on to bolster their opinion by analysing various undertakings Norway had allegedly made and which had been advanced by Denmark as additional support of its claim.53 In doing so, the Court began by analysing various ‘bilateral and multilateral agreements, to which both Denmark and Norway were contracting Parties’54 and which it considered as proof of a Norwegian recognition of Danish sovereignty over the whole of Greenland. ‘In addition to the engagements dealt with above’ the Court found that it had also to consider the ‘Ihlen declaration’. The declaration itself, as well as the request which had prompted it, had both been recorded in a minute prepared and initialled by Ihlen himself, which read as follows: I.  The Danish Minister informed me today that his Government has heard from Paris that the question of Spitzbergen will be examined by a Commission of four members (American, British, French, Italian). If the Danish Government is questioned by this Commission, it is prepared to reply that Denmark has no interests in Spitzbergen, and that it has no reason to oppose the wishes of Norway in regard to the settlement in question. Furthermore, the Danish Minister made the following statement: The Danish Government has for some years been anxious to obtain the recognition of all the interested Powers of Denmark’s sovereignty over the whole of Greenland, and it proposes to place this question before the above-mentioned Committee at the same time. During the negotiations with the U.S.A. over the cession of the Danish West Indies, the Danish Government raised this question in so far as concerns recognition by the Government of the U.S.A., and it succeeded in inducing the latter to agree that, concurrently with the conclusion of a convention regarding the cession of the said islands, it would make a declaration to the effect that the Government of the U.S.A. would not object to the Danish Government extending their political and economic interests to the whole of Greenland.

  See the Court’s conclusion, ibid 64.  The majority was, of course, aware that in his dissent, Judge Anzilotti attacked the majority’s reliance on a historic claim instead of it requesting proof of effective possession, which Denmark at the time did not seem to have had over the whole of Greenland and especially not over the territories in question. As a result, the case, in Anzilotti’s opinion, was to be decided on the basis of the undertakings made by the parties in respect of the territories in Eastern Greenland, see PCIJ, Eastern Greenland (1933), n 51 above, Dissenting Opinion of Judge Anzilotti, 76. 54  PCIJ, Eastern Greenland (1933), n 51 above, Judgment, 68. 52 53



Legal Status of Eastern Greenland Case 95 The Danish Government is confident (he added) that the Norwegian Government will not make any difficulties in the settlement of this question. I replied that the question would be examined.

14/7-19 Ih.

II. To-day I informed the Danish Minister that the Norwegian Government would not make any difficulties in the settlement of this question.

22/7-19 Ih.55

Denmark had argued that the declaration (‘I informed the Danish Minister that the Norwegian Government would not make any difficulties in the settlement of this question’) constituted a binding act for Norway. Speaking for Denmark, Mr Steglich-Peterson in the pleadings before the Court expressly labelled the Ihlen declaration a unilateral act, which was binding upon Norway; yet not as a special ‘new’ form of a unilateral promise but because it was said to have expressed the Norwegian recognition of Danish sovereignty over the whole of Greenland.56 Charles de Visscher, he too speaking for Denmark, and pleading a few months later before the Court, also stressed that the declaration had in his view not given rise to a treaty. The Norwegian allegations that oral treaties, if they existed, were only ‘curiosités historiques’ had to be considered besides the point, as: Il ne s’agit pas ici d’un traité, il s’agit d’un engagement pris pour compte du Gouvernement norvégien, d’une promesse faite pour compte de ce Gouvernement. Le Gouvernement danois a pris acte de la promesse faite par M. Ihlen au ministre de Danemark, M. Krag. Il a fait plus, il a agi en conséquence, et cela immédiatement, en donnant son appui diplomatique à la Norvège dans la question du Spitzberg. La pratique internationale de tous les jours nous offre des exemples constants de promesses de ce genre, d’engagements revêtant un caractère obligatoire, sans pour cela assumer la forme d’un traité.57   Ibid 69–70.   See PCIJ, Eastern Greenland (1933), n 51 above, Judgment, 69 and especially the statement by Steglich-Peterson made before the Court as the Danish representative on 25 November 1932, Publications of the PCIJ, Series C 66/02, 2736, especially 2744–46: ‘The Danish Government hold the view that the declaration given on behalf of the Norwegian Government through Norway’s lawful international representative, the Foreign Minister, M Ihlen, constituted the recognition of the sovereignty of Denmark over the whole of Greenland which according to international law, as it has always hitherto been accepted, is binding on the Norwegian State’. Refuting the allegations that a verbal declaration as such cannot be binding, the Danish representative said: ‘Almost all the quotations upon which this Norwegian passage is based refer, as the Danish reply has shown, to treaties and not at all to unilateral declarations like the one under discussion’, ibid 2745–46, emphasis added. 57   See the reply by De Visscher of 20 January 1933 before the PCIJ, Publications of the PCIJ, Series C 67, 3454 (my translation: ‘This here, is not a treaty, it is an engagement undertaken on behalf of the Norwegian government, a promise made on behalf of that Government. The Danish Government took note of the promise made by Mr Ihlen to the Danish minister, Mr Krag. It has done more, it has acted upon it, and it has done so immediately, in giving its diplomatic approval to Norway in the Spitzbergen question. Daily international practice 55 56

96  A History of Promises According to de Visscher the declaration therefore did not give rise to a treaty but was a promise of a kind for which international practice was said to offer numerous examples. De Visscher tried to overcome the precedent set by the arbitration award rendered by Baron Lambermont (see text to note 8 above) by focusing on the precise wording used by the arbitrator, as the latter did not openly speak of a treaty. He hence continued his pleadings as follows: Il ne s’agit pas davantage ici d’une déclaration unilatérale non acceptée ou de simples intentions exprimées, et la citation qui a été faite à ce sujet d’un extrait du baron Lambermont est sans pertinence. Il s’agit bien ici d’un cas où, pour reprendre la formule du baron Lambermont ‘l’accord des volontés s’est manifesté par la promesse expresse de l’une des Parties jointe à l’acceptation de l’autre’.58 

De Visscher hence stressed that the promise had been accepted by Denmark, it was not a unilateral act ‘non-accepté’. While true, Baron Lambermont was quite obviously referring to a treaty when he chose his words and spoke of an ‘accord des volontés’ in which a promise had to have been accepted – an interpretation which De Visscher in his pleading had, as cited, just rejected for the Ihlen declaration in refuting the Norwegian attacks on the existence of oral treaties. At this point, however, it is less important to consider whether or not De Visscher’s pleading was compelling when he argued that his interpretation of the Ihlen declaration as being binding upon Norway, although it did not give rise to a treaty, was compatible with the position assumed by Baron Lambermont. What is instead to be kept in mind is that the nature of the declaration and how it had become binding upon Norway were two questions which had been expressly raised and addressed as such in some detail before the Court. Norway responded by stressing that the declaration could not be binding upon it, as it was said to have been non-official and only of a pro­ visional nature. It claimed that it in no way constituted a recognition of an existing situation but was only a positive response to a notification of a Danish future project in Greenland that would be dealt with at the conference.59 The Court, faced with these assertions, first in clear words refuted the Danish claim that the declaration constituted a recognition of an existing Danish sovereignty attributable to Norway,60 by emphasising provides us with constant examples of this kind of promises, undertakings having a binding character without therefore having to assume the form of a treaty). 58   Ibid (my translation: ‘This here is no longer a non-accepted unilateral declaration or simple expression of intent, and the citation of a passage by Baron Lambermont which has in this context been provided is without pertinence. This is clearly a case where, to use the words of Baron Lambermont, “the concurrence of wills is manifested by an express promise of one of the parties met with the acceptance of the other” ’). 59   See the pleadings of Gidel before the court on 12 December 1932, ibid 3193 et seq. 60   See PCIJ, Eastern Greenland (1933), n 51 above, Judgment, 69, para 3, where the Court is absolutely clear in this respect: ‘The declaration by M Ihlen has been relied on by Counsel



Legal Status of Eastern Greenland Case 97

that it was couched in future terms, ie that Norway ‘would not make (ne fera pas)61 any difficulties in the settlement of this question’. The Court went on to consider: whether the Ihlen declaration – even if not constituting a definitive recognition of Danish sovereignty – did not constitute an engagement obliging Norway to refrain from occupying any part of Greenland.62

For the PCIJ, the relevant Danish documents, which had preceded the Danish Minister’s démarche, had made it clear that the question of Norway’s interests in Spitzbergen (which Denmark would not oppose) and the Danish interests in Greenland (which it wanted Norway not to interfere with): were regarded in Denmark as interdependent, and this interdependence appears to be reflected also in M Ihlen’s minute of the interview. Even if this interdependence – which, in view of the affirmative reply of the Norwegian Government, in whose name the Minister for Foreign Affairs was speaking, would have created a bilateral engagement – is not held to have been established, it could hardly be denied that what Denmark was asking of Norway (‘not to make any difficulties in the settlement of the [Greenland] question’) was equivalent to what she was indicating her readiness to concede in the Spitzbergen question (to refrain from opposing ‘the wishes of Norway in regard to the settlement of this question’). The declaration which the Minister for Foreign Affairs gave on July 22, 1919, on behalf of the Norwegian Government, was definitely affirmative: ‘I told the Danish Minister today that the Norwegian Government would not make any difficulty in the settlement of this question’. The Court considers it beyond all dispute that a reply of this nature given by the Minister of Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a Foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs.63

The reply given by Mr Ihlen was therefore considered binding upon Norway.64 The problem of this passage in the present context is that it again leaves room for ambiguities and does not provide a clear legal explanation or rationale for the bindingness of the declaration made, instead it merely reiterates what has happened and then proclaims its for Denmark as a recognition of an existing Danish sovereignty in Greenland. The Court is unable to accept this point of view. A careful examination . . . shows that M Ihlen cannot have meant to be giving then and there a definitive recognition of Danish sovereignty over Greenland, and shows also that he cannot have been understood by the Danish Government at the time as having done so’. 61   This is the French wording, which the Court refers to as having been submitted by the Norwegian government and which was not disputed by Demark, see ibid 69. 62   Ibid 69, para 3. 63   Ibid 70–71. 64  The Eastern Greenland case has also been of importance for the question of how far a Foreign Minister can bind his or her own country on the international plane irrespective of national constitutional restraints, a question which is left aside here.

98  A History of Promises legal conclusion as ‘beyond all dispute’. Yet, a dispute surely existed and a perusal of literature on the topic shows that it continues to exist. Before turning to the judgment’s perception by legal scholars, it is worth taking a closer look at what the Court has actually said (and what not) in the paragraph just cited. Returning to the cited passage and breaking it into smaller pieces, the Court found the following: in addressing the question whether an ‘interdependence’ had been established (the Court already avoids a clear statement and omits speaking of a quid pro quo) the PCIJ does not reach a conclusion. The answer it gives is merely that if it had existed, it would have created a bilateral engagement. But what if it had not? Here it gets interesting. The Court says that even if not, ‘it could hardly be denied’ that what Denmark was asking for ‘was equivalent’ to what she was ready to do. This is an accurate description of fact but what does it mean in legal terms? That an interdependence if not established, still clearly existed? Yet, if something clearly exists, it is quite clearly established. Perhaps for the Court, Denmark’s concession in a notdirectly-dependent yet related manner merely underlined the importance of the declaration at hand, thereby discarding Norway’s interpretation of it as being devoid of any legal meaning. But this is only speculation. The pivotal sentence, however, is the following: The Court considers it beyond all dispute that a reply of this nature given by the Minister of Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a Foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs.

As the Court deduced the bindingness of the declaration merely by rephrasing the facts (we have the following elements: (1) a response, (2) ‘of this nature’, (3) by a Minister of Foreign Affairs, (4) on behalf of his government, (5) to a request by the diplomatic representative of a Foreign Power, (6) in regard to a question falling within his province) but provided little or no hints as to the legal norm under which it was subsuming this real life scenario (the Court neither used the words ‘unilateral act’ or ‘assurance’, nor did it speak of a treaty or an agreement in this passage), it is hardly surprising that the assessment of the Court’s judgment is anything but unanimous in this respect. The lacunae in the Court’s assessment are especially remarkable and apparent in light of Judge Anzilotti’s dissent which has left no room for doubt how he conceived the legal construction to be. For him, the Ihlen declaration together with the request formed an oral agreement which was binding upon Norway, even though the questions of Spitzbergen and Greenland in Anzilotti’s opinion did not function as a quid pro quo for each other.65 The Court, however, did not 65   See PCIJ, Eastern Greenland (1933), n 51 above, Dissenting Opinion of Judge Anzilotti, especially 88–91.



Legal Status of Eastern Greenland Case 99

use the word ‘agreement’ but repeatedly talked of an ‘undertaking’ and made ample use of the word ‘promise’, for example: The Court is unable to read into the words of the Ihlen declaration ‘in the settlement of this question’ [ie the Greenland question] a condition which would render the promise to refrain from making any difficulties inoperative should a settlement not be reached. The promise was unconditional and definitive.66

Since these ambiguities exist within the ruling, the Eastern Greenland case has been interpreted very differently. For some commentators it is an important, if not even the central, case in the PCIJ’s jurisprudence on the binding force of promises in international law. The editorial comment written by James Garner in the judgment’s immediate aftermath in the American Journal of International Law in 1933, bearing the telling title ‘The International Binding Force of Unilateral Oral Declarations’ positions itself in the doctrinal debate that it helped to kindle with the following words: In the Eastern Greenland case the question involved was not whether an oral ‘treaty’ between members of the League was a valid one, but whether a unilateral oral ‘declaration’ was binding on the party whose minister made it.67

And, that: The conclusion which may be drawn from this decision is, first, that a unilateral oral declaration in the nature of a promise, the facts of which are admitted by the party making it, is internationally binding upon the latter party.68

Garner is hence sometimes referred to as being (amongst) the first international scholar(s) to have identified the PCIJ’s reliance on a promise as creating binding obligations under international law.69 In a similar vein, Verdross in his third edition of Völkerrecht, published in 1955, in his section on unilateral acts, cites the Eastern Greenland case as proof of the existence of binding promises in international law.70 Jacqué also discusses the judgment and its ambiguities and draws the conclusion that it was really more the fear present in a large part of legal doctrine that a promise’s binding force may be uncertain which led some to construe a contractual bond in the Eastern Greenland case; the Ihlen declaration really seemed to be a unilateral promise.71 According to Degan, the ‘assignment of 66  PCIJ, Eastern Greenland (1933), n 51 above, Judgment, 73, emphasis added, see also ibid 72–73: ‘notwithstanding the undertaking of 22 July 1919, by which she promised to refrain from making difficulties’. 67  James W Garner, ‘The International Binding Force of Unilateral Oral Declarations’ (1933) 27 American J International Law 493, 494–95. 68   Ibid 496. 69   See, eg Suy, Actes Unilatéraux, n 26 above, 109; Rousseau, Droit international public, vol I, n 33 above, 423, para 341. 70   Alfred Verdross, Völkerrecht, 3rd edn (Vienna, 1955) 133.  71  Jacqué, Eléments, n 34 above, 255: ‘La promesse du Ministre Ihlen semble bien être une promesse unilatérale’.

100  A History of Promises [a] consensual character to the Ihlen Declaration seems to be a pure fiction serving no useful purpose’.72 For Guggenheim, on the other hand, the declaration is a treaty,73 and a number of commentators agree,74 often emphasising the fact that the declaration was termed ‘a response to a request’.75 Unlike most, Suy, who is amongst the ‘treaty group’ in this case, is, however, again more precise in elaborating how this contractual nature is to be construed.76 Following Anzilotti, he begins by highlighting that there was no quid pro quo relationship between the Spitzbergen and the Eastern Greenland questions: the Danish government did not oblige itself to do anything, says Suy. For him, the response given by Ihlen was therefore ‘the acceptance of a proposition’, that is ‘the acceptance of an offer’.77 Yet, this understanding of the matter would create a clear contradiction. If there was no quid pro quo and Denmark did not oblige itself to anything, it cannot be deemed to have made an offer: Denmark certainly did not offer to Norway that Norway (!) undertakes to make no difficulties in the matter in the future. It can only be considered to have asked Norway to assure what Denmark was trying to achieve and thereby to have asked Norway to offer not to make any difficulties in the question, an offer which it was from the outset willing to, and after Minister Ihlen had made it, in this understanding subsequently did (tacitly)78 accept. The Ihlen declaration, or more precisely the PCIJ’s judgment and its dealing with the declaration, are therefor not only a primary example of the gradual elaboration of the doctrine of promises, which the Court undoubtedly helped to trigger, but also of the possibly difficult question whether a declaration constitutes an unconditional promise or an offer necessitating an acceptance.79 As seen, legal doctrine is split over the matter in the case at hand and the Court has left room for doubts as to how it considered the legal obligation to have been brought about. The Ihlen declaration thereby helped to elevate an until then largely undiscussed question into full daylight, namely, what legal consequences an assurance, if found to be unilateral, might have, even though this question, as this chapter has already shown, was not entirely new to the Court. To recapitulate: unilateral declarations of state representatives made before the PCIJ had been considered as binding in the Mavrommatis   Degan, ‘Unilateral Act’, n 31 above, 197.   See Paul Guggenheim, Traité de droit international public, 2nd edn (1967) vol 1, 138, 276. 74   See especially Suy, Actes Unilatéraux, n 26 above, 121–24; also Suzanne Bastid, Les traités dans la vie internationale (Paris, 1985) 351. 75   See, eg Suy, Actes Unilatéraux, n 26 above, 124; also Verdross and Simma, Universelles Völkerrecht, n 21 above, 429, s 669. 76   See Suy, Actes Unilatéraux, n 26 above, 124 and, agreeing with Suy, Quadri, ‘Cours général’, n 4 above, 365. 77  Suy, Actes Unilatéraux, n 26 above, 122. 78   Already for Grotius, Of War and Peace, n 7 above, vol II, ch XI, 720, para XIV, ‘a precedent Request shall be judged to subsist, and to have the Force of an Acceptance’. 79   On this question, see p 228. 72 73



Assurances Leading up to the Second World War 101

Jerusalem Concessions case, just as they had been in the Certain German Interests in Upper Polish Silesia case. The (possibly) unilateral nature of the minorities declarations was brushed over when the reason for such an ‘international instrument’ to be binding was not addressed in the Advisory Opinion on the Albanian minorities schools. Adatci, who later became the acting president of the PCIJ in the Eastern Greenland case, when confronted with the assertion that the Lithuanian declaration was unilateral had, on the other hand, expressly remarked that in his view the engagements assumed thereby were international obligations, no matter whether the declaration was a unilateral act or formed part of an inter­ national treaty.80 The Court now, much as before, avoided an answer on the question by leaving the evidently unclear classification of the legal relationship open to doubt and by instead choosing to assume the bindingness of the declaration to be ‘beyond all dispute’. It did so after having discussed ‘bilateral and multilateral agreements’ (in which the Ihlen declaration was not included!) while refraining from utilising the words ‘agreement’, ‘treaty’ or ‘quid pro quo’, although these aspects were problematic and had been debated before the Court, as well as explicitly addressed in Anzilotti’s dissent. Not surprisingly, the judgment has thereby fuelled the debate on promises, since by choosing the above-depicted approach of assuming the bindingness to be ‘beyond all dispute’, without clearly construing the relationship in contractual terms, the Court, if not held to have actually considered a unilateral assurance as binding, comes close to implicitly acknowledging what Adatci had already expressly declared: that the declaration, irrespective of whether it was to be characterised as unilateral or formed part of a bilateral treaty, was internationally binding for its author. At least with hindsight and in view of the cases that were to come, it is fair to say – the plot thickens. F  Assurances Leading up to the Second World War The late 1930s were witness to a number of assurances which immediately predated the Second World War. France and Britain, for example, assured their military assistance to Poland in case of an attack on 31 March 1939, and so did Britain to Greece and Romania on 13 April 1939. But not only the (about to be) Allies made use of assurances, so did the Nazi regime in an attempt to camouflage its plans; assurances all of which were made only to be broken. When the war was over, the Charter of the International Military Tribunal (IMT), which formed an integral part of the London Agreement of 8 August 1945 between the United States, 80

  See the text to n 48 above.

102  A History of Promises the Soviet Union, Great Britain and France, listed three crimes as within the jurisdiction of the IMT: (a) crimes against peace; (b) war crimes; and (c) crimes against humanity. ‘Crimes against peace’ were defined as follows: (a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;81

The indictment against ‘Hermann Goering et al’ in its Appendix C lists ‘Charges and Particulars of Violations of International Treaties, Agreements, and Assurances Caused by the Defendants in the Course of Planning, Preparing, and Initiating the Wars’ and includes seven charges of violations of assurances, of which the first two (here cited as an example of all seven) read as follows: XVI CHARGE: Violation of German Assurance given on 21 May 1935 that the Inviolability and Integrity of the Federal State of Austria would be recognized. PARTICULARS: In that Germany did, on or about 11 March 1938, at various points and places along the German-Austria frontier, with a military force and in violation of its solemn declaration and assurance, invade and annex to Germany the territory of the Federal State of Austria. ... XVIII CHARGE: Violation of German Assurances given on 30 January 1937, 28 April 1939, 26 August 1939, and 6 October 1939 to respect the neutrality and territorial inviolability of the Netherlands. PARTICULARS: In that Germany, without warning, and without recourse to peaceful means of settling any considered differences did, on or about 10 May 1940, with a military force and in violation of its solemn assurances, invade, occupy, and attempt to subjugate the sovereign territory of the Netherlands.82

The assurances to respect the territorial integrity of various countries were hence treated as binding commitments by the Allied Powers drawing up the Charter, as well as the prosecution in its indictment. Their breach was considered to go as far as to entail individual criminal responsibility as a ‘crime against peace’. Verdross, writing in 1955, therefore mentions the London Agreement as the (second) example (besides the PCIJ in the Eastern Greenland case) where 81  Charter of the International Military Tribunal (‘Nuremberg Charter’), Art 6(a). International Military Tribunal, Trial of the Major War Criminals (1947) 11 (also available at http://avalon.law.yale.edu/imt/imtconst.asp), emphasis added. 82   Nuremberg Trial Proceedings, vol 1, Indictment: Appendix C, 84 (also available at http:// avalon.law.yale.edu/imt/countc.asp). See also charges XIX (assurances given to Belgium), XX (assurances given to Czechoslovakia), XXII (assurances given to Norway), XXIII (assurances given to Luxembourg) and XXVI (assurance given to Yugoslavia), all included therein.



Assurances Leading up to the Second World War 103

the bindingness of promises in international law had been assumed.83 Most commentators dealing with this case draw the same conclusion as Verdross has done by listing the London Agreement as proof of the existence of promises in international law.84 Rubin, on the other hand, in his highly critical account published shortly after the Nuclear Tests cases, considers the assurances made by Germany to merely underline an already existing obligation and the indictment not to have drawn ‘any direct legal consequences from these pronouncements’. The IMT, according to Rubin, also did not give any weight to the assurances made.85 It should, however, be noted at the outset that this argument does not address the fact that the four Allied Powers, in drafting the statute, considered an infringement of an assurance to be a possible ‘crime against peace’. This fact alone is noteworthy, independent of whether or not the tribunal subsequently found an accused guilty of this offence in applying the statute and identifying a unilaterally binding assurance to have been breached. Moreover, while it is correct that the Tribunal did not draw any special consequences from the German pledges, this does not mean that they were considered of no legal value; the Tribunal merely stated that it considered neither the various treaties (which, no doubt, included binding commitments) concluded by Germany with the countries it subsequently attacked to be of special importance for the judgment nor the assurances it made, since it had already concluded that the wars waged were wars of aggression. The alternative charge for committing a crime against peace, ie waging a war ‘in violation of international treaties, agreements or assurances’ was therefore of no further relevance for the judgment.86 The indictment, on the other hand, can hardly be considered not to have drawn direct legal  Verdross, Völkerrecht, n 70 above, 133.   See, eg Suy, Actes Unilatéraux, n 26 above, 131–32; Jacqué, Eléments, n 34 above, 250; Rousseau, Droit international public, vol I, n 33 above, 425–26. 85   See Rubin, ‘Unilateral Declarations’, n 4 above, 3–4. Denying the ‘precedential’ value of this case, also Quadri, ‘Cours général’, n 4 above, 366–68, according to whom the Charter’s wording was at least ambiguous, as ‘assurances’ could be understood as informal agreements. The German assurances, according to Quadri, indeed formed such informal agreements as they had been made in response to demands and requests of the interested states. See, however, the critique by Jacqué, Eléments, n 34 above, 250–51, who (in this writer’s view rightly) rejects Quadri’s construction as artificial, as Germany was neither acting to accept an offer nor was it making one. 86   See the following introductory passage in the section ‘Violation of International Treaties’ in the judgment: ‘The Charter defines as a crime the planning or waging of war that is a war of aggression or a war in violation of international treaties. The Tribunal has decided that certain of the defendants planned and waged aggressive wars against twelve nations, and were therefore guilty of this series of crimes. This makes it unnecessary to discuss the subject in further detail, or even to consider at any length the extent to which these aggressive wars were also “wars in violation of international treaties, agreements or assurances” ’, International Military Tribunal, Trial of the Major War Criminals (1947) 216. See also the final passage in this section: ‘The Tribunal does not find it necessary to consider any of the other treaties referred to in the Appendix, or the repeated agreements and assurances of her peaceful intentions entered into by Germany’, ibid 218. 83 84

104  A History of Promises consequences from the breach of the assurances made, as it included the above-mentioned seven charges which are based precisely on such infringements. G  Austria’s Permanent Neutrality The next ‘case’, or better example of state practice as no tribunal or court was involved, that had numerous international legal scholars arguing over whether a promise was involved, is Austria’s declaration of permanent neutrality. The facts have been stated in numerous publications and can briefly be summarised as follows: To pave the way for the conclusion of the so called ‘State Treaty’ through which Austria was to regain its full sovereignty after the Second World War, Austria had indicated its willingness to undertake an obligation of permanent neutrality similar to the status of Switzerland. This aspect was apparently of particular importance to the Soviet Union and after some conversations on the matter between the two governments, a Memorandum was signed in Moscow on 15 April 1955 in which, inter alia, the following was agreed upon: 1. In the sense of the declaration already given by Austria at the conference in Berlin in 1954 to join no military alliances and to permit no military bases on its territory, the Austrian Federal Government will make a declaration in a form which will obligate Austria internationally to practice in perpetuity a neutrality of the type maintained by Switzerland. 2. The Austrian Federal Government will submit this Austrian declaration in accordance with the terms of the Federal Constitution to the Austrian Parliament for decision immediately after ratification of the State Treaty. 3. The Federal Government will take all suitable steps to obtain international recognition for the declaration confirmed by the Austrian Parliament. ... II. The Deputy Chairman of the Council of Ministers, VM Molotov and AI Mikhoyan, made the following declaration in the name of the Soviet Government with regard to the declarations of the Austrian Government delegation: 1. The Soviet Government is prepared to sign the Austrian State Treaty without delay. ... 4. The Soviet Government is prepared to recognize the declaration concerning the neutrality of Austria.87 87   This English translation is taken from (1955) 49 American J International Law (Supplement) 191, emphasis added.



Austria’s Permanent Neutrality 105

The State Treaty for the Re-establishment of an Independent and Democratic Austria was signed at Vienna on 15 May 1955 and entered into force on 27 July of the same year. A few months later, Austria passed a Constitutional Federal Statute, which in its principal Article I proclaimed: 1.  For the purpose of the permanent maintenance of its external independence and for the purpose of the inviolability of its territory Austria, of its own free will, declares herewith its permanent neutrality. 2.  In order to secure these purposes Austria will never in the future accede to any military alliances nor permit the establishment of foreign states on its territory.88

The above decision as adopted by Austria was subsequently notified to other governments, asking them to recognise the proclaimed neutralisation, which a majority of governments, including the four Allied Powers as well as Germany and Switzerland, expressly did.89 In an article on the matter, Rodolfo De Nova sketched the legal backdrop, the law on neutrality, against which the Austrian conduct was judged by most commentators at the time.90 As permanent neutrality, ie neutralisation, was understood as encompassing obligations not only for the neutralising state but also for states dealing with it, which had to respect and in no way violate this neutrality, neutralisation was believed to be achievable only by means of concluding a treaty; a unilateral neutralisation was largely considered legally impossible.91 Hence many (according to De Nova in 1958, indeed, the majority of) authors, understood the Austrian neutrality to have been brought about through a treaty. This treaty – here there is general agreement – was not the Moscow Memorandum itself; while some consider it to impose no legal obligations as they view it not as a binding agreement but merely an aide-mémoire, those who assume its legal bindingness accept the fact that the obligations flowing therefrom merely compelled Austria to work towards its new status by subsequently making a ‘declaration in a form which will obligate Austria internationally’. For some scholars, Austria has fulfilled this pledge by in fact concluding a treaty with each and every state that recognised its declared permanent neutrality: The note by which it informed the respective governments of its decision to adopt a permanent neutrality is seen as an offer, which 88   Translation taken from Josef Kunz, ‘Austria’s Permanent Neutrality’ (1956) 50 American J International Law 418, 420. 89   See Eduard Reut-Nicolussi, ‘Die österreichische Neutralitätserklärung vom 26 Oktober 1955’ (1956) Internationales Recht und Diplomatie 15, 19–20, citing the wording of various recognitions received by Austria; see also De Nova, ‘Neutralisation Österreichs’, n 30 above, 307. 90   De Nova, ‘Neutralisation Österreichs’, n 30 above, 298–320. 91   For this position see, eg Kunz, ‘Austria’s Permanent Neutrality’, n 30 above, 418 and the influential publication of Karl Strupp, Neutralisation, Befriedung, Entmilitarisierung (1933) 176.

106  A History of Promises the addressees are said to have accepted when they recognised it.92 With this opinion, the fact that the memorandum which sketched out the pro­ cedure as envisaged by its signatories spoke of a ‘declaration . . . which will obligate Austria internationally’ that was only subsequently to be ‘recognised’ by as many states as possible, is overcome by declaring the memorandum to be ‘badly drafted’ and the use of the word ‘recognition’ to be inappropriate.93 Other commentators apparently have more trust in the ability of states’ legal departments and their use of precise legal terminology. ReutNicolussi in his analysis goes as far as simply dismissing any treaty construction as ‘absurd’.94 Since he agrees that a neutralisation can never be unilaterally assumed, he draws the conclusion that Austria’s notification could and did not alter the legal landscape in any way; there was consequently also nothing for other governments to ‘recognise’ and Austria was in no way internationally bound through its actions to act as a neutral state. While Reut-Nicolussi’s assessment more adequately reflects the actions undertaken by Austria and the recognising governments when it rejects viewing them as conclusions of a treaty, it at the same time hinders Austria from achieving what it had openly claimed its intentions to be, ie to ‘become internationally bound’ by its declaration. The reason to do so is the already depicted assumption that permanent neutrality, seen as imposing obligations on third parties, cannot be achieved unilaterally. A third group of commentators, however, agree with Reut-Nicolussi only in rejecting the treaty construction, which, as Jacqué says, would indeed push consensualism in international law to an extreme, as neither Austria nor the states which recognised its neutrality felt they were becoming parties to a contract.95 Venturini also considers it as ‘artificial’ to attribute the meaning of offer and acceptance to acts of a different nature.96 A memorandum prepared by the US Office of the Legal Adviser before the United States answered Austria’s request for recognition strengthens this position, as it shows that the United States was well aware of the legal terminology employed: 92  See Coppini ((1957) Revue de Droit Internationale, Sottile 18) as cited by De Nova, ‘Neutralisation Österreichs’, n 30 above, 309; Quadri, ‘Cours général’, n 4 above, 365 and also Degan, ‘Unilateral Act’, n 31 above, 202, for whom, in the end, the ‘constitutional law was just an offer which obtained its effects in international law by its acceptance’. Some further references for this position are provided by De Nova, ‘Neutralisation Österreichs’, n 30 above, notes 2 and 33. 93   Criticising the Memorandum, Kunz, ‘Austria’s Permanent Neutrality’, n 88 above, 421; labelling the use of the word recognition ‘inapproprié’, see Coppini as cited by De Nova, ‘Neutralisation Österreichs’, n 30 above, 309. Similarly, Quadri, ‘Cours général’, n 4 above, 365: ‘la déclaration fut suivie par des actes qu’on a appelés à tort “de reconnaissance” ’. 94   Reut-Nicolussi, ‘Österreichische Neutralitätserklärung’, n 89 above, 21 (‘abwegig’). 95  Jacqué, Eléments, n 34 above, 251. 96   Venturini, ‘Actes Unilatéraux’, n 50 above, 405, ‘attribution artificieuse d’une valeur d’offre ou d’acceptation à des actes ou attitudes ayant une autre nature’.



Austria’s Permanent Neutrality 107 In its response to the note from the Austrian Government announcing its neutrality [Note: not offering!], the United States will state that it has ‘taken due cognizance of that constitutional law and recognizes the perpetual neutrality of Austria as defined therein’. The literal definition of the word ‘recognize’ is commonly accepted in terms of ‘to act or take note of’. Insofar as it relates to an official acknowledgement of an international status such as neutrality as declared by a sovereign government it thus requires the recognizing State to refrain from taking those actions with regard to the other State which might violate the accepted concepts of a neutral State in the international community. This, then, is the extent of the obligation assumed by the United States in recognizing the Austrian announcement of its neutrality.97

There is little reason to believe that other governments would have misunderstood their recognition to form the acceptance to an allegedly proposed treaty. Since Austria intended to become unilaterally bound by its declaration as a permanently neutral state, its declaration is not denied this effect by this third group of authors. The notification to various countries is understood to have elevated a domestic decision of neutrality onto the international plane,98 forming a binding promise under international law. This promise of neutralisation is necessarily different in its effect from a neutralisation achieved through a treaty, since a unilateral act can indeed only establish duties for its declarant and not force any unconsenting third state to respect this neutrality,99 which is precisely why Austria is believed to have sought recognition from third states, as it wanted to ensure that its permanent neutrality would henceforth be internationally respected. In this opinion, which has the merits of closely reflecting not only what the Memorandum’s signatories had said they intended to happen (ie have Austria make an internationally binding declaration which subsequently is to be recognised) but also the legal terminology later actually employed by the acting states, we are therefore in the presence of two unilateral acts: a promise, obliging Austria and Austria only, to remain neutral, followed by an act of recognition by which this neutrality is accepted by the recognising state, thereby compelling the latter in future to respect this status. Although there is little intellectual strength in mere numbers, this assessment, once discarded as an ‘isolated opinion’,100 has by now found ample support.101 97   Attorney, Office of the Legal Adviser (Wehmeyer) to the Legal Adviser (Phleger), Memorandum, ‘Nature of Austria’s Neutrality and Legal Implications of United States Response to the Neutrality Declaration’, 16 November 1955, MS Department of State, file 663.0021/11-1655, cited in Marjorie M Whiteman and Green Haywood Hackworth, Digest of International Law (Washington, 1963) vol 1, 350, emphasis added. 98   On this aspect Suy, Actes Unilatéraux, n 26 above, 134. 99   See especially De Nova, ‘Neutralisation Österreichs’, n 30 above, 299 et seq. 100   Quadri, ‘Cours général’, n 4 above, 365. 101  See De Nova, ‘Neutralisation Österreichs’, n 30 above, 305–11; Jacqué, Eléments, n 34 above, 251; Felix Ermacora, 20 Jahre österreichische Neutralität, 2nd edn (1975) 75; Suy, Actes Unilatéraux, n 26 above, 133–35; Venturini, ‘Actes Unilatéraux’, n 50 above, 405; Karl Zemanek,

108  A History of Promises H  Egypt’s Declaration on the Suez Canal The Egyptian declaration on the Suez Canal of 24 April 1957 is the next, again ‘disputed’, example of a binding assurance in international law.102 It was made at the end of the ‘Suez Crisis’ which began to unfold after Egypt decided to nationalise the Suez Canal Company on 26 July 1956.103 Its doing so prompted a protest by the United States, France and Britain, which claimed the nationalisation of the Canal Company would infringe upon the ‘international status’ of the Canal itself. Two international conferences in London followed in an attempt to come up with a new international system to operate the canal, but both met with strong opposition from Egypt, which refused to attend. The Security Council, seized in the matter by Britain and France, finally intervened by issuing a unanimous Resolution that listed a number of requirements which were to be fulfilled in order to reach a final settlement of the dispute.104 The situation, however, escalated into a military confrontation when Israel moved into the Gaza strip and the Sinai-Peninsula on 29 October 1956, quickly followed by an invasion of British and French troops into Egypt in order to occupy the Canal. Under the political pressure of the General Assembly105 and the agreement that a UN emergency force would be installed in the region, the invasion came to an end only a few months later, with British and French troops withdrawing in December and the last Israeli soldiers in March the following year. Parallel to the reopening of the Canal at the end of April 1957, Egypt issued the declaration which is of interest here. Unlike some of the other declarations mentioned, the written Egyptian declaration included a rather clear statement as to its intended legal bindingness as an ‘international instrument’, leaving little room to interpret it as merely a political pledge. Its final paragraph reads: This Declaration, with the obligations therein, constitutes an international instrument and will be deposited and registered with the Secretariat of the United Nations.106 ‘Neutral Austria in the United Nations’ (1961) 15 International Organization 408, 409. See also Rudolf L Bindschedler, ‘Die Neutralität im modernen Völkerrecht’ (1956) 17 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1, 4, according to whom a permanent neutrality can be established through a unilateral act. Contra, besides those authors mentioned at n 92 above, also Verdross, for whom the obligation for Austria has arisen only through the acceptance of (or acquiescence in) its notification, which was not a promise as it asked for recognition, Alfred Verdross, Die immerwährende Neutralität Österreichs, 4th edn (Vienna, 1977) 33. 102   For the complete declaration, see UN Doc General Assembly, A/3576 (also S/3818) or (1957) 51 American J International Law 673. 103   For a more detailed historical account, see, eg José A Obieta Chalbaud, The International Status of the Suez Canal, 2nd edn (The Hague, 1970) ch I, especially 18 et seq; Yves van der Mensbrugghe, Les garanties de la liberté de navigation dans le canal de Suez (Paris, 1964) 87. 104   See UN Security Council Res S/3675. 105   See UNGA Res A/RES/997 ES-I, A/RES/999 ES-I and A/RES/1002 ES-I. 106   See UNGA Doc A/3576 (= UN Doc S/3818) 5.



Egypt’s Declaration on the Suez Canal 109

The declaration was thereafter indeed deposited and registered with the Secretariat of the United Nations under Article 102 of the UN Charter and published in the United Nations Treaty Series.107 Yet, there is hardly any doubt that the declaration did not constitute a treaty, as it was unilaterally made without the involvement or acceptance, let alone the signature or ratification, of any other nation. As seen in the briefly sketched history leading up to the military invention, other countries were quite interested in and had actually demanded to work out a multilateral agreement which would install an international system for the Canal, an agreement that Egypt tried to avoid by making its unilateral move. The declaration’s unilateral character is hence widely accepted – as will be seen, for some countries it was the very reason they rejected it – and has been acknowledged by the UN Secretary-General, who during the press conference announcing the declaration’s registration, while clearly emphasising his purely administrative character in the procedure, pointed out that the word ‘agreement’ in Article 102 of the UN Charter could in his view be understood to include unilateral engagements.108 Critics of the declaration as an example of a binding promise in international law, therefore, have little trouble in qualifying it as a unilateral act, but raise doubts whether this unilateral declaration did in fact give rise to new legal obligations for Egypt. Here, two different problems are seen. In his chapter on promises, Suy includes the Egyptian declaration in the section on what he termed ‘pseudo-promises’. A pseudo-promise is said to be not a real promise, as through it a state merely promises its addressee to do what it is already obliged to do.109 In other words, while dressed as a real promise, such a declaration merely assures to comply with an already existing obligation and, in doing so, it at most recognises this obligation but it cannot newly create it. A convincing example for such a declaration, which might be labelled a ‘pseudo-promise’, is the pledge made by South 107   See United Nations Treaty Series, Registration No 3821, 1957, vol 265, 299. UN Charter, Art 102 provides that: ‘Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it’. 108   For the Secretary-General’s position during his press conference, see Jacques Dehaussy, ‘La déclaration égyptienne de 1957 sur le canal de Suez’ (1960) VI Annuaire Francais de droit international 169, 172 and Mensbrugghe, Canal de Suez, n 103 above, 299. For more on the registration of unilateral acts, see p 246. 109  Suy, Actes Unilatéraux, n 26 above, 140–41. But it should in this respect be kept in mind that a state is free to assume the very same legal obligation more than once and through more than one binding legal mechanism. Just as it can conclude numerous treaties including the same obligation (ie peaceful settlement of disputes, the insurance of human rights, free trade, etc), it is able to make numerous promises which all assure the same line of action, even vis-à-vis the same addressee. If the declarant state is already under an obligation vis-àvis the addressee to do what it now assures will be done, this declaration will, however, and without indications to the contrary, rather be understood and interpreted not as an expression of will to undertake a new and separately valid promise but as the declarant’s pledge simply to comply with its existing obligations.

110  A History of Promises Africa, in which it announced its ‘decision’ to continue to administer the territory of South West Africa in accordance with the mandate received from the League of Nations, even after the latter had ceased to exist. As the ICJ made very clear, the mandate given to South Africa was still in force even though the League of Nations no longer existed.110 South Africa was therefore not free to choose to assume or decline the mandate’s obligations vis-à-vis the international community and by declaring to do as it did, it was hence not creating a new legal obligation, but merely confirming and thereby recognising an already existing one.111 Returning to the Egyptian declaration, it too is classified by some commentators as a ‘pseudo-promise’, since it is said merely to reiterate the Constantinople Convention,112 which the declaration according to its own first paragraph expressly ‘reaffirms’. The question which necessitates a closer look is, hence, whether or not the Egyptian declaration really only reiterates the obligations already contained in that Convention. The latter was concluded on 2 Mach 1888, between Great Britain, Germany, AustriaHungary, Spain, France, Italy, the Netherlands, Russia and Turkey (the Ottoman Empire) and assures the free navigation of the Suez Maritime Canal.113 Its Article 1(1) reads: ‘The Suez Maritime Canal shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without distinction of flag’. And it is this free passage through the Canal which is at the centre of the Convention’s attention, which in its 16 Articles, inter alia, imposes the principle of equality in the use of the Canal and various prohibitions not to interfere with its free use, and establishes rules to be applied during war and to vessels of war travelling through the Canal. The declaration, on the other hand, only begins by reaffirming the terms and spirit of the Constantinople Convention which Egypt pledges it will continue to respect, observe and implement. But it cannot be reduced to merely having this function; if the declaration is, figuratively speaking, placed side by side with the Constantinople Convention of 2 March 1888, the result is not that of a clear ‘confirmatory match’, as the declaration covers aspects not included in the Convention. While the declaration’s second Article adds nothing new when it again pledges observance of the Constantinople Convention and to abide by the United Nations Charter, and Article 3(a) is also drafted in explicit refer110   See ICJ, South West Africa (Ethiopia and Liberia v South Africa), Preliminary Objections, Judgment, [1962] ICJ Rep 319, 334; see also ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep 16, 37. 111  ICJ, South West Africa (1962), Preliminary Objections, Judgment, n 110 above, 340. 112   Besides Suy, for this position see also Quadri, ‘Cours général’, n 4 above, 372. 113   For the text of the Convention see, eg US Department of State, The Suez Canal Problem, 26 July–22 September 1956; a Documentary Publication (Washington, 1956) 16–20; Mensbrugghe, Canal de Suez, n 103 above, Annex IV, 389–92 (French); Obieta Chalbaud, Suez Canal, n 103 above, Appendix B, 146–49.



Egypt’s Declaration on the Suez Canal 111

ence to the Convention in its assurance of free and uninterrupted navigation, the declaration, in the following, deviates from already existing obligations. Besides some rather vague declarations of intent, it includes the following: (i) the assurance that the tolls levied will be increased by no more than 1 per cent per 12 months unless otherwise agreed or failing such agreement as adjudicated by arbitration, the procedure of which is stipulated later on in the declaration (Article 3(b)); (ii) the assurance that the Canal is maintained and developed in accordance with the progressive requirements of modern navigation (Article 3(c)); (iii) the assurance that an autonomous Suez Canal Authority will operate the Canal (Article 4); (iv) the assurance than any future alteration of the Canal Code affecting the principles included in the Declaration can be challenged according to the arbitration proceeding established therein (Article 6); (v) the assurance that in case of a dispute with the Canal Authority an arbitration tribunal is available, composed of one nominee of the complaining party, one of the Authority and a third to be chosen by both, or, in case of disagreement, as determined by the President of the ICJ with the decisions made by a majority of its members being binding upon the parties (Article 7 (b–d)); (vi)  the assurance that differences arising between the parties to the Constantinople Convention will be referred to the ICJ and Egypt will take the necessary steps to accept the compulsory jurisdiction of the Court (Article 9 (b)).114 As none of these obligations is to be found in the Constantinople Convention it is not convincing to label the declaration a mere recognition of Egypt’s already existing obligations under it.115 The declaration instead goes further in its promises and it does so in an attempt to appease the international community, and especially the Security Council, which in the already mentioned Resolution had included the ‘fixing of tolls and charges by agreement between Egypt and the users’ within the requirements to be fulfilled, just as it had requested unresolved affairs to be settled by arbitration.116 Rubin dismisses the declaration on a different ground when he turns to the reaction of states to the declaration. Although he admits that Egypt’s 114   Egypt accepted the compulsory jurisdiction of the ICJ in relation to disputes that might arise under this declaration’s paragraph on 18 July 1957, see UNGA Doc A/3576/Add.1 (= S/3818/Add.1). 115   See also Dehaussy, ‘Déclaration égyptienne’, n 108 above, 171, 173–74; Mensbrugghe, Canal de Suez, n 103 above, 299; also Degan, ‘Unilateral Act’, n 31 above, 194–95, 203–04. 116   See UN Security Council Doc S/3675.

112  A History of Promises friends supported the declaration, he emphasises that despite the fact that ‘[t]he Suez Canal users in fact continued to use the Canal, and Egypt continued to administer the Canal according to the terms of the unilateral declaration, . . . the users claimed that their actions were not to be construed as an acceptance of the legal force of the Egyptian declaration’.117 In turning to the reactions of other states, it would of course be wrong to look for an ‘act of acceptance’, as a unilateral promise neither invites an acceptance nor need it, technically speaking, be accepted by its addressee. Yet, in order to be a fruitful example of state practice, it is true that the declaration needs to have been ‘accepted’ as binding for Egypt. While many states seem to have abstained from any express reaction, those present in the Security Council at the time came together to discuss the meaning of Egypt’s declaration. Here, Rubin’s assertion that (all) the Suez Canal users claimed their actions were not to be construed as an acceptance is too broad, as the situation appears to have been more complex; reactions were mixed and, in analysing them for present purposes, it is essential to hold apart whether a state rejected Egypt’s declaration on account of being displeased with the declaration’s content, or, and more importantly to us, on account of the declaration’s unilateral nature. The Chinese representative in the Security Council had in very clear words identified that the questions raised by the Egyptian declaration fell within these two distinct categories: The first relates to a unilateral declaration per se. One may ask how binding is it? How long can its terms be relied on? and what exactly does registration with the United Nations do to such an instrument? The other category of questions concerns the contents of this Declaration.118

While China refrained from answering the questions pertaining to the first category mentioned, other members did not, albeit being of a very different opinion on the declaration’s legal effect. France’s representative in very clear words rejected the declaration not only for its content, but also for its form, and voiced its country’s concerns especially about the revocability and modifiability of a unilateral assurance: What, then, is the real value of this declaration at the present time? We are told that it constitutes an international instrument which will be deposited and registered with the Secretariat of the United Nations: however, a unilateral declaration, even if registered, obviously cannot be anything more than a unilateral act, and we must draw the conclusion from these findings that just as the Declaration was issued unilaterally, it can be amended or annulled in the same manner.119   Rubin, ‘Unilateral Declarations’, n 4 above, 7.   Representative of China, UN S/PV.777, 26 April 1957, 14, para 59. 119  UN S/PV.776, 26 April 1957, 11, para 59, also printed in Alexandre-Charles Kiss, Répertoire de la pratique Francaise en matière de droit international public (Paris, 1962) vol I, 617– 18, see also the following comment made by France: ‘It is the nature of the declaration rather 117 118



Egypt’s Declaration on the Suez Canal 113

This position was shared in full by the United Kingdom,120 just as Cuba stressed that from its point of view: Declarations made by Governments last only as long as the Governments themselves, whereas treaties, ratified by parliaments in accordance with constitutional provisions, are obligatory for the entire period specified in the treaties.121

While Australia also regretted not having heard a firmer undertaking of a permanent nature,122 the representative of Columbia began by pointing out that the declaration, on account of its unilaterality, was indeed open to amendments by Egypt. This, however, was not to be true for the passages in which Egypt undertook the obligation to submit any dispute to arbitration and where it undertook to assume the compulsory jurisdiction of the ICJ; since these obligations were regularly assumed unilaterally, they (in the eyes of Columbia) were ‘irrevocable undertakings’.123 The representative of the Philippines, while regarding it as an interim measure, stressed the binding nature of the declaration which could be: lawfully . . . invoked by a user of the Canal, before any United Nations organ, as binding on the Egyptian Government from the moment of its binding acceptance for registration by the Secretary-General.124

Iraq, too, was ‘particularly pleased to see that the Egyptian Government considered its Declaration as a solemn undertaking and a binding international instrument’.125 The representative of the Soviet Union considered the question whether the declaration could be binding despite its unilateral character, to be ‘settled’ after Egypt had itself declared it to be an international instrument, when asking for its registration with the UN Secretary-General, who had acceded to Egypt’s request.126 Sweden, in a similar vein, accepted the declaration as an ‘internationally binding instrument’.127 The United States said it was not fully satisfied with the declaration’s content, but decided to refrain from any final judgment until the regime had been tried out in practice. Nothing regarding the declaration’s unilateral character was mentioned as troubling by the United States.128 than its content which makes it so serious. It is impossible to conceive of a unilateral settlement of the Suez Canal problem; whether or not it was registered with the United Nations Secretariat, Egypt would always be free to revoke it’, UN S/PV.778, 20 May 1957, 8. 120   Representative of the United Kingdom, UN S/PV.777, 26 April 1957, 18–19, para 86 and 20, paras 92–93; again at UN S/PV.778, 20 May 1957, 18, paras 114 and 118. 121   Representative of Cuba, UN S/PV.776, 26 April 1957, 12, para 65. 122   Representative of Australia, UN S/PV.777, 26 April 1957, 3, para 6. 123   Representative of Columbia, UN S/PV.776, 26 April 1957, 15–16, paras 84–85 and 17, para 92. 124   Representative of the Phillipines, UN S/PV.776, 26 April 1957, 14, para 73. 125   Representative of Iraq, UN S/PV.777, 26 April 1957, 8, para 25. 126   Representative of the USSR, UN S/PV.777, 26 April 1957, 12, paras 44–45. 127   Representative of Sweden, UN S/PV.777, 26 April 1957, 15, para 65. 128   Representative of the United States, UN S/PV.776, 26 April 1957, 3, para 11.

114  A History of Promises The case is of value in the present context, as it includes a country’s very clear attempt to bind itself not through a bilateral but through a unilateral act. Egypt not only expressly declared its written declaration with the ‘obligations’ contained therein to be an ‘international instrument’ but, in addition, chose to add a layer of formality by depositing it with the UN Secretary-General. In choosing to do so in a matter which was already in the spotlight of international attention after the Suez Crisis, Egypt presented the core question relating to all unilateral promises to the international community, ie (and requoting the Chinese representative) How binding are they? The answers provided by the members of the Security Council range from ‘not binding at all’ and ‘freely revocable’ (United Kingdom, France, Australia, Cuba) to ‘binding’ (Philippines, Iraq, Soviet Union, Sweden) and in parts even ‘irrevocable’ (Columbia). These different attitudes notwithstanding, and besides the fact that the declaration was felt by a majority of users not to fully comply with the six requirements included in the Security Council Resolution, it seems to have long outlived the ‘temporal’ character that had been attributed to it by many states at the time.129 I  North Sea Continental Shelf Cases The facts giving rise to the North Sea Continental Shelf cases of 1969 find the legal scholar searching in vain for a declaration that was worth much discussion on whether it was a promise under international law. It is nevertheless of some interest on account of the fact that a unilateral commitment by Germany had been alleged by Denmark and the Netherlands and was briefly dealt with by the ICJ. Since Article 6 of the Geneva Convention on the Continental Shelf, and its so called ‘equidistance’ method was, as such, not directly applicable to the Federal Republic of Germany for the simple reason that the latter had signed but never ratified the Convention, the Netherlands and Denmark, here in the words of the Court, argued that: the Convention, or the régime of the Convention, and in particular of Article 6, has become binding on the Federal Republic in another way – namely because, by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed the obligations of the Convention; or has manifested its acceptance of the conventional régime; or has recognized it as being generally applicable to the delimitation of continental shelf areas. It has also been suggested that the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up.130 129   See Dehaussy, ‘Déclaration égyptienne’, n 108 above, 182–83, also Mensbrugghe, Canal de Suez, n 103 above, 303–04. 130  ICJ, North Sea Continental Shelf, Judgment of 20 February 1969, [1969] ICJ Rep 3, 25, para 27, emphasis added.



North Sea Continental Shelf Cases 115

The Court, however, advised caution on these very broad allegations as follows: As regards these contentions, it is clear that only a very definite, very consistent course of conduct on the part of a State in the situation of the Federal Republic could justify the Court in upholding them; and, if this had existed – that is to say if there had been a real intention to manifest acceptance or recognition of the applicability of the conventional régime – then it must be asked why it was that the Federal Republic did not take the obvious step of giving expression to this readiness by simply ratifying the Convention. In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the régime of the convention is to be manifested – namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way.131

The Court drew the following conclusion: Having regard to these considerations of principle, it appears to the Court that only the existence of a situation of estoppel could suffice to lend substance to this contention – that is to say if the Federal Republic were now precluded from denying the applicability of the conventional régime, by reason of past conduct, declarations, etc, which not only clearly and consistently evinced acceptance of that régime, but also caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. Of this there is no evidence whatever in the present case.132

The ICJ continued by saying that it was therefore not necessary to subject each and every act on which Denmark had relied to full scrutiny, and after a brief enumeration of these acts dismissed them, as ‘in the result it appears to the Court that none of the elements invoked is decisive; each is ultimately negative or inconclusive; all are capable of varying interpretations or explanations’.133 Judge Ammoun, in his separate opinion, criticised the fact that the Court had as quoted assumed ‘only the existence of a situation of estoppel could suffice to lend substance to this contention’. In his opinion: The Judgment does not take into account a well-settled doctrine that a State may be bound by a unilateral act.134

As proof of the ‘well-settled doctrine’ referred to, Ammoun cites the introductory and final page of the section on the obligatory character of unilateral promises in Eric Suy’s book. Based on this doctrine, he dedicates   Ibid 25, para 28.   Ibid 26, para 30, emphasis added. 133   Ibid 26, para 32. 134  ICJ, North Sea Continental Shelf, Separate Opinion Ammoun, [1969] ICJ Rep 101, 120, para 21. 131 132

116  A History of Promises a very short passage in his separate opinion to analysing an announcement made by Germany, which is, however, quickly rejected and found to be irrelevant, since its reference was not even to the Convention’s section on the equidistance principle. Judge Ammoun then turns to acquiescence by conduct (which he also rejects in its application to the case at hand), and hence away from unilateral promises in international law.135 These passages within the judgment and the separate opinion show that the problematique of a unilateral commitment was by now not only on the parties’ but also on at least one of the ICJ’s judges’ ‘radar’ at the time. It is also noteworthy for the Court’s position not to ‘lightly presume’ the interpretation of a state’s conduct as signalling the acceptance of a legal régime in the light of it not having fulfilled the formal acceptance procedure, which it had helped to put in place by participating in the elaboration of a treaty on the matter. The fact that the majority of the Court chose not to take into account the allegedly ‘well-settled’ doctrine of unilateral acts as criticised by Judge Ammoun should, however, not be overstated in this context. Whether or not the doctrine could be characterised as ‘wellsettled’ at the time is doubtful, but not ultimately decisive for the question why the majority chose not to address it. After all, even for Ammoun there was very little evidence of a possible unilateral commitment in the case at hand, evidence that he himself refuted very quickly. Also, by moving straight to estoppel, the Court brushed off the table not only unilateral assurances, but also express recognition and recognition by conduct and mere silence in the form of acquiescence, surely more as non-applicable to the facts in the present case (as Ammoun indeed concludes in his separate opinion) rather than as generally non-existent. The acts before the Court simply included none which could be considered as including an assurance worthy of the name; they were instead, in the words of the Court, ‘ultimately negative or inconclusive’. J  Nuclear Tests Cases The ICJ delivered its judgment in the Nuclear Tests cases on 20 December 1974. It is a judgment which has become reasonably well known, yet not for the Court’s opinion on whether atmospheric nuclear testing as conducted by France in the region of French Polynesia at the time was legal. This not only legally interesting, but in addition politically explosive, question was not answered in the Court’s opinion, which has therefore been labelled one of judicial avoidance and has met with considerable criticism. While only producing a ‘mouse of a decision’136 as to the actual questions before   On acquiescence see chapter one, n 15.   Thomas M Franck, ‘Word Made Law: the Decision of the International Court of Justice in the Nuclear Test Cases’ (1975) 69 American J International Law 612. 135 136



Nuclear Tests Cases 117

it, the Court nevertheless, and en route to its conclusion that there was no need for any further adjudication, issued the landmark decision on the bindingness of unilateral assurances, ie promises in international law. For Thomas Frank, it thereby demonstrated that ‘cases need not have monumental outcomes to make monumental law’.137 Others, however, seem to interpret the ruling more as a monumental mistake. However, the bulk of criticism is not directed at the passage in the opinion which establishes the general bindingness of unilateral assurances. But before continuing any further in assessing the judgment’s impact and importance, the facts and the precise content of the decision need to be recalled. (i)  Facts of the Case and the Judgment Delivered by the Court Australia and New Zealand both instituted (what remained separate though largely identical) proceedings against France in respect of a dispute concerning the holding of French atmospheric nuclear weapon tests in the Pacific Ocean.138 Since France considered the Court to be ‘manifestly not competent’139 to adjudicate in the matter, it abstained from taking part in the proceedings, merely asking the Court through a letter to ‘be so good as to order that the case be removed from the list’.140 The ICJ, however, did not heed this request and the case remained before it, first resulting in an order, in which the Court asked France as an interim measure to ‘avoid nuclear tests causing the deposit of radio-active fall-out on Australian [respectively New Zealand and in addition the Cook Island’s, Niue’s and the Tokelan Island’s] territory’.141 France, nevertheless, conducted two further series of atmospheric tests in the Pacific, before the Court rendered its judgment. Requested by Australia: to adjudge and declare the carrying out of further atmospheric nuclear weapon tests in the South Pacific Ocean is not consistent with applicable rules of international law. And to order that the French Republic shall not carry out any further tests142

 Ibid.   For the following factual account see ICJ, Nuclear Tests (Australia v France), Judgment of 20 December 1974, [1974] ICJ Rep 253 and ICJ, Nuclear Tests (New Zealand v France), Judgment of 20 December 1974, [1974] ICJ Rep 457. As stated in Introduction, n 44, the facts underlying both cases were similar, however, the proceedings were not joined. As a consequence the Court issued two largely identical judgments on the very same day. Future references are to Australia v France only, unless otherwise indicated. 139  ICJ, Nuclear Tests (Australia v France), Judgment (1974), n 138 above, 255, para 4. 140   Ibid 257, para 14. 141  ICJ, Nuclear Tests (Australia v France), Order of 22 June 1973, [1973] ICJ Rep 99, 106 and ICJ, Nuclear Tests (New Zealand v France), Order of 22 June 1973, [1973] ICJ Rep 135, 142. 142  ICJ, Nuclear Tests (Australia v France), Judgment (1974), n 138 above, 256, para 11. The application from New Zealand was drafted in different wording (see [1974] ICJ Rep 460, para 11) but the Court nevertheless interpreted both as requesting the same. 137 138

118  A History of Promises the Court proceeded with its judgment. As indicated in its order, the disputed questions of the claims’ jurisdiction and admissibility were to be dealt with first, as preliminary matters. The ruling, however, elaborated that before these aspects could be addressed, it was necessary to take a step backwards and examine a question which was ‘essentially prelimin­ ary’ (or ‘pre-preliminary’ in the words of a dissent):143 on account of its ‘inherent jurisdiction’, the Court had first to ascertain whether a justiciable dispute (still) existed between the parties. The ICJ came to the conclusion that it did not, as follows. The Court first established that in spite of the application, which asked for a declaration that the carrying out of further atmospheric nuclear weapon tests in the South Pacific Ocean was not consistent with applicable rules of international law, Australia was in fact only interested in a termination of the French tests; the requested declaration of illegality of all future tests was said to be nothing more than a means to this end.144 In order to reach this decision, the Court relied on various statements made by the Australian (just as in the parallel case those of the New Zealand) representative. These statements were of importance to the Court, not only for its interpretation that the applicants’ aim was (only) a cessation of the tests, but in addition as evidence that both would have been satisfied to have achieved their goal if they had received a firm assurance by France that it was to refrain from any future atmospheric testing. Both applicants are cited by the Court as having repeatedly emphasised that they had not received such a reliable assurance from France.145 The Court continued by noting that France had in the meantime made numerous new public statements which, especially in light of the fact that previous French statements had been addressed and rejected as insufficient by the applicants, 143  ICJ, Nuclear Tests (Australia v France), Dissenting Opinion of Judge De Castro, [1974] ICJ Rep 372, 373, himself quoting Judge Fitzmaurice in the Northern Cameroons case. 144   The same was considered to be true for New Zealand. In light of the fact that its application, unlike that of Australia, did not even ask for an order against France ‘not to carry out any further tests’ but for the Court to find that the French conduct ‘constitutes a violation of New Zealand’s rights under international law, and that these rights will be violated by any further tests’, the Court’s ‘interpretation’ of New Zealand’s application goes even further. 145   The Court cites various statements made by the applicants in this regard. For Australia, see, eg ‘The concern of the Australian Government is to exclude completely atmospheric testing. It has repeatedly sought assurances that atmospheric tests will end. It has not received those assurances. The recent French Presidential statement cannot be read as a firm, explicit and binding undertaking to refrain from further atmospheric tests’, ICJ Nuclear Tests (Australia v France), Judgment (1974), n 138 above, 261, para 27; see also the text to n 149 below. For New Zealand, see, eg ‘New Zealand has not been given anything in the nature of an unqualified assurance that 1974 will see the end of atmospheric nuclear testing in the South Pacific’, [1974] ICJ Rep 465, para 27, and ‘It should . . . be clearly understood that nothing said by the French Government, whether to New Zealand or to the international community at large, has amounted to an assurance that there will be no further atmospheric nuclear tests in the South Pacific. The option of further tests has been left open. Until we have an assurance that nuclear testing of this kind is finished for good, the dispute between New Zealand and France persists’, ibid 465–66, para 28, emphasis of the Court.



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merited the ICJ’s attention. Although they had not been made before the Court, and partly after the oral hearings had ended, the new statements were, according to the ICJ, in the public domain, known to the applicants and, consequently, could not be ignored by the Court. The ruling continued by listing the relevant French statements, both old and new, in chronological order. (1)  The first was a statement contained in a communiqué issued by the Office of the President of the French Republic, a copy of which was communicated from the French Embassy in Canberra to the Australian Department of Foreign Affairs (this statement had been made before the oral hearings and was commented on as insufficient by Australia):146 The Decree reintroducing the security measures in the South Pacific nuclear test zone has been published in the Official Journal of 8 June 1974. The Office of the President of the Republic takes this opportunity of stating that in view of the stage reached in carrying out the French nuclear defence programme France will be in a position to pass on to the stage of underground explosions as soon as the series of tests planned for this summer is completed.

(2)  The second was a note from the French Embassy in Wellington sent to the New Zealand Ministry of Foreign Affairs on 10 June 1974 (although addressed to New Zealand, the Court ‘could not fail to take note’ of it also in the Australia v France judgment): France, at the point which has been reached in the execution of its programme of defence by nuclear means, will be in a position to move to the stage of underground tests, as soon as the test series planned for this summer is completed. Thus the atmospheric tests which are soon to be carried out will, in the normal course of events, be the last of this type.

Five further statements had followed the oral hearings. (3)  The President of the French Republic made a statement as follows at a press conference on 25 July 1974: on this question of nuclear tests, you know that the Prime Minister had publicly expressed himself in the National Assembly in his speech introducing the Government’s programme. He had indicated that French nuclear testing would continue. I had myself made it clear that this round of atmospheric tests would be the last, and so the members of the Government were completely informed of our intentions in this respect.

(4)  The Minister of Defence made a statement (the precise wording of which is not cited) in the course of an interview on French television on 16 August 1974 in which he said that the French government had done its best to ensure that the 1974 nuclear tests would be the last atmospheric tests. 146

  See n 145 above.

120  A History of Promises (5) The French Minister for Foreign Affairs made a statement on 25 September 1974, addressing the United Nations General Assembly, in which he said: We have now reached a stage in our nuclear technology that makes it possible for us to continue our programme by underground testing, and we have taken steps to do so as early as next year.

(6) and (7) Two statements (the precise wording of which is not provided in the judgment) were made by the Minister of Defence, both in a press conference on 11 October 1974, stating in almost identical terms that there would not be any atmospheric tests in 1975 and that France was ready to proceed to underground tests. The judgment emphasises: When the comment was made that he had not added ‘in the normal course of events’ [as was included in statement 2], he agreed that he had not. The Minister also mentioned that, whether or not other governments had been officially advised of the decision, they could become aware of it through the press and by reading the communiqués issued by the Office of the President of the Republic.147

Before turning to the legal principles involved, the Court concluded from these statements that ‘France had made public its intention to cease the conduct of atmospheric tests’. In doing so, it placed particular import­ ance on the statement made by the French President ((3) above) and the ones made by the Minister of Defence ((6) and (7) above). The ICJ then digressed from the actual facts of the case in its judgment to dedicate four paragraphs to a description of the status and scope of unilateral declarations on the international plane. The paragraphs form a separate section within the judgment and are written in an abstract textbook style, that is to say, they make no reference to the specific declarations before the Court, but rather present the ICJ’s perception of the law applicable to unilateral declarations as creating legal obligations. In them, the ICJ, in crystal clear words, affirmed that unilateral assurances devoid of any quid pro quo or acceptance can be binding upon the declaring state. No special formal requirements exist as long as a declaration is made publicly and carries the requisite intention to undertake a legal obligation. For the Court, an assurance’s bindingness is grounded in the principle of good faith. The relevant section of the judgment reads as follows: It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character  ICJ, Nuclear Tests (Australia v France), Judgment (1974), n 138 above, 265–67, paras 34–40.

147



Nuclear Tests Cases 121 of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made. Of course, not all unilateral acts imply obligation; but a state may choose to take up a certain position in relation to a particular matter with the intention of being bound – the intention is to be ascertained by interpretation of the act. When states make statements by which their freedom of action is to be limited, a restrictive interpretation is called for. With regard to the question of form, it should be observed that this is not a domain in which international law imposes any special or strict requirements. Whether a statement is made orally or in writing makes no essential difference, for such statements made in particular circumstances may create commitments in international law, which does not require that they should be couched in written form. Thus the question of form is not decisive. As the Court said in its Judgment on the preliminary objections in the case concerning the Temple of Preah Vihear: ‘Where . . . as is generally the case in international law, which places the principal emphasis on the intentions of the parties, the law prescribes no particular form, parties are free to choose what form they please provided their intention clearly results from it’. (ICJ Reports 1961, p 31). The Court further stated in the same case: ‘. . . the sole relevant question is whether the language employed in any given declaration does reveal a clear intention’ (ibid p 32). One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration. Thus interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.148

The Court continues by applying these principles to the statements made by France. However, it first takes note of the fact that the applicants had both commented on some of the earlier French statements and had voiced their opinion that they fell short of constituting a binding undertaking to stop all atmospheric nuclear testing. The legal value of one of the later declarations, that of the French Foreign Minister ((5) above), had 148

  Ibid 267–68, paras 43–46.

122  A History of Promises in fact been addressed by the Australian Attorney General, when he was asked about it in the Australian Senate on 26 September 1974, as follows: this statement falls far short of a commitment or undertaking that there will be no more atmospheric tests conducted by the French Government at its Pacific Tests Centre . . . There is a basic distinction between an assertion that steps are being taken to continue the testing program by underground testing as early as next year and an assurance that no further atmospheric tests will take place. It seems that the Government of France, while apparently taking a step in the right direction, is still reserving to itself the right to carry out atmospheric nuclear tests. In legal terms Australia has nothing from the French Government which protects it against any further atmospheric tests should the French Government subsequently decide to hold them.149

This interpretation notwithstanding, the Court opined that it had to form its own view on the ‘meaning and scope intended by the author of a unilateral declaration’. In doing so, it found that the declarations had to be regarded not as separate from each other but, with particular emphasis on declarations (3), (6) and (7) above, ‘as a whole’. They were made publicly and erga omnes and had to be seen not ‘in vacuo’, but as having been made in relation to the tests that were the subject of the proceedings before the Court. The ICJ drew the following conclusion: In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume that other States might take note of these statements and rely on their being effective. The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced. The objects of these statements are clear and they were addressed to the international community as a whole, and the Court holds that they constitute an undertaking possessing legal effect. The Court considers that the President of the Republic, in deciding upon the effective cessation of atmospheric tests, gave an undertaking to the inter­ national community to which his words were addressed. It is true that the French Government has consistently maintained, for example in a Note dated 7 February 1973 from the French Ambassador in Canberra to the Prime Minister and Minister for Foreign Affairs of Australia, that it ‘has the conviction that its nuclear experiments have not violated any rule of international law’, nor did France recognize that it was bound by any rule of inter­ national law to terminate its tests, but this does not affect the legal consequences of the statements examined above. 149   See ICJ, Nuclear Tests (Australia v France), Judgment (1974), n 138 above, 268–69, para 48 and 261–62, para 28, emphasis added.



Nuclear Tests Cases 123 The Court finds that the unilateral undertaking resulting from these statements cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration. The Court finds further that the French Government has undertaken an obligation the precise nature and limits of which must be understood in accordance with the actual terms in which they have been publicly expressed.150

By finding that the French government had now given the reliable assurance which both of the applicants had been found to have initially sought, the Court, as a result, considered the dispute to have disappeared. Therefore, it concluded, there was nothing left to adjudicate: the claim ‘no longer has any object and . . . the Court is therefore not called upon to give a decision thereon’.151 (ii)  Analysis and Critical Assessment The judgment’s reasoning has been perceived by numerous commentators as flawed in one or the other way and depicted as the ICJ’s way out of a dilemma of having to declare atmospheric nuclear tests as contrary to international law, whereby it would risk continued defiance by France should it decide to continue with its tests, while in all likelihood being ignored by China, which was also conducting atmospheric nuclear tests at the time. It was felt that the alternative of declaring such tests as not (yet) outlawed by customary international law would have flown in the face of international efforts at the time to forbid such activity and at least to have hampered the evolution of a customary prohibition in this area.152 While such insights into what drove the Court to reach its conclusion are certainly of interest, it would be false simply to discard its ruling on this account as being born out of a very special politically loaded situation and hence as having no further impact on the evolution of international law. After all, it is largely irrelevant whether the judges applied certain legal principles while gritting their teeth, or embraced them wholeheartedly in order to flee out of a cul de sac, if, and as long as, the legal reasoning on its own withstands closer legal scrutiny. This is where the emphasis must lie. Also, as Ian Brownlie stressed within the Commission: Much law did in fact emerge from cases regarded at the time as narrowly based. It was true that special circumstances had tempted ICJ to walk off stage in the Nuclear Tests cases, and there was reasonable scepticism about the application   Ibid 269–70, para 51.   Ibid 272, para 59.   For this dilemma, see, eg Pierre Lellouche, ‘The International Court of Justice: the Nuclear Tests Cases – Judicial Silence v Atomic Blasts’ (1975) 16 Harvard International Law Journal 614; Franck, ‘Word Made Law’, n 136 above, 612; Wilhelm A Kewenig, ‘Der Internationale Gerichtshof und die französischen Kernwaffenversuche’ in Recht im Dienst des Friedens, Festschrift für Eberhard Menzel (1975) 346–47. 150 151 152

124  A History of Promises of the principle of good faith to the particular facts. But that was another matter, and States did currently rely on the Nuclear Tests cases.153

This is precisely what Thomas Franck underlined by, as cited above, referring to a mouse of a decision capable of monumental law. In the end, various ‘legal clusters’ within an opinion can continue to stand for themselves, even if a judgment as a complete whole should fail to convince; and it is only the issue of the bindingness of unilateral assurances which is of interest in the present context and merits closer analysis.154 The introductory passage to the Court’s depiction of the legal framework applicable to unilateral and binding declarations includes no reference whatsoever to any of its or its predecessor’s earlier judgments, let alone to any external source. The Court rather pretends that any such reference is not necessary since it was ‘well recognised that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations’. This passage in its choice of words follows in the footsteps of the PCIJ’s ‘beyond dispute’ findings of the legal bindingness of a unilateral declaration, when it considers the bindingness of unilateral declarations simply to be ‘well recognised’. On account of its very broad drafting, the passage, however, actually camouflages what the Court is asserting, making it less open to attack; instead of referring to unilateral assurances or even promises as being generally accepted as a source of unilateral legal obligations, the judgment instead speaks of the much broader overall category of ‘unilateral acts’ concerning factual as well as legal situations, which ‘may’ give rise to creating legal obligations. The legal audience is likely to agree with this assertion since acts of recognition or unilateral acts giving rise to estoppel will come to mind; here, the conclusion that these acts have a compelling legal effect is indeed well recognised. But the ICJ did not use this introduction to dwell on unilateral acts such as recognition or a declaration’s possible effect under the principle of estoppel (which would have necessitated a finding of detrimental reliance by the addressee);155 instead, it went on to pronounce on the bindingness of various unilateral assurances. As has been shown in this chapter, 153   See Brownlie, ILC, Summary Record of the 2526th Meeting, UN Doc A/CN.4/SR.2526 (1998) 49, para 7. 154   For the judgment in its entirety and the various legal questions involved see, eg Brigitte Bollecker-Stern, ‘L’affaire des essais nucléaires francais devant la Cour Internationale de Justice’ (1974) Annuaire Français de Droit International 299; Kewenig, ‘Die französischen Kernwaffenversuche’, n 152 above, 323–48; R St J Macdonald and Barbara Hough, ‘The Nuclear Tests Case Revisited’ (1977) 20 German YB International Law 337; Serge Sur, ‘Les affaires des essais nucléaires’ (1975) 79 Revue Générale de Droit International Public 972. Focusing only on mootness, José Juste Ruiz, ‘Mootness in International Adjudication: the Nuclear Tests Cases’ (1977) 20 German YB International Law 358; on declaratory judgments, Jean Pierre Ritter, ‘L’Affaire des essais nucléaire et la notion de judgement déclaratoire’ (1975) 21 AFDI 278. 155   For more on promises and estoppel see p 277 et seq.



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it would go too far to accuse the ICJ of having simply, out of the blue, invented a new mechanism for states to be subject to a legal commitment, by assuming a promise to be capable of creating legal obligations, as there are cases of state and especially court practice predating this ruling which had already drawn such conclusions. This fact notwithstanding, it remained a leap for the Court to assume that the general bindingness of unilateral assurances made by a state was not subject to debate but simply ‘well recognised’. Whether or not the Court was inspired by an article written by Fitzmaurice in 1957 remains speculation, but there are evident parallels in the Court’s finding and Fitzmaurice’s conclusion that: a declaration [not made in return for, or simultaneously with, any specific quid pro quo or as part of any general undertaking] may or may not create binding legal obligations for the declaring party, according to its wording and intent, and the circumstances of its making; but it seems fairly well settled that it can and will do so if it is clearly intended to have that effect, and is held out, so to speak, as an instrument on which others may rely and under which the declarant purports to assume such obligations.156

This assertion notwithstanding, the existence of binding unilateral assurances was still vigorously denied by some commentators at the time,157 with the ICJ itself up to this point not having taken a clear stand in this regard, despite the fact that it had repeatedly relied upon unilateral declarations made before it. The Court would therefore have bolstered the strength of its argument considerably had it included references to the evolution of the doctrine it was going to apply. That the latter’s precise legal principles were not (and could not be) generally known, is also illustrated by the fact that the Court found it necessary to sketch out in some detail the law applicable to obligations unilaterally assumed through a state’s assurance before it pronounced on the effect of the French declarations. In doing so, it emphasised the following: (i) it is the intention of the state making the declaration that it should become bound according to its terms which confers on the declaration the character of a legal undertaking; (ii) such an undertaking, if given publicly and with an intent to be bound, is binding; (iii) no quid pro quo, no subsequent acceptance nor even any reply or reaction from other states is required for the declaration to take effect; (iv) the intention is to be ascertained by interpretation of the act; 156   Sir Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–4: Treaty Interpretation and Other Treaty Points’ (1957) 33 British YB International Law 202, 230. 157   See especially Quadri, ‘Cours général’, n 4 above, 361 et seq. The critical article by Rubin, ‘Unilateral Declarations’, n 4 above, published shortly after the Nuclear Tests cases, also proves this point.

126  A History of Promises (v) a restrictive interpretation is called for where a statement limits the state’s freedom of action; (vi) there are no formal requirements as the sole relevant question is whether the language employed in any given declaration reveals a clear intention to be legally bound; (vii) the binding character of an international obligation assumed by unilateral declaration is based on good faith. Nearly as interesting as these abstract findings is how the Court actually applied them. As has been seen, the ICJ first brushed away the fact that Australia had not placed any reliance on the declarations made by France, which it had repeatedly rejected as insufficient.158 The reason the judges provided for considering this aspect to be of no particular relevance was that the Court had to come to its own opinion of the meaning and scope which France had intended its declarations to have. Since courts are generally not bound by the legal interpretation assumed by one of the parties, and assessing the law is their prerogative, this finding might at first glance not be very surprising. But the Court’s approach touched upon a question which goes to the very heart of the bindingness of unilateral assurances, which is: Can an assurance be binding upon the declarant visà-vis an addressee if the latter has not relied on it and even openly rejects the declaration made? In other words: Is (actual or at least presumed) reliance a necessary ingredient to establish the bindingness of a unilateral assurance? The Court did not provide an express answer to this question, which will be picked up again when addressing the basis for a promise’s legal bindingness in chapter three.159 The pertinent question at this point, however, is whether the ICJ dismissed reliance as being of any importance in deciding not to give any weight to the Australian statements which maintained that Australia was not relying on the French declarations as binding commitments. If this were the conclusion to be drawn, it would be a troubling one, because as a result, a state which has changed its mind after having made a promise in the past would remain bound to adhere to an ‘outdated policy’160 once proclaimed, even though and where the addressee benefiting from it had, in fact, long dismissed it. Indeed, not only an Anglo-Saxon lawyer such as Thomas Franck, but most lawyers will probably feel what (with some understatement) has been identified by him as ‘mild distress’,161 if the Court had actually held that a state has   See especially the statement of the Australian Attorney General, text to n 149 above.  See p 194. 160   See in this respect the criticism voiced by Rubin, ‘Unilateral Declarations’, n 4 above, 30, who, however, goes further when he considers ‘us all losers’ where a state was bound to adhere to an assurance made, unless another state had detrimentally relied on the declaration made. Rubin hence opts for dealing with assurances only via the legal principle of estoppel. For more on promises and estoppel, see p 277. 161   Franck, ‘Word Made Law’, n 136 above, 620. 158 159



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to follow a declaration irrespective of whether another state has relied upon it. Apart from disquieting large parts of the legal profession, such an interpretation would lead to a manifest contradiction with the ICJ’s very own finding that the binding character of an international obligation assumed by unilateral declaration is based on ‘good faith‘ (as chapter three will establish in more detail). Good faith cannot make binding a declaration in which no faith has (at least presumably) been placed by another legal subject. Taking a closer look at the Court’s holding in fact reveals that it did not discard reliance, as the whole judgment hinges on the assumption that the applicants had received the assurance which they had sought from the very beginning. Instead of completely dismissing reliance, the ICJ, on account of the peculiarities of the case, therefore seems rather to have lowered the bar for finding what has been termed ‘constructive reliance’162 to be present and sufficient for the French declaration’s bindingness in this case. The assumption that the Court did so derives from the perception that the ICJ, in terms of the addressee’s reliance on the declarations, was in the following dogmatic pickle: according to the Court, the French declarations were made as legally binding assurances by France. Australia and New Zealand had both sought an unequivocal assurance and had hence openly signalled their will to rely on an assurance received. This ‘perfect match’ notwithstanding, the applicants (under the reasoning of the Court) had chosen to reject the French statements in drawing the wrong conclusion that they lacked the requisite precision and France consequently any intent to be legally bound. Had the Court now found that the Australian display of non-reliance had destroyed any good faith grounds for the declarations to become binding, it would have adequately applied the doctrine it proclaimed as being based on ‘good faith’ in establishing the legal bindingness of a declaration (see further chapter three), but at the cost of ignoring the fact that the interpretation given to the French statements as intentional legal commitments by the Court’s own judgment was likely to alter the applicant’s perception and allow them to rely on the French declarations made. Indeed, after the Court pronounced its judgment, the Australian Prime Minister openly declared Australia now to be satisfied with the legally binding assurances made by the French Republic.163 The Court’s solution in light of this situation was hence not that it held reliance to be of no importance, but that it was satisfied that Australia would have relied, had it correctly interpreted the declarations made by France, and that it was understood as being still willing to rely on such an unequivocal unilateral undertaking as was now found to exist by the Court. Notwithstanding this, it was (as Thomas Franck correctly observed) only 162 163

  Ibid 619.  See Le Monde, 8 January 1975, as cited in Franck, ‘Word Made Law’, n 136 above, 619.

128  A History of Promises the Court which at that point in time was actually placing reliance on the declarations made.164 Yet, it considered this to be sufficient, as it created the basis for Australia (and New Zealand) to find that they had actually already received what they had been looking for: The applicant has repeatedly sought from the respondent an assurance that the tests would cease, and the respondent has, on its own initiative, made a series of statements to the effect that they will cease.

As a side note, this is not to overlook that the approach chosen by the Court is highly problematic, if seen as a general principle for unilateral commitments and through the eyes of a declarant making a unilateral assurance. A promising state will not know what consequences will arise if its declaration is rejected by its addressee. Can the latter still later invoke it against the declarant? With the Court’s decision this would be a possibility as the rejection may turn out to have been made on the false assumption that the declaration as such was insufficiently clear and not binding. The more adequate solution for future scenarios in the interest of legal security therefore, even if more painful for the addressees in question, would rather be to consider the declarant no longer bound by its statement, even if a court might find it in fact to have reached the requisite threshold in order to be understood as manifesting a will to be legally bound. The fact that the Court interpreted the French declarations completely differently than two of their addressees, Australia and New Zealand, had done (the declarations were, after all, understood as being erga omnes declarations), draws attention to the important aspect of how the ICJ actually established that France had in fact intended to be legally bound by its public statements. The Court, as we have seen, did not go to the trouble of analysing the value of each declaration but instead assumed the presidential declaration along with those ‘of the members of the French Government acting under his authority, up to the last statement made by the Minister of Defence’ to ‘constitute a whole’. While doing so, the ICJ stressed that acts of the President could undoubtedly be attributed to France, a position that will cause little dispute in international law, as Heads of State are generally understood as being capable of committing their country on the international level.165 The same cannot as easily be assumed for acts of the Minister of Defence, yet the Court is not the least concerned with this aspect, as it seems to assume that the declarations ‘as a whole’ are simply attributable to France via its Head of State. How numerous statements can be understood as constituting ‘a whole’ is, however, hard to grasp, just as why such grouping should matter: if the Court   Ibid 618.   For treaties, Vienna Convention, Art 7(2) provides that, inter alia, Heads of State are ‘in virtue of their functions and without having to produce full powers’ considered as representing their state. 164 165



Nuclear Tests Cases 129

was to conclude that none of the individual declarations could be understood as a binding commitment (the ICJ did not clarify this), it would amount to rather awkward reasoning which, expressed mathematically, would raise the question posed by Rubin, ie whether in international law the sum of zeros can be more than zero.166 In addition, and although the ICJ laid so much emphasis in its abstract discussion on the importance of a state’s intention in creating a legal obligation (a fact that was later repeatedly stressed in the ILC),167 the way in which the Court came to the conclusion that France in fact intended to undertake a legal obligation is highly significant. First, the Court made not the slightest attempt to enquire what France actually wanted to achieve by making its declarations; it was not concerned with French motives or with what went on behind the scenes in France. Such insight would, of course, have been difficult for the Court to gain and not doing so is in keeping with its own assumption that the intention is to be ‘ascertained by interpretation of the act itself’, its language being of primary importance. Following this path, the Court first established that the French Republic had made public its intention to terminate atmospheric nuclear testing. Indeed, there can be no doubt that France had repeatedly done so. But how did the Court come to the conclusion that the French statements were made with an intention to undertake a legal obligation and were not simply the announcement of France’s political plans? By emphasising that the ‘actual substance’ of the statements and the ‘circumstances attending their making’ needed to be considered in determining the legal implications of the unilateral act, the Court offered little concrete help to determine how it came to the conclusion that: ‘[France] was bound to assume that other States might take note of these statements and rely on their being effective’. What the Court is thereby in effect saying is that it is less significant what France actually thought of its declarations at the time, but how other states perceived the declarations made: France was ‘bound to assume’ that other states were going to rely on these declarations ‘as effective’. The Court thereby shifted the emphasis from the French intention to the perception of other states, yet not the actual perception – the Court does not inquire how addressees in fact understood the declaration – but rather that of a reasonable addressee.168 What then can the reasonable addressee infer from the declarations made by France in answering the question whether it wanted to undertake a legal obligation? Nothing, really. The wording which the Court has declared to   Rubin, ‘Unilateral Declarations’, n 4 above, 28.   For more on this question see p 207 et seq. 168  This common ‘oscillation’ in legal arguments between a subjective and objective approach has been pinpointed by Martti Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument (Reissue with a new Epilogue, Cambridge, 2005), for various areas of international law, including the ICJ’s Nuclear Tests cases judgments at ibid 345–55. 166 167

130  A History of Promises be decisive in order to ascertain whether a state intends to undertake a legal obligation (or better: can be taken to have intended to do so by its addressees) does not provide any clues in the case before the Court. This is true not only for the statements which the Court used as supplement, but also for the principal ones made by the President ((3) above) and the Minister of Defence ((6) and (7) above). When the President ‘had (himself) made it clear that this round of atmospheric tests would be the last’, was this to be reasonably understood as a legal commitment? As other commentators have stressed, the French position in the Suez Canal case that unilateral undertakings could just as easily be unilaterally revoked169 could be cited to lead the reasonable observer to believe that France was hence very likely not intending to bind itself through its unilateral acts, as it apparently considered a unilateral instrument to be incapable of having such an effect.170 It must, however, be said that the ‘reasonable addressee’ would also have to be a very thorough one in its research to draw this conclusion, as it could not gather this information from the declaration’s wording itself, but would have to discover the relevant French position in the minutes of a Security Council meeting held 17 years prior to the French declarations on nuclear testing. The direct circumstances in which the declarations ‘as a whole’, and particularly those which followed the oral hearings, were made, are also of little help; they were neither proclaimed in a particularly solemn manner, nor did any other formal means (such as the declarations’ registration or at least their official notification via diplomatic channels or a face-toface meeting) underscore their importance, which could have served as indicative of an intended legal obligation.171 By nevertheless assuming a legal bindingness, the Court can therefore no longer pretend to be taking itself out of the equation; it is no longer merely in the position of a potential and reasonable addressee, but by interpreting the French declarations as binding, the World Court is in fact establishing what a reasonable observer may (from now on) assume. The ICJ is laying the groundwork through its judgment for a position in which subsequently the reasonable observing state can rely on declarations such as those of France as legal unilateral undertakings. The Court’s motivation in doing so is revealed by the short passage inserted before it actually moved on to reach its verdict on the declarations’ binding force:   See chapter two, text to n 119.   Rubin, ‘Unilateral Declarations’, n 4 above, 27. 171   This is true especially for declarations (3), (6) and (7) which the Court found it ‘must in particular take into consideration’, ICJ, Nuclear Tests (Australia v France), Judgment (1974), n 138 above, 267, para 41. The second declaration cited above was included in a note to New Zealand (only), and merely announced that ‘atmospheric tests which are soon to be carried out will, in the normal course of events, be the last of this type’, emphasis added. Declaration (5) was included in a speech before the UN General Assembly but was equally vague in respect of a future undertaking (‘we have taken steps to do so as early as next year’). 169 170



Nuclear Tests Cases 131 The validity of these statements must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States.

Rather than merely protecting this confidence and trust, the Court seems to be actively promoting it, as the French statements can now be relied upon and are elevated to binding commitments. The ‘reasonable state’ may now therefore infer a legal undertaking from (clear and specific) statements made by high ranking officials and rely upon them as such, at least where additional circumstances are present, which for the Court appear to have been present in the form of the ongoing proceedings before it, as it stressed that the declarations were not made ‘in vacuo’. It is true that the Court, in finding a legal commitment, and by even assuming France to have undertaken an ‘erga omnes’ obligation vis-àvis the international community, can hardly be seen to be applying its self-proclaimed ‘restrictive interpretation’. On the other hand, clarifications, developments and even complete shifts in a court’s jurisprudence are likely to come as a surprise to the parties before it and the Court, of course, has the possibility to apply this newly elaborated doctrine (more) restrictively in future cases, once the general principle is ‘out of the box’. The ICJ has also cushioned the blow for France, as it only found the latter to be compelled to do something which it apparently was going to do in any event, that is, refrain from future atmospheric tests and move underground. Most importantly, the Court has, however, shown that the importance of a state’s actual intent when making a declaration is somewhat relative and will in fact serve only as a theoretical point of departure, in what may be described as the Court’s detour, taken in order to ensure that the bindingness of unilateral assurances is as firmly grounded on the principle of state sovereignty, as it is on the principle of protecting the stability of and confidence in international relations. Often both principles will be compatible under the ICJ’s assumption (which is more accurate after its judgment has been pronounced) that states making clear unilateral statements can be assumed to have been aware that these declarations will be interpreted as binding, and to have hence intended such interpretation as the foreseeable result of their actions. What, however, if they have not in fact done so? The Court’s own approach has pointed the way to what is going to happen where a dispute arises and the two principles clash; here, the assumption of a state’s intent to be legally bound will be reduced to nothing but a mere legal fiction.172 In considering what a state ‘must have assumed’ its addressees were going to perceive, the protection is that of

172   Speaking of a ‘convenient but misleading fiction’, Macdonald and Hough, ‘Nuclear Tests Case Revisited’, n 154 above, 354.

132  A History of Promises the confidence and trust which could reasonably be placed on a declaration at the time, rather than of what a state actually intended.173 (iii)  The Separate and Dissenting Opinions The judgment just described was fully supported by (only) five of the 15 judges sitting on the bench.174 Since they were joined by four of their colleagues, who in separate opinions and on different reasoning still concurred in the conclusion of removing the case from the Court’s list, the final decision was supported by a majority of nine. Opposing them were six dissenters, who voiced their disagreement in one joint dissent supported by four and two individual dissents. Naturally, it is in these seven documents (four separate opinions and three dissents), in which the soundness of the Court’s reasoning, including its position on the legal effect of unilateral commitments, was first to be addressed. In light of the active role which the judges have played in promoting the interpretation of unilateral declarations as legally binding, their reactions are of special interest. Has the framework established by the Court been rejected amongst its concurring and dissenting peers on the bench? In his very brief separate opinion of only one page, Judge Forster emphasised that, in his view, the claim had not only subsequently become without object, but that it had ‘lacked object ab initio, and radically’. In respect of the unilateral declarations, Judge Forster stated: The recent French statements adduced in the reasoning of the Judgment do no more than supplement (to useful purpose, I admit) what I conceived to be the legal arguments for removal of the case from the Court’s list.175

Viewed as a supplement to his legal arguments, there is therefore no criticism of the reasoning on the bindingness of unilateral assurances here. Judges Gros and Petrén, in their two separate opinions, do not address the French declarations nor the doctrine on unilateral acts as pronounced by the Court; in their opinion, the case lacked any legal substance and should have been dismissed from the beginning. For Judge Ignacio-Pinto, the same is true: the claims should have been rejected from the outset as without object considering their strictly ‘political character’. He, however, does address the reasoning provided by the Court in respect of the French declarations, which he supports: 173  Although the ICJ therefore started from a subjective standpoint, it in effect clearly ended on an ‘outside’ view. Rather therefore than actually giving ‘effect to all three considerations: subjective French intent, subjective reliance by Australia and New Zealand and objective justice’ and making ‘no preference’, as Koskenniemi, From Apology to Utopia, n 168 above, 354 writes, the ICJ did in fact choose sides and paid no more than lip service to the French intentions. 174   These were President Lachs, Judges Bengzon, Morozow, Nagendra Singh and Ruda. 175   See ICJ, Nuclear Tests (Australia v France), Separate Opinion of Judge Forster, [1974] ICJ Rep 275.



Nuclear Tests Cases 133 The fact remains that, to my mind, the Court was right to take the decision it has taken today. I gladly subscribe – at least in part – to the considerations which have led to its doing so, for, failing the adoption by the Court of my position on the issues of jurisdiction and the admissibility of the Australian claim, I would in any case have been of the view that it should take into consideration, at least in the alternative, the new facts which supervened in the course of the present proceedings and after the closure of the oral proceedings, to wit various statements by interested States, with a view to ascertaining whether circumstances might not have rendered the object of the Application nugatory. Since, in the event, it emerges that the statements urbi et orbi of the competent French authorities constitute an undertaking on the part of France to carry out no more nuclear tests in the atmosphere, I can only vote in favour of the Judgment.176

Within the separate opinions, there is therefore no criticism of the reasoning as to the bindingness of unilateral declarations. Instead, Judge Ignacio-Pinto adds his support to the relevant passage and its application as contained in the Court’s majority opinion. Turning to the dissenting judges on the bench, the opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock offers (in their own words) a ‘vigorous dissent’177 to the Court’s decision that the claim no longer had any object. Indeed, in around 60 pages, the dissenters attack the judgment on numerous grounds,178 but the passage on the bindingness of unilateral declarations, or even the treatment of the French declarations as in casu binding, are not amongst them. In this regard, the dissenters merely point out that despite the judgment’s finding, the case should not have been dismissed: Moreover, the Court’s finding as to that unilateral engagement regarding the recurrence of atmospheric nuclear tests cannot, we think, be considered as affording the Applicant legal security of the same kind or degree as would result from a declaration by the Court specifying that such tests contravened general rules of international law applicable between France and Australia. This 176  ICJ, Nuclear Tests (Australia v France), Separate Opinion of Judge Ignacio-Pinto, [1974] ICJ Rep 308, 310, emphasis in the original. 177   See ICJ, Nuclear Tests (Australia v France), Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock, [1974] ICJ Rep 312. 178   In a nutshell, the dissenting opinion argues that the Court erred by in fact revising rather than merely interpreting the applications, which in the eyes of the dissenters clearly requested a declaratory judgment on whether atmospheric nuclear tests conducted by France after the application was filed (and not merely after the judgment was rendered) were in conformity with international law. The Court was also wrong to consider the case moot without the applicants having requested the discontinuance of the proceedings or even having been heard on this matter. In the eyes of the dissenters, the Court had jurisdiction to hear the claims under its Statute, Arts 36 and 37 together with Art 17 of the General Act of 1928, the relevant provision of which was still in force and to which France’s reservation under the Optional Clause, which excluded disputes in matters of national defence, was not applicable. The dispute between the parties hence continued to exist and it was a question that could not be dismissed as only political, since legal aspects had been put forward by the applicants which required the Court’s further scrutiny and for it to reach the merits of the case.

134  A History of Promises is shown by the very fact that the Court was able to go only so far as to find that the French Government’s unilateral undertaking ‘cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration’; and that the obligation undertaken is one ‘the precise nature and limits of which must be understood in accordance with the actual terms in which they have been publicly expressed’.179

Without criticising the Court for having pronounced on the bindingness of unilateral declarations in general, or the bindingness of the French declarations in particular, the four joint dissenters instead touch upon the important issue of the limits and the revocability of such a unilaterally assumed commitment, which in their opinion does not equate to a finding that the conduct in question was barred by general rules of international law. In point of fact, the Court left the precise limits of the obligations which were found to exist for France open, just as it did not rule out their revocation, but only their arbitrary reconsideration. What to make of this rather vague wording is taken up again in chapter three, where the revocability of promises is discussed.180 For this ‘history’, it is instead noteworthy that the doctrine, as such, had up to this point not been criticised by even one of the ICJ’s judges. Judge De Castro filed a separate dissent, which is of special interest as he dedicated a couple of pages within his opinion to the French declarations. Being amongst the dissenters, Judge De Castro also considered the Court to err in declaring the claims moot. However, in his view the Court was correct to take the French statements into consideration: They are clear, formal and repeated statements, which emanate from the highest authorities and show that those authorities seriously and deliberately intend henceforth to discontinue atmospheric nuclear testing.181

De Castro continued by emphasising that in analysing the French declarations, it was of primary importance to clearly distinguish between a declaration expressing the intention to be legally bound and a mere political statement that a declarant intends to follow a certain line of action in the future: Upon the Court there falls the task of interpreting their meaning and verifying their purpose. They can be viewed as the announcement of a programme, of an intention with regard to the future, their purpose being to enlighten all those who may be interested in the method which the French authorities propose to follow where nuclear tests are concerned. They can also be viewed as simple promises to conduct no more nuclear tests in the atmosphere. Finally, they can be considered as promises giving rise to a genuine legal obligation. 179  ICJ, Nuclear Tests (Australia v France), Joint Dissent (1974), n 177 above, 320, emphasis added by the dissent. 180   See p 251. 181  ICJ, Nuclear Tests (Australia v France), De Castro Dissenting Opinion (1974), n 143 above, 373, para 2.



Nuclear Tests Cases 135 It is right to point out that there is not a world of difference between the expression of an intention to do or not do something in the future and a promise envisaged as a source of legal obligations. But the fact remains that not every statement of intent is a promise. There is a difference between a promise which gives rise to a moral obligation (even when reinforced by oath or word of honour) and a promise which legally binds the promisor. This distinction is universally prominent in municipal law and must be accorded even greater attention in international law.182

In emphasising this distinction, De Castro is not in disagreement with the majority opinion signed by President Lachs, which equally pronounced on the important role of a state’s intention when it elaborated its abstract ground rules. De Castro seems to agree with the underlying doctrine that a unilateral promise can, as such, be binding upon a state, even though his use of the word ‘promise’ in the above passage apparently includes offers, since De Castro continued by pointing out that the law generally required a quid pro quo from the beneficiary to the promisor, and also allowed any promise to be withdrawn at any time before its regular acceptance by the person to whom it is made. A ‘pollicitatio’ as De Castro says, however, formed the exception to both of these principles. Pollicitatio, the Latin for ‘promise’, is thereby depicted as a unilateral beneficial act, which needs neither quid pro quo nor acceptance. De Castro, hence, not only did not criticise the Court’s approach, but supported the judgment in that a unilateral promise can as such be binding upon the state making it. There is, however, clear disagreement between De Castro and the Court’s judgment when it comes to the application of this doctrine to the case at hand. For De Castro, the Court was wrong to give an affirmative answer to the following questions: Do those statements of the French authorities with which the Judgment is concerned mean anything other than the notification to the French people – or the world at large – of the nuclear-test policy which the Government will be following in the immediate future? Do those statements contain a genuine promise never, in any circumstances, to carry out any more nuclear tests in the atmosphere? Can those statements be said to embody the French Government’s firm intention to bind itself to carry out no more nuclear tests in the atmosphere? Do these same statements possess a legal force such as to debar the French State from changing its mind and following some other policy in the domain of nuclear tests, such as to place it vis-à-vis other States under an obligation to carry out no more nuclear tests in the atmosphere?183

182 183

  Ibid 373–74, para 3.   Ibid 374–75, para 4.

136  A History of Promises For him: To these questions one may reply that the French Government has made up its mind to cease atmospheric nuclear testing from now on, and has informed the public of its intention to do so. But I do not feel that it is possible to go farther. I see no indication warranting a presumption that France wished to bring into being an international obligation, possessing the same binding force as a treaty – and vis-à-vis whom, the whole world? It appears to me that, to be able to declare that the dispute brought before it is without object, the Court requires to satisfy itself that, as a fact evident and beyond doubt, the French State wished to bind itself, and has legally bound itself, not to carry out any more nuclear tests in the atmosphere. Yet in my view the attitude of the French Government warrants rather the inference that it considers its statements on nuclear tests to belong to the political domain and to concern a question which, inasmuch as it relates to national defence, lies within the domain reserved to a State’s domestic jurisdiction.184

According to De Castro, the Court therefore wrongly assumed a French intention to bring into being an international obligation. The last dissenter, the Australian ad hoc Judge Barwick, agreed on this point. He too offered a long and detailed dissent, in which numerous aspects of the judgment were attacked. Again, however, the basic doctrine that unilateral assurances can as such be binding upon a state is not amongst them; its application to the French statements, however, is: This is a very important conclusion purporting to impose on France an internationally binding obligation of a far-reaching kind. Nothing is found as to the duration of the obligation although nothing said in the Judgment would suggest that it is of a temporary nature. There are apparently no qualifications of it related to changes in circumstances or to the varying needs of French secur­ity. Apparently it is restricted to the South Pacific area, a limitation implied from the fact that the source of the obligation is the communiqué of 8 June 1974 issued in the context of the imminence of the 1974 series of tests. The purpose and intention of issuing the communiqué and subsequently making the various statements is to my mind far from clear. The Judgment finds an intention to enter into a binding legal obligation after giving the warning that statements limiting a State’s freedom of action should receive a restrictive interpretation. The Judgment apparently finds the clear intention in the language used. I regret to say that I am unable to do so. There seems to be nothing, either in the language used or in the circumstances of its employment, which in my opinion would warrant, and certainly nothing to compel, the conclusion that those making the statements were intending to enter into a solemn and far-reaching international obligation rather than to announce the current intention of the French Government. I would have thought myself that the more natural conclusion to draw from the various statements was that they were statements of policy and not intended as undertaking to the international community such a 184

  Ibid 375, para 4.



Nuclear Tests Cases 137 far-reaching obligation. The Judgment does not seem to my mind to offer any reason why these statements should be regarded as expressing an intention to accept an internationally binding undertaking rather than an intention to make statements of current government policy and intention.185

It is worth taking note of the fact that none of the 15 judges, including its six dissenters, have therefore criticised the Court for the ‘textbook style’ paragraph on the legal force of unilateral declarations, which has been cited above. Those judges who have addressed the Court’s reliance on the French statements, be it in their separate opinions or as a dissenter, have either supported the doctrine and its application in full (Judge IgnacioPinto), viewed it as a supplement to the legal arguments to remove the case (Judge Forster), questioned the precise limits of the unilateral commitment found to be present in the case (Joint Dissent) or the application of the doctrine to the statements before the Court (Judges De Castro and Barwick). When taking the group of 15 judges as a pars pro toto for the international legal community, or at least as indicative of what is widely accepted therein, it appears that at this point, the position that unilateral assurances can as such become binding upon a declarant had reached this status.186 The precise application of this principle to France, however, was very clearly criticised. As will be seen, subsequent cases indicate that the Court is willing to take more seriously its self-declared approach of a ‘restrictive interpretation’, where states make statements by which their freedom of action is to be limited, without, however, questioning the underlying principles of binding unilateral assurances, ie promises, as such.

185  ICJ, Nuclear Tests (Australia v France), Dissenting Opinion of Judge Sir Garfield Barwick, [1974] ICJ Rep 391, 448–49. 186   Looking at the responses provided by scholars, the Court has received mixed reviews when it comes to the part of the judgment discussed here. Positive: Edward McWhinney, ‘International Law-making and the Judicial Process: the World Court and the French Nuclear Tests Case’ (1975) 3 Syracuse J International Law and Commerce 9, 46, who welcomes ‘the valuable new additions to international legal doctrine’; Franck, ‘Word Made Law’, n 136 above, considers the Court’s decision on this point to be an ‘important but not unconscionable extension of prior decisions respecting verbal statements’, at 615; speaking of a ‘clarification’ of the doctrine, Sergio M Carbone, ‘Promise in International Law: a Confirmation of its Binding Force’ (1975) 1 Italian J International Law 166. Kewenig, ‘Die französischen Kernwaffenversuche’, n 152 above, 340 et seq, does not question the doctrine as such but criticises the Court’s finding that the French declarations were binding undertakings and not merely political declarations of intent. The same is true for Macdonald and Hough, ‘Nuclear Tests Case Revisited‘, n 154 above, 352. Strong criticism on the other hand is voiced by Rubin, ‘Unilateral Declarations’, n 4 above, and Jerome B Elkind, ‘Footnote to the Nuclear Tests Cases: Abuse of Right – A Blind Alley for Environmentalists’ (1976) 9 Vanderbilt JTL 57, 59–64, both of whom, however, falsely discard all prior cases as providing any support for the ICJ’s judgment. Rubin is in addition under the impression that the Court had declared unilaterally assumed obligations to be irrevocable rather than only not ‘arbitrarily’ revocable. On revocation see p 251 et seq.

138  A History of Promises K  Swiss Declaration in Relation to Security Council Resolution 253 In keeping with the chronological order, a few interesting examples of state practice will be mentioned before returning to the World Court and its subsequent application of the doctrine announced so clearly in the Nuclear Tests cases. The statement made by Switzerland in 1977 vis-à-vis the United Nations is the first example in this context and includes a state’s declaration, the binding nature of which has been assessed in a UN memorandum published in the United Nations Juridical Yearbook under the heading ‘Legal Opinions of the Secretariat of the United Nations’.187 The example that is to follow after it and relating to unilateral declarations made by various states against torture and other inhumane treatment was equally addressed by a UN memorandum. Both illustrate how, only a few years after the Nuclear Tests cases, ambiguous unilateral declarations of states were open to very different interpretation. In the first case, the legal interpreter at the United Nations seems to assume a legal obligation instead of a mere political one rather lightly where a state indicates its future course of action. The second example illustrates a much more restrictive approach applied to unilateral declarations of states, again by the UN Secretariat. Reason for the first memorandum to be requested arose when Switzerland expressed its opinion that its practice of admitting holders of Southern Rhodesian passports implied no recognition of nationality, since passports were considered to be no more than ‘travel papers’. The question of implied recognition of nationality notwithstanding, the Swiss practice was in potential conflict with an express provision contained in Security Council Resolution 253 of 1968, in which the Council, acting under Chapter VII of the Charter, inter alia, in paragraph 5 decided that all states members of the United Nations should ‘prevent the entry into their territories, save on exceptional humanitarian grounds, of any person travelling on a Southern Rhodesian passport’. Although Switzerland was not a ‘state member’ of the United Nations at the time, the questions whether the Security Council intended to impose an obligation on nonmembers and, if so, whether it could do so or required the latter’s consent, according to the memorandum did not need to be discussed because Switzerland (referred to as ‘the State concerned’ in the memorandum) had made the following statement in a note of September 1968 to the UN Secretary-General: In its statement of 10 February 1967 concerning the Security Council resolution of 17 December 1966, the Federal Council explained that, for reasons of principle (the State concerned) as a neutral State, cannot submit to the mandatory sanctions of the United Nations. However, independently and without recog187

 See United Nations Juridical Yearbook (1977) 193–94.



Swiss Declaration in Relation to Security Council Resolution 253 139 nizing any legal obligations to do so, it has taken steps to ensure that any possibility of increasing Rhodesian trade is excluded and that the United Nations sanctions policy cannot be contravened. The Federal Council will maintain this position. With reference to the latest (253) resolution of the Security Council, it will attempt independently and always in the context of the legal order (of the State concerned), to see that Rhodesian trade cannot avoid the Security Council sanctions through its territory.188

The memorandum continued that Switzerland had reaffirmed and strengthened this declaration in a note of 17 February 1977, which read: The . . . Government, would however, independently and without recognizing any legal obligation in the matter, take care to prevent [its] territory from being used for the purpose of circumventing the Security Council sanctions.189

In the memorandum the UN Secretariat drew the following conclusion: It seems clear on the basis of the foregoing, that with respect to the denial of entry to Rhodesian passport holders the Government concerned has unilaterally and unreservedly accepted the obligation. To cite the note of 17 February 1977: ‘The Government would . . . take care to prevent [its] territory from being used for the purpose of circumventing the Security Council sanctions’. This statement would seem to be unequivocal and subject to no reservations.190

For the Secretariat, Switzerland had therefore ‘unilaterally undertaken to comply with paragraph 5 of Security Council resolution 253’ as the memorandum stated in another part;191 an undertaking with which the admission of persons holding South Rhodesian passports was not compatible, as the memorandum concluded. It should be noted that the interpretation of the Swiss declaration as a unilateral legal undertaking is, if anything, more in the tradition of the ICJ’s actual application of its doctrine to the French declarations than that of the announced ‘restrictive interpretation’. There is little to glean from the circumstances in which the declarations by Switzerland were made in terms of whether it intended to make a legally binding declaration, which leaves the declaration’s wording as the sole and primary indicator of the Swiss intentions. Here, it must be noted that Switzerland had used rather vague wording and a formulation which a lawyer (in a state department) would rarely choose when he or she was trying to express their country’s intention to undertake a legal obligation. In the first declaration, Switzerland stated that it would attempt to see that Rhodesian trade would not be able to avoid the Security Council sanctions through its territory. The second declaration, while slightly stronger in its assurance, still includes not the ‘hard wording’ which is to be found in binding resolutions or standard   Ibid 193, para 3.   Ibid 193, para 3. 190   Ibid 193, para 4, emphasis added. 191   Ibid 194, para 5. 188 189

140  A History of Promises treaties, such as ‘undertakes to’, ‘ensures to’, but the weaker ‘will take care to prevent’. Also, and although the Secretariat is technically correct in implicitly considering the Swiss declaration that it recognised no (existing) legal obligation in the matter to be of no hindrance to the country assuming a new obligation, the Swiss formulation that it would take care to do something coupled with ‘without recognising any legal obligation in the matter’, should have suggested even more caution in its approach. As already indicated, the ICJ rulings that were to come have indeed followed a more restrictive approach, under which a statement such as the one here can hardly be taken to qualify as a binding unilateral assurance. L  Declarations on Torture and Other Inhumane Treatment Another UN memorandum dealt with the question whether unilateral declarations deposited by member states in response to General Assembly Resolution 32/64 of 8 December 1977 relating to torture and other cruel, inhumane or degrading treatment or punishment constituted binding undertakings in international law.192 The General Assembly in its Resolution had called upon member states to reinforce their support of an earlier declaration annexed to Resolution 3452 on the Protection of All Persons from Being Subjected to Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment, by each adopting a unilateral declaration.193 These declarations were to be deposited with the SecretaryGeneral and a model unilateral declaration had been appended to the Resolution. It read as follows: The Government of . . . hereby declares its intention: (a) To comply with the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (General Assembly Resolution 3452 (XXX) annex); (b) To implement, through legislation and other effective measures, the provisions of the said Declaration.194

After Luxembourg had deposited such a declaration,195 some administrative questions within the United Nations, such as the adequate place of registration, arose, which also depended on whether the declarations were binding legal commitments or not. In assessing the declarations’ value, the Secretariat began by recalling the formal registration that was envisaged within the Resolution. However, the memorandum continued:  See United Nations Juridical Yearbook (1978) 198–99.   See UNGA Resolution 32/64. 194   As cited in United Nations Juridical Yearbook (1978) 198, note 81. 195   According to Nigel Rodley, The Treatment of Prisoners under International Law, 2nd edn (Oxford, 1999) 61 with references in his note 49, 33 states are reported to have made such declarations. 192 193



British Pledge on the ‘Five Techniques’ before the ECtHR 141 the model declaration annexed to the resolution would merely have Governments declare their ‘intention’ to comply and to implement, rather than indicate that they ‘will’ or ‘undertake to’ comply and implement. On balance, therefore, the resolution suggests that no binding obligation is intended.196

Here, the Secretariat therefore adopted a much more restrictive approach in its interpretation, by emphasising that the legal ‘code’ employed was not that usually used in order to indicate the willingness of a state to undertake a legal commitment. An examination of the ‘circumstances’, ie the debates which led up to the adoption of the Resolution, was held to confirm this perspective, especially as the principal sponsor of the Resolution, India, had introduced it with the following words: the fourth preambular paragraph [of the draft Resolution] recognized the need for further international action in the form of a legally binding international convention. The unilateral declarations called for in paragraph 1 would be an expression of the good faith of Governments and their moral commitment to the provisions of the Declaration on Torture.197

Although some states are said to have attributed some legal force to the declarations made, the Resolution adopted, the travaux préparatoires, and the fact that the ‘ultimate goal of a binding convention had been contrasted with the immediate object of securing moral commitments’,198 led the memorandum’s author to conclude that no binding obligation was intended. As indicated, it is this rather careful assessment in dealing with and addressing the legal value of a declaration made by a state, closely focusing on the circumstances as well as a statement’s precise wording, which has come to be employed in order to assess its nature as legally compelling or not. M  British Pledge on the ‘Five Techniques’ before the ECtHR The British representative before the European Court of Human Rights (ECtHR) in Ireland v United Kingdom199 also made a unilateral pledge, and one which was clearly inspired by the Nuclear Tests cases judgments. The case (which has received some attention, as it was the first inter-state case ever to be brought before the ECtHR) arose in relation to the practice of extra-judicial arrests as exercised from August 1971 until December 1975 by the Northern Irish authorities against persons suspected to be involved   United Nations Juridical Yearbook (1978) 198, para 3.   As cited ibid 199, reference to UN Doc A/C.3/32/SR.37, para 27, omitted. 198   Ibid para 4. 199  ECtHR, Republic of Ireland v United Kingdom, application no 5310/71, Judgment of 18 January 1978, Series A, No 25, 175. 196 197

142  A History of Promises with the Irish Republican Army (IRA).200 Shortly after the first arrest operations had been conducted (the so-called ‘Operation Demetrius’), Irish and subsequently Northern Irish and English newspapers published reports of various people alleging ill-treatment by security forces to have taken place during their arrest, interrogation or otherwise. Internal investigations of the matter within Great Britain commenced and focused especially on the use of five ‘disorientation’ or ‘sensory deprivation’ techniques201 that had been applied in combination during the ‘in-depth’ interrogation of numerous arrested people. The installed ‘Compton Committee’ issued its findings on the matter on 3 November 1971, in which it concluded that the applied techniques, while constituting physical ill-treatment, did not constitute physical brutality as it understood that term. The strong criticism which followed upon the publication of this finding in Great Britain led to the announcement made only two weeks later that another committee was going to be set up. Its task was to investigate whether the current interrogation practice as applied to people suspected of terrorism needed to be amended. It was in this situation, and with the second expert opinion still pending, that the Republic of Ireland on 16 December 1971 submitted an application against the UK government to the European Commission of Human Rights. Back in Great Britain, the new commission’s ‘Parker Report’ was subsequently adopted on 31 January 1972. Although divided on the question whether the techniques should be ruled out on moral grounds, it unanimously considered (at least some of) the methods to be illegal under domestic law. On the same day, the UK Prime Minister stated the following in the UK Parliament: [The] Government, having reviewed the whole matter with great care and with reference to any future operations, have decided that the techniques . . . will not be used in future as an aid to interrogation.

He added: The statement that I have made covers all future circumstances. If a Government did decide . . . that additional techniques were required for interrogation, then I think that . . . they would probably have to come to the House and ask for the powers to do it.202

This declaration notwithstanding, the European Commission on Human Rights considered itself not only competent but bound under the European Convention on Human Rights (ECHR) to express an opinion whether or not the use of the five techniques constituted a practice in breach of Article 200   For the following facts, see ibid para 11 et seq, and para 96 et seq; and the outline in ECtHR, Ireland v United Kingdom, Series B (1980), vol 23-I, 24. 201  These consisted of standing for hours in a ‘stress position’, hooding, subjection to noise, deprivation of sleep, deprivation of food and drink, ECtHR, Republic of Ireland v United Kingdom (1978), n 199 above, para 96. 202   Ibid para 101.



British Pledge on the ‘Five Techniques’ before the ECtHR 143

3 of the ECHR.203 In an extensive report,204 adopted on 25 January 1976, the Commission, inter alia, found the interrogation measures to have been applied in 14 cases and considered ‘the combined use of the five techniques in the cases before it constituted a practice of inhumane treatment and torture in breach of Article 3 of the Convention’.205 Whilst the Commission decided on 9 March 1976 to leave it at that and not to take the case before the ECtHR,206 the Irish government did not consider the matter settled and applied to the ECtHR only a day later, on 10 March 1976. In its written response to the claims brought by Ireland before the ECtHR, the United Kingdom did not contest the factual findings that the said techniques had been applied in the 14 cases identified by the Commission, nor did it (any longer) contest a breach of Article 3. Instead, and precisely on account of it not doing so, the British representatives asked the Court to determine the claim to be without object with regard to the criticised techniques, citing the ICJ’s decisions in the Northern Cameroons and the Nuclear Tests cases as jurisprudence of interest.207 The Irish Attorney General, Mr Costello, in the oral hearings before the ECtHR, inter alia, responded to the British submission as follows: It cannot be said that the object of the claim is achieved, when, after an unfavourable, non-legally binding opinion expressed by the Commission, a respondent government does not admit the validity of the conclusions made by the Commission or its opinion that breaches of the Convention occurred, but merely states that it will not contest those conclusions or the Commission’s opinion. It cannot be said, Mr President – as was said in the Nuclear Tests case – that the object of the applicant’s claim has been achieved by such a statement by the respondent Government.208

The above-cited statement of the UK Prime Minister was, according to Mr Costello, insufficient: The announcement of discontinuance made to the United Kingdom Parliament was qualified, however, by the statement that if the ‘five techniques’ were reintroduced in future, legislation for this purpose would be required. The respondent Government have failed to give an undertaking that such legislation would not be reintroduced and they have not done so in their counter memorial.209

A day later, on 8 February 1977, the British representative made the following statements before the Court:  ECtHR, Ireland v United Kingdom, Series B (1980), vol 23-I, 400–04.   Ibid 30 et seq. 205   Ibid 411. 206  See the letter from the Secretary to the Commission to the Registrar of the Court, ECtHR, Ireland v United Kingdom, Series B (1981), vol 23-II, 6. 207   See the counter-memorial of the United Kingdom, paras 0.10 and 0.19, 0.20, ibid 107–08 and 111. 208   Verbatim report of the public hearings held on 7, 8 and 9 February 1977, ibid 316. 209   Ibid 317. 203 204

144  A History of Promises In deference to that reasoning [of the Commission, and equally open to the ECtHR, that Great Britain had not gone far enough in its undertakings] we considered, before the case opened yesterday and before we heard Mr Costello, whether we could now remove all conceivable qualifications upon our undertakings as to the future and so remove that which the Commission, on the mater­ial before it, evidently felt to be a bar to the avoidance of adverse conclusions. We believe that we can. We are convinced that we can make a statement sufficiently clear, addressed to this Court as representing the international community of free Europe, so as to enable the Court to hold at this stage that that statement constitutes an undertaking possessing legal effect. Thus we hope that the Court will be enabled to face a situation in which the stated objective of the applicant Government has in effect been accomplished. . . . In those circumstances I am authorised to give, in relation to the ‘five techniques’, the following unqualified undertaking, and I measure my words with care. The Government of the United Kingdom have considered the question of the use of the ‘five techniques’ with very great care and with particular regard to Article 3 of the Convention. They now give this unqualified undertaking, that the ‘five techniques’ will not in any circumstances be reintroduced as an aid to interrogation.210

The ECtHR took ‘formal note of the undertaking given before it’ and cited the declaration (last two sentences provided above) in its judgment rendered, 18 January 1978. Unlike the ICJ, however, the ECtHR did not draw the conclusion from this undertaking that the issue was moot. The reason given by it was not the inadequacy of the commitment or that of the other safeguard measures adopted by Great Britain to assure the nonrepetition of the criticised treatment, but that the questions raised were of an interest that extended beyond the dispute between the parties in the present case: Nevertheless, the Court considers that the responsibilities assigned to it within the framework of the system under the Convention extend to pronouncing on the non-contested allegations of violation of Article 3. The Court’s judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties (Article 19).

As a side note, it should be mentioned that the Court subsequently found the applied techniques violated Article 3 of the ECHR by constituting a practice of inhuman as well as degrading treatment, but did not amount to torture. This last finding came as a surprise to many commentators, especially in light of the Commission’s unanimous finding that the treatment in its severity did amount to torture.211   Ibid 344, emphasis added.   For more on this aspect, see David Bonner, ‘Ireland v. United Kingdom, Annotation’ (1978) 27 International and Comparative Law Quarterly 897, 898–902. 210 211



Swiss ‘Petitpierre Assurance’ to the United Nations 145

In the present context, however, it is the declaration made by the British representative which is an important and interesting example of state practice for a number of reasons.212 First of all, the British agent, after emphasising his authority and his careful choice of words, in clear terms voiced the intention that the declaration should be understood and held by the Court to be a legal undertaking (as seen in the cases mentioned in this chapter, most declarants have not made it that easy for their addressees). Secondly, while made to a court and hence in good company with other similar declarations already addressed, the British representative not only marked his words as constituting a legally binding declaration, but also shed some light on why the ECtHR might function as the declaration’s addressee: it was seen as ‘representing the international community of free Europe’, and the declaration is therefore in fact addressed to the latter. The declaration should not be misunderstood and downgraded to constitute only a ‘pseudo-promise’, ie the mere assurance to comply with an already existing obligation,213 which it was not. The British representative did not make a (legally superfluous) declaration that his country would adhere to the ECHR and hence refrain from applying techniques that constitute a breach of it. In fact, Britain, just as the Irish Attorney General had stressed, did not actually admit that the techniques infringed the Convention and were hence outlawed by it, but merely chose not to contest the allegations made by the applicant and, further more, tried to turn the question whether or not the practice actually infringed the ECHR into an irrelevant one, by not only abandoning the techniques but by giving an unqualified undertaking that they would never be reintroduced. This unqualified assurance was therefore made irrespective of whether the methods do or do not infringe the Convention and, as such, must be qualified as a unilateral and binding promise by Great Britain, existing independently and in addition to the obligations included in the ECHR. N  Swiss ‘Petitpierre Assurance’ to the United Nations The declaration made by the Head of the Swiss Federal Department of Foreign Affairs, Mr Petitpierre, to the United Nations, according to which the United Nations and its officials would as a minimum benefit from the same treatment which was accorded to any other international organisation based on Swiss territory, dates back to 1946. As such it could have been mentioned much earlier in this chapter, but will only be addressed 212   Refering to the declaration as a valuable addition to state practice on unilateral acts and as important for the doctrine of sources of international law, see also Albert Bleckmann, ‘Anmerkungen zum Nordirland-Fall des Europäischen Gerichtshofs für Menschenrechte’ (1979) Europäische Grundrechte Zeitschrift 188. 213   For more see text to and following n 109 above.

146  A History of Promises now for the reason that it was not until 1979 that the question whether this declaration actually constituted a binding unilateral assurance was not only raised within Switzerland, but also answered by an expert opinion in a note dated 2 April 1979 of the Public International Law Section within its Federal Department of Foreign Affairs. The precise legal value of the declaration had become of importance when the European UN Office decided to oppose a fiscal decision by the Canton of Geneva, claiming to profit from the same standards as included in the Swiss arrangements with the International Labour Organization (ILO) and the World Health Organization (WTO). Although the relevant provision was not included in the agreement made with the United Nations, the Petitpierre declaration of 1946 had assured that: Les autorités suisses sont disposées à accorder aux Nations Unies et à leurs fonctionnaires un traitement au moins aussi favorable que celui accordé à toute autre organisation internationale sur le territoire suisse.214

The pledge of 5 August 1946 was well documented, as it had been made in the form of an official press statement (communiqué official remis à la presse) and had already been recalled in a statement of the Swiss Federal Council to the Swiss Federal Assembly on 28 July 1955. There, the Council had stressed the fact that the United Nations, as a result of the ‘assurance given’, were in a position which allowed the United Nations to demand to benefit from any advantage which, while not included in the provisional arrangement concluded with it, was accorded by Switzerland to another international organisation.215 In its expert opinion, the Department of Foreign Affairs came to the conclusion that the declaration of Mr Petitpierre constituted a binding promise for Switzerland. Its reasoning as to the bindingness of the declaration is based squarely on the Nuclear Tests cases. After finding the declaration to be of a unilateral character made by a competent state representative, the opinion addresses two conditions, which, it said, were necessary for a promise to become binding: the ‘will to promise’ and the promise’s publicity. These principles were applied as follows to the declaration: [The Department does not consider] Mr Petitpierre to have made that promise without having the intention of executing it . . . Also, one should not ignore that the declaration was reproduced in the message of 28 July 1955, which indicates 214   Lucius Caflisch, ‘Pratique Suisse 1982’ in (1983) XXXIX Schweizerisches Jahrbuch für Internationales Recht 183 (which may be translated as: ‘The Swiss authorities are ready to provide the United Nations and its officials with a treatment which is at least as favourable as that accorded to any other international organization on Swiss territory’). 215   Ibid 183: ‘nous avons donné aux Nations Unies l’assurance qu’elles seraient au bénéfice d’un régime “au moins aussi favorable, à tous égards, que celui accordé à toute autre organisation internationale sur le territoire suisse”. En d’autres termes, les Nations Unies peuvent demander d’être mises au bénéfice de tout avantage, non prévu dans l’arrangement provisoire, que nous accorderions à une autre organisation internationale’.



Declaration on the Use of War Material Exported out of Austria 147 the importance that was attached to it. One can therefore not only admit that the will to promise was real but also that the intention to execute it was certain. Concerning the promise’s publicity, it is necessary that it is made known to those to which it is of direct interest, be it through a diplomatic note or during a discourse. Diffused in the form of a press communiqué, the promise was without question brought to the attention of its addressee, the United Nations. The unilateral engagements undertaken by States must be done so in respect of the principle of good faith which governs international relations. [citation of and reference to the Nuclear Tests cases omitted] In sum, the above analysis undertaken by the Department brings it to the conclusion that the declaration made by Mr Petitipierre on 5 August 1946 to Mr Trygye Lie is binding.216

On account of the engagement undertaken by its Head of Foreign Affairs, the note concluded, the favourable treatment accorded to the ILO and WTO had therefore also to be attributed to the United Nations.217 O  Declaration on the Use of War Material Exported out of Austria The next case of state practice in the timeline followed here similarly illustrates how the doctrine pronounced by the ICJ in the Nuclear Tests cases has left its imprint on and influenced the practice of states. Under the Austrian Law on War Material, any export of war material out of its country is subject to a permission of the Austrian state.218 Section 3(2) of the Law allows the Austrian authorities to require the weapons’ recipient to specify in a declaration the material’s precise future use (Endverbrauchsbescheinigung). In a case that was brought to the attention of the Department for Public International Law (Völkerrechtsbüro) in the Austrian Federal Ministry of Foreign Affairs, this statement had been made by a ‘General A’ on behalf of his country.219 Before addressing whether the General had the power to 216   My translation of the following original: ‘[Le département ne pense pas] que M Petitpierre [a] fait cette promesse sans avoir l’intention de l’exécuter . . . De plus, il ne faut pas perdre de vue que la déclaration fut reproduite dans le message du 18 juillet 1955, ce qui indique toute l’importance que l’on y attache. [On peut] dès lors d’autant mieux admettre que cette volonté de promettre était réelle que l’intention de l’exécuter était certaine. En ce concerne la publicité de la promesse, il est exigé qu’elle doit être portée à la connaissance de ceux qui sont directement intéressés et cela soit par note diplomatique, soit à l’occasion d’un discours. Diffusée sous forme d’un communiqué de presse, la promesse de M Petitpierre est incontestablement parvenue à connaissance de son destinataire, les Nations Unies. Les engagements unilatéraux pris par les Etats doivent l’être dans le respect du principe de la bonne foi qui régit les relations internationales . . . En résumé, l’analyse à laquelle [il a été] procédé ci-dessus conduisent [le Département] à constater le caractère obligatoire de la déclaration de M Petitpierre faite le 5 août 1946 à M Trygve Lie’. Ibid 186. 217   Ibid 186. 218   Kriegsmaterialgesetz of 18 October 1977, Österreichisches BgBl no 540/1977, see also 29 Österreichische Zeitschrift für Öffentliches Recht und Völkerrecht 325–27. 219   For the following see Gerhard Hafner, ‘Die österreichische diplomatische Praxis zum Völkerrecht’ (1981) 32 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht 301, 343– 45, s 19.1.2.

148  A History of Promises commit his state, the Department in its memorandum, while referring to the Nuclear Tests cases, made it clear that unilateral assurances or promises made by a state gave rise to an international commitment, if the circumstances in which they were made showed that the declarant state had the intention for its statements to do so. In the present case, the Department concluded, the declarant must have been aware that the assurance and the commitment to in future comport itself as declared was a prerequisite for the conclusion of the (private law) contract in which his country was interested. The declaration hence had to be understood as having been made with the intention to undertake a legal commitment. Since Austria had received a formal note in which the Foreign Minister of Country X had via its Austrian ambassador assured the General’s legal competence, the Department considered that his declaration was sufficient to bind his country and give rise to the commitment required by the Austrian Law. P  German Approval Case before the German Constitutional Court Another interesting example of state practice involves an ‘approval’220 of the German government to the US government granting the latter the right to install nuclear-headed Pershing-II and Cruise missiles on German soil. The final approval by the German government was given in November 1983221 in order to execute part of the NATO ‘Double-Track Decision’, which had been adopted at Brussels on 12 December 1979. The German Parliament, however, was not asked to give these governmental actions its blessing in the form of a federal law. In the eyes of the Green Party in Germany, the far-reaching step taken required legislation and could not be made by the executive alone; it hence instigated proceedings before the German Constitutional Court which issued its ruling on 18 December 1984. In it, the precise legal nature of the ‘permission’ or ‘approval’ given by the German government turned out to be of particular importance, since Article 59(2) of the German Basic Law requires: Treaties that regulate the political relations of the Federation or relate to subjects of federal legislation shall require the consent or participation, in the form of a federal law, of the bodies responsible in such a case for the enactment of federal law.222 220  The term used by the German government, the Court and the applicant was ‘Zustimmung’, see 68 Entscheidungen des Bundesverfassungsgerichts (BVerfGE) 1. It can be translated not only as ‘approval’ but also as consent, permission or assent. The case is reported in the International Law Reports, German Federal Constitutional Court (BVerfG), Cruise Missiles Deployment (German Approval) [1984] ILR 365, with ‘Approval’ in the case name, while in the case report the declaration is mainly translated as ‘declaration of consent’. 221   The precise date apparently falls between 16 and 22 November 1983 but is not specified by the Court, see 68 BVerfGE 74–76. 222   Translation taken from translation of the Basic Law provided by the German Parliament and available at www.btg-bestellservice.de/index.php?navi=1&subnavi=68&anr=80201000, emphasis added.



German Approval Case before the German Constitutional Court 149

An important question was hence whether the German declaration had given rise to and formed part of a treaty that regulated the political relations of the Federation, in which case the German Parliament would have to pass legislation in the matter. The Constitutional Court, in its judgment, first established that the approval in question was not merely a declaration of intent, but had the legal effect of allowing the United States to deposit the weapons referred to above on German soil. Since the German government had explained that the final operative command, according to NATO guidelines, lay with the President of the United States, the Constitutional Court considered the permission’s legal effect as equivalent to a partial transfer of Germany’s sovereign right to decide over the use or non-use of weaponry stationed on its own territory.223 This approval did not form part of an international treaty, as there were no indications that the parties understood their actions as giving rise to a bi- or multilateral treaty.224 Further more, there were: no discernible reasons for the assumption that the Declaration of the Federal Government would be ineffective under international law and hence could not bind the Federal Republic of Germany.225

After having noted that a Foreign Minister was capable of binding his or her country under public international law and no defects of the declaration were apparent, the Constitutional Court went on to decide that declarations of the kind now before it did not fall under Article 59(2) of the German Basic Law and hence did not require the participation or approval of the German Parliament. This was true for ‘unilateral manifestations of will’226 made in the context of existing treaties just as it was true for other unilateral manifestations of will on the international level, such as acts of recognition, those terminating diplomatic relations, on the utilisation of the continental shelf or fishing zones and the denunciation of treaties. The Court also expressly rejected any extension of Article 59(2) to unilateral declarations or its analogue application, a step for which it has received some criticism, since it thereby allowed the executive to make far-going commitments without any parliamentary involvement, merely on account of its choosing to use a unilateral declaration and not a treaty 223  German Federal Constitutional Court (BVerfG), Cruise Missiles Deployment (German Approval) [1984] ILR 376 (= 68 BVerfGE 91). 224   Ibid 371 (= 68 BVerfGE 82). 225   Ibid 371 (= 68 BVerfGE 82), emphasis added. 226   The translation in the ILR speaks of ‘unilateral declarations of intent’, ibid 372, but this is not what the German original (68 BVerfGE 83) says, as there the phrase ‘völkerrechtliche Willenserklärung’ is used, which means ‘manifestation of will’. That this is precisely what the Court intended to say becomes clear also when looking at the examples provided by the Court for such manifestations of will, such as the act of recognition or the denunciation of a treaty, as these are not mere ‘declarations of intent’.

150  A History of Promises when doing so.227 As a result of the Court’s reasoning, the case was dismissed on the merits. The decision of the German Constitutional Court is interesting in this context, as it found Germany to have issued a unilateral binding approval or permission, although it is regrettable that the Court has not shed more light on the actual, final declaration made by Germany and the precise communication which took place between the United States and Germany. Had it done so, doubts which have been raised as to whether the assurance should not have been viewed as giving rise to a treaty228 could be more adequately addressed. Proponents of the treaty view have especially drawn blood from the word ‘Zustimmung’, here translated as ‘approval’, which necessitated the existence of something which could be approved. This ‘something’, so the argument ran, could logically not have been the deployment itself, as it had not yet begun, but only the United States’ intention to deploy. Hence, there must have been a manifestation of will by the United States which found a corresponding will on the German side, with both together giving rise to an oral treaty. The declaration could furthermore not be seen as a promise, since Germany could not by itself fulfil the ‘approval’, given that the missiles to be deployed actually belonged to the United States.229 Neither argument, however, is convincing. The latter can easily be refuted as, of course, Germany was not promising to install the missiles (a promise which it nevertheless still could have made, yet not have kept) but only to tolerate and allow such deployment by the United States, should the latter decide to do so. Such a promise, not to interfere with a certain action and to allow an act which without such permission would infringe upon the declarant’s rights, can surely be fulfilled by the declarant alone. The fact that there must have been ‘something’ that was approved similarly does not imply that the approval occurred in the form of a treaty, as this ‘something’ could very well be the future deployment itself, following the decision adopted in Brussels. Had Germany, for example, in the final approval stated: ‘In keeping with the decision adopted by NATO, we hereby allow the United States to deploy the therein specified missiles on our territory’, this would have been a unilateral assurance lacking a corresponding manifestation of will by the United States. As has been emphasised, the precise communication which has taken place between the parties is not illuminated but left in the dark by the Constitutional Court. As it stands, however, the 227  See especially the dissenting opinion of Judge Mahrenholz, summary, ibid 388 (= German original 68 BVerfGE 111–32). On this point, see also Christian Tomuschat, ‘Unilateral Acts under International Law’ in Droits et Culture. Mélanges en l’honneur du Doyen Yadh Ben Achour (Tunis, 2008) 1487, 1495–96. 228  See especially Theodor Schweisfurth, ‘Die “Zustimmung” der Bundesregierung zur Stationierung amerikanischer Mittelstreckenraketen in der Bundesrepublik Deutschland’ (1974) 22 Archiv des Völkerrechts 195, 196–203. 229   Ibid 200–02.

Military and Paramilitary Activities in and against Nicaragua Case 151 judgment forms just as important an example of state practice as the declaration itself, since the Court, which had the last say on the legal assessment of the declaration, left no doubt that it considered the approval to be binding as a unilateral act upon Germany. As the terms already indicate, the Court did not speak of a promise or of an assurance (Versprechen or Zusicherung), which raises the question already touched upon, whether the case can be mentioned at all in this context or rather involves a unilateral act of a different (and if so, its own) category, as it can hardly be classified as a recognition of an already existing legal situation or a (far-going) waiver of sovereign rights,230 let alone a protest. There is, however, little reason not to include this example amongst the category of promises discussed here. The term ‘approval’ characterises only the obligation that has been undertaken, ie to allow the deployment, but does not say how this ‘approval’ has been brought about, ie via a treaty or a unilateral act. If the latter is chosen, as the Constitutional Court said it was, the unilateral act used is a promise: the declaration promises that the deployment of, and the command over, foreign arms on German soil will be tolerated. Q  Military and Paramilitary Activities in and against Nicaragua Case Returning to the ICJ, the next case after the Nuclear Tests cases which allegedly involved a promise was the case concerning Military and Paramilitary Activities in and against Nicaragua, decided on the merits on 27 June 1986. The judgment contains a passage in which some assurances made by the (new) government of Nicaragua are more closely scrutinised, as the United States considered them to be ‘solemn commitments’ which had subsequently been breached. The relevant facts in this respect were established by the Court to have been as follows: On 23 June 1979, the Seventeenth Meeting of Consultation of Ministers of Foreign Affairs of the Organization of American States adopted by majority, over the negative vote of, inter alia, the representative of the then incumbent Somoza government of Nicaragua, a resolution on the subject of Nicaragua. After declaring that ‘the solution of the serious problem is exclusively within the jurisdiction of the people of Nicaragua’, the Meeting of Consultation declared: ‘That in the view of the Seventeenth Meeting of Consultation of Ministers of Foreign Affairs this solution should be arrived at on the basis of the following: 1. Immediate and definitive replacement of the Somoza regime. 2.  Installation in Nicaraguan territory of a democratic government, the composition of which should include the principal representative groups which oppose the Somoza regime and which reflects the free will of the people of Nicaragua. 230

  For the distinction see pp 34–36.

152  A History of Promises 3. Guarantee of the respect for human rights of all Nicaraguans without exception. 4. The holding of free elections as soon as possible, that will lead to the establishment of a truly democratic government that guarantees peace, freedom, and justice’. On 12 July 1979, the five members of the Nicaraguan ‘Junta of the Government of National Reconstruction’ sent from Costa Rica a telegram to the SecretaryGeneral of the Organization of American States, communicating the ‘Plan of the Government of National Reconstruction to Secure Peace’. The telegram explained that the plan had been developed on the basis of the Resolution of the Seventeenth Meeting of Consultation; in connection with that plan, the Junta members stated that they wished to ‘ratify’ (ratificar) some of the ‘goals that have inspired their government’. These included, first: ‘our firm intention to establish full observance of human rights in our country in accordance with the United Nations Universal Declaration of the Rights of Man (sic), and the Charter on Human Rights of the Organization of American States’; . . . A further goal was: ‘the plan to call the first free elections our country has known in this century, so that Nicaraguans can elect their representatives to the city councils and to a constituent assembly, and later elect the country’s highest authorities’. The Plan to Secure Peace provided for the Government of National Reconstruction, as soon as established, to decree a Fundamental Statute and an Organic Law, and implement the Program of the Government of National Reconstruction. Drafts of these texts were appended to the Plan: they were enacted into law on 20 July 1979 and 21 August 1979.231

The ICJ found the position of the United States on these events to be reflected, inter alia, in a report submitted to Congress by President Reagan, where it was stated that the United States was seeking the ‘implementation of Sandinista commitment to the Organization of American States (OAS) to political pluralism, human rights, free elections, non-alignment, and a mixed economy’.232 In a Congress resolution which the Court found also to express the view of the US President on the matter, the latter being constitutionally responsible for the country’s foreign policy, it was stated that Congress: supports the Nicaraguan democratic resistance in its efforts to peacefully resolve the Nicaraguan conflict and to achieve the fulfilment of the Government of Nicaragua’s solemn commitments to the Nicaraguan people, the United States, and the Organization of American States.233 231  ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Judgment of 27 June 1986, Merits, [1986] ICJ Rep 14, 89–90, para 167. 232   Ibid 90, para 168. 233   Ibid 92, para 171.

Military and Paramilitary Activities in and against Nicaragua Case 153 The resolution hence linked US support for the Contras to alleged breaches of what the United States referred to as Nicaragua’s ‘solemn commit­ments’. The Court therefore turned to the question whether the conduct of Nicaragua could be held to have legally warranted countermeasures by the United States. The US assertion of a commitment having been undertaken, according to the Court, first raised ‘the question of the possibility of a State binding itself by agreement in relation to a matter of domestic policy’, which was, however, not a real problem, as the ICJ ‘could not discover, within the range of subjects open to international agreement, any obstacle or provision to hinder a State from making a commitment of this kind’.234 As the reader will have noted, in this passage the Court solely contemplated a commitment ‘by agreement’ and made no reference to a commitment possibly assumed through a unilateral act. As will be seen, it has, however, subsequently referred also to this possibility. In now turning to whether Nicaragua had in fact entered into a legal commitment by communicating with and announcing its plan to the OAS, the ICJ found the following: However, the Court is unable to find anything in these documents, whether the resolution or the communication accompanied by the ‘Plan to secure peace’, from which it can be inferred that any legal undertaking was intended to exist.235

In explaining this conclusion, the Court elaborated that the part of the resolution which listed certain foundations on which the solution of the Nicaraguan domestic problems should be based included only recommendations to the future government, as it had also declared the solution of the matter to be ‘exclusively’ one for the Nicaraguan people. As such, this passage could not be understood as including any formal offer which, if accepted, would have become binding upon Nicaragua. In respect of the Nicaraguan pledge to hold free elections, the ICJ continued as follows: Nor can the Court take the view that Nicaragua actually undertook a commitment to organize free elections, and that this commitment was of a legal nature. The Nicaraguan Junta of National Reconstruction planned the holding of free elections as part of its political programme of government, following the recommendations of the XVIIth Meeting of Consultation of Foreign Ministers of the Organization of American States. This was an essentially political pledge, made not only to the Organization, but also to the people of Nicaragua, intended to be its beneficiaries. But the Court cannot find an instrument with legal force, whether unilateral or synallagmatic, whereby Nicaragua has committed itself in respect of the principle or methods of holding elections.236

The Court thereby ruled out the possibility of any form of legal commitment, be it unilateral or synallagmatic. In doing so, the judgment can 234 235 236

  Ibid 131, para 259.   Ibid 132, para 261.   Ibid 132, para 261, emphasis added.

154  A History of Promises be understood in respect of unilateral pledges as already moving towards the application of a more restrictive interpretation than the one applied in the Nuclear Tests cases. The Court is, however, in the above-cited section primarily concerned with the distinction between political and legally binding declarations, and seems to be concentrating less on whether the pledge made was unilateral or formed part of a bilateral under­taking. As the judgment found no legal intention whatsoever to have been included in the pledges, there was, of course, no need for any more detail in this respect. The ICJ has nevertheless, as seen, included a brief reference discarding the pledge as a unilateral legal act and has, in its subsequent ruling in the Frontier Dispute case (see below), expressly referred to the present finding in defining the standard of interpretation that is to be applied to unilateral declarations of states after the Nuclear Tests cases’ holdings. Judge Schwebel, in his dissenting opinion, disagreed with the Court’s position on this point. As opposed to the majority he considered Nicaragua to have, in fact, undertaken a legal obligation, which (although some passages are ambiguous) appears to have been brought about through an informal treaty. As Schwebel sees it, ‘essentially, in exchange for the OAS and its Members stripping the Somoza Government of its legitimacy and bestowing recognition upon the Junta as the Government of Nicaragua, the Junta extended specific pledges to the OAS and its Members, which it bound itself to “implement” ’. Judge Schwebel, however, considers it ‘obvious that the Junta did not, by its written undertakings to the OAS and its Members, conclude an international agreement in treaty form’. But, he continues, and by pointing to the Vienna Convention’s Article 3 as well as to the Legal Status of Eastern Greenland case (not, however, to the Nuclear Tests cases), argues that an international commitment binding upon a state need not be made in written, still less particularly formal, form. Instead: ‘The question is simply, did the authority of the State concerned give an assurance, or extend an undertaking, which, in the particular circumstances, is to be regarded as binding upon it?’. According to Schwebel ‘[w]hen a revolutionary government, soliciting recognition, has given assurances to foreign governments, such assurances have repeatedly been treated by foreign governments as binding the revolutionary government and its successors’. In contrast to the above-mentioned section, these passages sound more as if focusing on the pledge as giving rise to a unilateral commitment, and indeed the whole following paragraph speaks of the assurances which the Junta ‘ratified’, yet, apparently, only in order to establish the Junta’s intention to be legally bound by its declaration. In the end, for Judge Schwebel, the legal bond seems to have been brought about rather through an informal treaty than a unilateral pledge, when he writes: ‘The OAS offered recognition to the Junta on bases which the Junta accepted’. And while ‘[t]he OAS and its Members



Filleting of Fish in the Gulf of St Lawrence Arbitration 155

performed; the Government of Nicaragua did not. Not only was the creation of an international obligation clear; so was its breach’.237 Especially in contrast to this dissenting opinion, the ICJ’s majority judgment is hence of primary significance in highlighting the restrictive standard of interpretation which will be applied to a state’s declaration in ascertaining whether or not it can be taken to have manifested an intent to be bound. R  Filleting of Fish in the Gulf of St Lawrence Arbitration The dispute between Canada and France concerning filleting of fish in the Gulf of St Lawrence is next in the timeline in the adjudication on unilateral declarations. It was not brought before the ICJ but before an arbitration tribunal which, however, confirmed the apparently uncontested understanding that statements made by a state representative before a tribunal can, as such, become binding upon that state. Unlike in the case of Great Britain before the ECtHR, but much like the other cases mentioned above, the French representative did not emphasise his country’s intention to enter into a legal obligation when he repeatedly made references to the existence of quotas, which restricted the amount of fish that were caught by a filleting boat operating in the Gulf. The tribunal stated that in the course of the proceedings of 4 June 1986, he had gone so far as establishing that whether or not the filleting was done on board, the boats ‘will not capture a kilogram of codfish more than permitted by the quota’.238 The tribunal considered this statement as binding upon France in the following way: With regard to the circumstances in which it has been made, the Tribunal must consider such declaration as engaging France to use all means in its position to ensure, together with the Canadian authorities, that this declaration is respected.239

As the ICJ has done with declarations made before it, the tribunal has thereby imposed a very low threshold in order to establish an intention to be legally bound in declarations made within formal proceedings. 237   See ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, Dissenting Opinion of Judge Schwebel, [1986] ICJ Rep 259, 384–85, paras 247–48. 238  Arbitration Tribunal, Filleting of Fish in the Gulf of S. Lawrence Arbitration (1986) 265, original French wording: ‘ils ne captureront pas un kilogramme de morue de plus que le quota autorisé’. 239   Ibid 265: ‘Eu égard aux circonstances dans lesquelles elle a été faite, le Tribunal doit considérer pareille déclaration comme engageant la France à user de tous les moyens dont elle dispose pour veiller, conjointement avec les autorités canadiennes, au respect de cette déclaration’.

156  A History of Promises S  Frontier Dispute Between Burkina Faso and Mali Case Also in 1986, the ICJ rendered a judgment in the case concerning the Frontier Dispute Between Burkina Faso and Mali on 22 December 1986, where it again analysed an oral statement, this time a declaration made by Mali’s Head of State during a press interview.240 The relevant facts were as follows. The ongoing quarrel between Burkina Faso and Mali as to the precise delimitation of their border had finally led to a conciliation attempt by the Head of State of Somalia, then President of the Organization of African Unity (OAU), and the President of Senegal. At an international meeting between Burkina Faso (then named Upper Volta), Mali and Togo on 26 December at Lomé, the formation of a Mediation Commission composed of Togo, Niger, Guinea and Senegal was agreed upon. One of the Commission’s tasks was to ‘seek a solution to the frontier dispute on the basis of existing legal documents’, for which it subsequently installed a Legal Sub-Commission, entrusted with drawing up an ‘initial proposal’ on the matter. In an interview granted by Mali’s Head of State on 11 April 1975 to the France-Presse agency, he remarked that: Mali extends over 1,240,000 square kilometres, and we cannot justify fighting for a scrap of territory 150 kilometres long. Even if the Organization of African Unity decides objectively that the frontier passes through Bamako, my Government will comply with that decision.241

Shortly after the Legal Sub-Commission had presented its report to the Mediation Committee, the latter again gathered at Lomé, where a final communiqué was adopted, in which the Presidents of both countries, Mali and Burkina Faso, participated. In it, the two parties now agreed to install a ‘neutral technical committee’, to determine the exact location of certain villages in order to establish the frontier and ‘make proposals for its materialization to the Commission’. Roughly a month later, both states during a meeting at Conakry affirmed their ‘common intention to do the utmost to transcend’ the results achieved by the Mediation Commission of the OAS, ‘especially by facilitating the delimitation of the frontier between the two States in order to place the final seal on their reconciliation’.242 The work of the technical commission was, however, stalled when Mali refused to grant the Commission the authorisation for overflights over its territory, which were sought in order to make aerial photographs of the frontier zone. It was in this situation that the case was brought before the ICJ. 240   For the following account see ICJ, Frontier Dispute (Burkina Faso v Mali), Judgment of 22 December 1986, [1986] ICJ Rep 554,570–74, paras 34–40. 241   Ibid 571, para 36. 242   Ibid 572, para 37.



Frontier Dispute Between Burkina Faso and Mali Case 157

While both parties agreed that the Mediation Committee did not have the power to make binding decisions and had never actually completed its work, Burkina Faso, inter alia, alleged that the Report of the Legal Sub-Commission, as endorsed by the second summit meeting at Lomé, became binding for Mali on account of the above-cited statement, in which its Head of State was said to have proclaimed his country bound by the report subsequently adopted by the Mediation Commission. Mali rejected any such interpretation by explaining that the comment was merely ‘a witticism of the kind regularly uttered at press conferences’, which hence implied ‘no more than that Mali is anxious to consider the Commission’s recommendations with goodwill and in good faith’.243 Faced with these two different interpretations, the Court considered the legal value of the declaration to be as follows. First, it made it clear that the declaration was not part of an oral treaty but, if anything, was binding as a unilateral act upon Mali: The statement of Mali’s Head of State on 11 April 1975 was not made during negotiations or talks between the two Parties; at most, it took the form of a unilateral act by the Government of Mali.244

The ICJ continued by first of all confirming the potentially binding force of such unilateral declarations: Such declarations ‘concerning legal or factual situations’ may indeed ‘have the effect of creating legal obligations’ for the States on whose behalf they are made, as the Court observed in the Nuclear Tests cases. [reference omitted]

Still referring to the Nuclear Tests cases, the ICJ went on to emphasise that: it all depends on the intention of the State in question, and the Court emphasized that it is for the Court ‘to form its own view of the meaning and scope intended by the author of a unilateral declaration which may create a legal obligation’.245

By stressing that it is for the ICJ to conclude what a state intended at the time, the Court therefore again underscored that it was going to make an assessment based on the perception of an outside and (we may assume) reasonable addressee. But as already pointed out in discussing its Nuclear Tests cases judgments, it is largely the Court itself which, in this still quite uncharted territory, is in the process of establishing in which cases a legal commitment may reasonably be inferred from a unilateral declaration, and where a declaration will count as a mere political pledge. The ICJ first recalled its own holding in the above-mentioned Military and Paramiliatary 243 244 245

  Ibid 573, para 38.   Ibid 573, para 39.  Ibid.

158  A History of Promises Activities in and against Nicaragua case, in which no legal undertaking was found to exist in the communication transmitted by the Junta to the OAS. With this case in mind, the Court held: The Chamber considers that is has a duty to show even greater caution when it is a question of a unilateral declaration not directed to any particular recipient.246

This ‘very cautious’ approach to be taken where a unilateral declaration is not directed to a ‘particular recipient’ as announced by the Court, however, inevitably created tensions with its earlier holdings in the Nuclear Tests cases. Although the Court claimed it was following the latter in full, there the ICJ had opined that the French statements not directed to a particular recipient were binding erga omnes declarations. But really, if the rather loosely worded French statements were legal commitments, then why should not Mali’s statement according to which its ‘Government will comply with that decision’ also be regarded as binding? In order not to contradict itself, the Court seems to have had two choices: it could either openly consider its finding of a legal intent in the Nuclear Tests cases to have been inaccurate and not compatible with a truly restrictive inter­ pretation coupled with the very cautious approach necessitated when dealing with potential erga omnes statements, or it could try to distinguish the Nuclear Tests cases declarations and the scenario in which they were made from the statement now before it. As will be seen, the Court chose the latter approach, yet without being very convincing. It continued as follows: In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant States were not the only ones concerned at the possible continuance of atmospheric testing by the French Government, that Government’s unilateral declarations had ‘conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests’. [reference to the Nuclear Tests cases omitted] In the particular circumstances of those cases, the French Government could not express an intention to be bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct was lawful. The circumstances of the present case are radically different. Here, there was nothing to hinder the Parties from manifesting an intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity. Since no agreement of this kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret the declaration made by Mali’s Head of State on 11 April 1975 as a unilateral act with legal implications in regard to the present case.247 246 247

  Ibid 574, para 39.   Ibid 574, para 40.



Frontier Dispute Between Burkina Faso and Mali Case 159

The problem with this passage, intended to achieve a compatibility between the holdings in the Nuclear Tests cases and the decision to be made here, is twofold: while ambiguous in its last part, it is simply erroneous in the findings made at the beginning. To start with the beginning, it is not convincing when the Court stipulates that France could not have concluded a treaty with the applicants in the Nuclear Tests cases without thereby jeopardising its contention that its conduct was lawful. Of course, France could easily have done so, either by simply acceding to the Partial Test Ban Treaty248 which outlawed atmospheric tests and had been ratified by New Zealand in 1963 and Australia in 1964 (and, inter alia, also the United States, Great Britain and Russia), or by concluding a special agreement with the two applicants. The undertaking of a new obligation by France would not have had the slightest effect on the legality of its past conduct. In addition, if the ICJ was correct in its assessment – which it was not – the question has to be raised why the unilateral assumption of such a new obligation should not have run into exactly the same problem. The circumstances in the Frontier Dispute case before it were in this respect, therefore, far from being ‘radically different’ from those in the Nuclear Tests cases. This distinction, unconvincing as to the facts, now steered the Court towards its problematically worded conclusion, which, reduced to its core, reads as: ‘Since no agreement . . . was concluded between the Parties, . . . there are no grounds to interpret the declaration . . . as a unilateral act with legal implications.’ In other words: no agreement, no unilateral commitment; yet, of course, if an agreement had been concluded, there would have been no reason to interpret the subsequent declaration as an act with important legal implications. With this being so, the Court’s finding would be nothing other than a sweeping conclusion, which stipulates that where an agreement was not concluded although possible, subsequent statements will not be interpreted as binding unilateral commitments; the ICJ would thereby, in effect, have restricted the scope of unilateral undertakings to the very limited scenarios where treaties ‘cannot’ be concluded, whatever these may be.249 It is, however, highly doubtful whether the Court really wanted to proclaim such a far-reaching rule of interpretation and basically abolish the doctrine of unilaterally assumed undertakings between states. Not only had the ICJ just declared that unilateral declarations ‘may indeed’ have the effect the Court found them to have in the 248   See the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water’ (registration no A-6964) available at http://treaties.un.org. 249  For Alain Pellet, ‘Commentary to Art. 38 ICJ Statute’ in Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm (eds), The Statute of the International Court of Justice: A Commentary (Oxford, 2006) 677, 707, MN 93, the conclusion is indeed that ‘were this precedent to be followed, the potential impact of unilateral acts as a source to be applied by the Court would fade away’.

160  A History of Promises Nuclear Tests cases, but it had already moved towards the second step in its analysis, that of interpreting a particular state’s declaration. Here, it was faced with a press statement that was ambiguous as to whether a legal undertaking was intended. The question is thus whether the ICJ, in its above-cited ‘no treaty, no promise’ conclusion, rather than pronouncing a general standard of interpretation that would discard even the most clearly worded, formally and solemnly proclaimed pledge as a unilaterally assumed legal commitment, was not, in effect, only paying attention to the case’s special circumstances? To recall, the question the Court had to answer was whether the press interview statement that Mali’s ‘Government will comply with that decision’ was a legally binding commitment, or whether it had to be understood as a political pledge. One important circumstance of the case was (apparently) the fact that Mali had agreed to give the Mediation Commission only the power of recommendation but not to issue a legally binding decision. If it had wanted to do otherwise, then why had it not done so in a binding agreement when it had the chance? This, similarly to what had been said by the Court in the North Sea Continental Shelf cases,250 seems to be the point the Court was actually stressing when it said: Here, there was nothing to hinder the Parties from manifesting an intention to accept the binding character of the conclusions of the Organization of African Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity.

In other words: since Mali had not agreed to provide the Mediation Commission with the power to make legally binding decisions, its subsequent unilateral declaration could not be understood as having been intended now to do so. Especially in light of the very cautious approach now officially adopted by the Court, it is understandable to assume that the declaration to comply with the decision rendered by a Commission, which was not given the power to make legally binding decisions, is unlikely to have been intended as a de facto unilateral conferral of such legal powers to the Commission, absent a clear(er) and (more) precise statement in this respect. The subsequent ruling by the ICJ in the Armed Activities on the Territory of the Congo case (addressed below) has confirmed that it is a careful legal assessment which is used when the question is raised whether a unilateral declaration is legally binding, and not a brief analysis of the question as to why the parties refrained from concluding a treaty. What the ICJ has again made very clear by referring to the Military and Paramilitary Activities in and against Nicaragua judgment, and by in addition expressly underlining the necessity of using caution before finding a state to have made a 250

  See p 114.



Negative Security Assurances 161

binding (erga omnes) commitment, is that a restrictive reading has come to govern the interpretation of a state’s declaration in order to conclude that it has been made with the intention of becoming legally bound. T  Negative Security Assurances Before again returning to the ICJ and in keeping with the chronological order followed here, another interesting example of states employing unilateral pledges will be considered: the so-called ‘negative security assurances’. The latter have been sought especially by the non-aligned members of the Non-Proliferation Treaty (NPT) and have been in the centre of a lively debate, which has stretched over numerous decades. As such, the ‘circumstances’ in which the respective declarations were made are complex, and a detailed account would exceed the space available here. A brief description can, however, be provided, especially as the relevant facts have already been gathered by various authors and the territory is therefore fairly well charted.251 While states not in the possession of nuclear weapons, and especially those signing the NPT, have been eager to reach an agreement under which the nuclear weapon owning states guarantee not to threaten or use nuclear weapons against them, the official nuclear powers have not been willing to do so. Instead, they have ‘only’ gone so far as making unilateral declarations. A first ‘set’ of these so-called ‘negative security assurances’ (as opposed to also existing positive assurances in which certain action in the event of an attack is promised) were made during the Tenth Special Session of the UN General Assembly devoted to disarmament in 1978. Here, the Soviet Union, the United Kingdom and the United States made official statements and China ‘reiterated’ a declaration it had already made in 1964. France was only ‘prepared to give such assurances, in accordance with arrangements to be negotiated’ but eventually, in 1982, also followed suit.252 The declarations, however, were far from being uniform and were subject to different conditions. The UK representative, for example, stated that: 251  See especially Thomas Bernauer, Nuclear Issues on the Agenda of the Conference on Disarmament (New York, 1991); George Bunn, ‘The Legal Status of U.S. Negative Security Assurances to Non-Nuclear Weapon States’ (1997) 4(3) Nonproliferation Review 1; Allan Rosas: ‘Negative Security Assurances and Non-Use of Nuclear Weapons’ (1982) 25 GYIL 199; on the Soviet declaration of 1982 also Henri Meyrowitz, ‘Le débat sur le non-recours en premier aux armes nucléaires et la déclaration Soviétique du 15 Juin 1982’ (1982) XXVIII AFDI 147. 252   In 1982, France announced that ‘it will not use nuclear arms against a State that does not have them and that has pledged not to seek them, except if an act of aggression is carried out in association or alliance with a nuclear-weapon State against France or against a State with which France has a security commitment’, cited in Bernauer, Nuclear Issues, n 251 above, 7.

162  A History of Promises The United Kingdom is now ready formally to give such an assurance. I accordingly give the following assurance on behalf of my Government to non-nuclear weapon States which are parties to the Non-Proliferation Treaty or other internationally binding commitments not to manufacture or acquire nuclear explosive devices: Britain undertakes not to use nuclear weapons against such states except in the case of an attack on the United Kingdom, its dependent territories, its armed forces or its allies by such a State in association or alliance with a nuclear weapon State.253

The US declaration was similar254 and critics were quick to point out that the exception included therein, according to which an attack by a state which had a nuclear weapon state ally could lead to nuclear retaliation, was very broad and included scenarios in which a non-nuclear attack by a non-nuclear state was not supported, approved or even actually known to its nuclear ally. The declaration of the Soviet Union was different: From the rostrum of the UN special session our country declares that the Soviet Union will never use nuclear weapons against those States which renounce the production and acquisition of such weapons and do not have them on their territories.255

Yet, different as it was, the exceptions contained therein were felt to be again problematic, since the ‘non-deployment’ condition within this pledge would allow the Soviet Union to employ nuclear weapons against a state that had not itself used, nor even had control over, nuclear weapons stationed on its territory by one of its allies. In 1982, the Soviet Union further clarified its undertaking by adding that it had assumed ‘an obligation not to be the first to use nuclear weapons’.256 China, too, had in 1978 ‘reiterated that at no time and in no circumstances will it be the first to use nuclear weapons’.257 Still, the non-nuclear weapon states were not satisfied. As the Austrian Public International Law Department (Völkerrechtsbüro) stressed in an internal analysis, even these ‘no first use’ assurances were not a promise that a non-nuclear weapon state would 253   See Official Records of the General Assembly, Tenth Special Session, Plenary Meetings, 26th Meeting, para 12 as cited in Bernauer, Nuclear Issues, n 251 above, 9 and Hafner, ‘Österreichische diplomatische Praxis’, n 219 above, 301. 254   ‘The United States will not use nuclear weapons against any non-nuclear-weapon State party to the Treaty on the Non-Proliferation of Nuclear Weapons or any comparable internationally binding commitment not to acquire nuclear explosive devices, except in the case of an attack on the United States, its territories or armed forces, or its allies, by such a State allied to a nuclear-weapon State, or associated with a nuclear-weapon State in carrying out or sustaining the attack’, UN Doc A/S-10/AC.1/30, cited in Hafner, ‘Österreichische diplomatische Praxis’, n 219 above, 301. 255   Official Records of the General Assembly, Tenth Special Session, Plenary Meetings, 5th Meeting, paras 84 and 85, cited in Bernauer, Nuclear Issues, n 251 above, 9 and fully in Hafner, ‘Österreichische diplomatische Praxis’, n 219 above, 301. 256   See the citation in Bernauer, Nuclear Issues, n 251 above, 8. 257  Ibid.



Negative Security Assurances 163

never have to face nuclear weapons, as they would allow the respective nuclear power to use its weaponry in a multilateral conflict even against a non-nuclear weapon country, as long as another state had already made use of a weapon from within its nuclear arsenal.258 China in 1982 hence has to be considered as going a step further when it stated that it ‘undertakes unconditionally not to use or threaten to use nuclear weapons against non-nuclear countries and nuclear free zones’.259 The legal bindingness of all these declarations has been analysed by various scholars and was evidently of interest to the declarations’ addressees. Allan Rosas in his article concludes that the assurance by the United Kingdom and the United States ‘seems to be intended to be legally binding’260 especially as the declarants had stressed that the formal status of the assurances would not be enhanced by concluding a convention.261 While ‘authoritative comments’ showed that the Soviet Union had initially not intended to commit itself legally, its position is said to have changed by 1980.262 At least in 1982 this was apparently the case, as the country, as cited, proclaimed to have undertaken an ‘obligation’ not to be the first to use nuclear weapons. The already mentioned international law department within the Austrian Foreign Ministry, in its opinion published in 1980, drew the conclusion that the statements made by the United States, the United Kingdom and the Soviet Union in 1978 had to be considered as binding commitments.263 Another scholar, Thomas Bernauer, in his analysis of the debates held in various fora, including the UN General Assembly and the Conference on Disarmament, also identified the main weakness of the 1978–1982 declarations not in them being perceived as non-binding, but in the exceptions included therein, exceptions which, en plus, varied from declaration to declaration.264 With regards to their unilaterality, states are said to have clearly favoured a treaty and to have continued to push for it, as some of them felt that although legally binding, unilateral declarations could be amended and withdrawn more easily than a treaty could: a treaty would hence be ‘more binding’.265 While the Soviet Union is said to have been ready to conclude a treaty, the United States is said to have opposed it, as it would probably be impossible to find common language to cover the differing policies of the five (official) nuclear weapon countries.266 Western   Hafner, ‘Österreichische diplomatische Praxis’, n 219 above, 303.   A/S-12/11 as cited in Bernauer, Nuclear Issues, n 251 above, 7. 260   Rosas, ‘Negative Security Assurances’, n 251 above, 208. 261   Ibid, with further references. 262  Ibid. 263   Hafner, ‘Österreichische diplomatische Praxis’, n 219 above, 303. As the Chinese declaration of 1978 pointed to an earlier declaration, in the eyes of the department, it did not qualify as a unilaterally binding declaration; instead, the statement to which it made reference would have to be analysed, see ibid. 264  Bernauer, Nuclear Issues, n 251 above, 9 265   Ibid 10 and 19–20. 266   See Bunn, ‘U.S. Negative Security Assurances’, n 251 above, 6. 258 259

164  A History of Promises countries are reported as having accepted this premise, while emphasising that what they had received were ‘firm, credible and reliable commitments’.267 Continued efforts by the non-nuclear states in 1995, when the NPT was extended, led to new (in part merely reiterating) declarations made by each of the official nuclear powers. These were circulated as official documents of the UN General Assembly and the Security Council,268 which, in its unanimously adopted Resolution 984 (1995), took note with appreciation of the statements made.269 As France had indicated when submitting its declaration, the nuclear powers had sought to harmonise the content of the negative security assurances, with the result that the French, US, Russian and UK declarations were now practically identical. Yet each still included an exception which, however, was not as broadly worded as the original one, since now the attack itself (so it appeared) had to be carried out or sustained in association or alliance with a nuclear weapon state. The very similar declarations (as ‘reaffirmed’ by the United States and ‘reaffirmed’ and ‘clarified’ by France) read as follows (here the Russian one): Russian Federation will not use nuclear weapons against non-nuclear-weapon States parties to the Treaty on the Non-Proliferation of Nuclear Weapons, except in the case of an invasion or any other attack on the Russian Federation, its territory, its armed forces or other troops, its allies or on a State towards which it has a security commitment, carried out or sustained by such a non-nuclear-weapon State in association or alliance with a nuclear-weapon State.270

China remained true to its already assumed broader obligation when it not only again stated that it ‘undertakes not to be the first to use nuclear weapons at any time or under any circumstances’, but in addition: China undertakes not to use or threaten to use nuclear weapons against nonnuclear-weapon States or nuclear-weapon-free zones at any time or under any circumstances. This commitment naturally applies to non-nuclear weapon States parties to the Treaty on the Non-Proliferation of Nuclear Weapons or non-nuclear weapon States that have entered into any comparable internationally binding commitment not to manufacture or acquire nuclear explosive devices.271

The wording within the Chinese declaration is the clearest and most precise. China ‘undertakes’ what it has proclaimed not to do and speaks 267 268

155.

  See CD/1039, 328 as cited in Bernauer, Nuclear Issues, n 251 above, 20.   See S/1995/261, S/1995/262, S/1995/263, S/1995/264 and S/1995/265 and A/50/151-

269   See S/RES/984 (1995). On the resolution’s positive elements and drawbacks see Nabil Elaraby, ‘Some Reflections on Disarmament’ in Christian Tomuschat (ed), The United Nations at Age Fifty: A Legal Perspective (The Hague, 1995) 19–20. 270   S/1995/261, 3, Annex II. 271   S/1995/265, 2, para 2.



Negative Security Assurances 165

of a ‘commitment’ in this respect, to be adhered to ‘at any time’ and ‘under any circumstances’. The other declarations do not go as far, although they also include a firm ‘will not use’ in their wording. The long-lasting debates over the declarations’ precise wording, along with their very formal proclamation to the General Assembly and the Security Council, would also indicate that they may be relied upon as legal undertakings. The crucial question, of course, is which standard of interpretation is to be applied to declarations, which fall short of expressing outright that a state is ‘hereby assuming a legal obligation’. Clearly, under the Nuclear Tests cases standard, the repeatedly made, clearly worded and formally proclaimed declarations would qualify as legal undertakings. Even under the standard in the Military and Paramilitary Activities in and against Nicaragua or the Frontier Dispute cases, where a more restrictive approach has been used, this is likely to be the case. Especially with regard to the Chinese declaration, one would be hard-pressed to find a declaration which has more precise and clear wording, unless of course an official announcement to ‘undertake a legal obligation’ is considered necessary. The ICJ has, however, never required this, neither in the Nuclear Tests cases, where it found a legal obligation to have arisen from the French assurances, nor in any of the other cases in order to reject the bindingness of a statement before it. Indeed, the ICJ in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons seems to have placed the declarations, which it analysed in its opinion alongside the respective treaties, on the same footing as other law and treaty obligations applicable in these scenarios: A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons.272

The ICJ had previously addressed the negative security assurances and they are very clearly included as ‘other undertakings’ in this quotation.273 But, of course, the argument that the ICJ apparently concluded that the declarations were legally binding commitments274 is crucially weakened by its use of the wording ‘should be compatible’, which should then rather read ‘must be compatible’. Similarly, a statement made by the recipients of the 1995 declarations at the Conference of the Parties to the Non-Proliferation Treaty is support for the fact that at least they did not perceive the statements of 1995 to be made as legally binding commitments. Decision 2, paragraph 8 as adopted reads: 272  ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep 266, para 105(2)(D), unanimously adopted, emphasis added. 273   Ibid 251–53, see especially para 63. 274   For this interpretation see Bunn, ‘U.S. Negative Security Assurances’, n 251 above, 9.

166  A History of Promises Noting United Nations Security Council Resolution 984 (1995), which was adopted unanimously on 11 April 1995, as well as the declarations of the nuclear-weapon States concerning both negative and positive security assurances, further steps should be considered to assure non-nuclear-weapon States party to the Treaty against the use or threat of use of nuclear weapons. These steps could take the form of an internationally legally binding instrument.275

Indeed, according to Cedeño, ‘the attitude of the authors and the positions of most States appear to reflect the political nature of these statements’.276 Particularly if the ICJ’s decisions in the Nuclear Tests cases is to be followed, this perception would, however, not hinder an international court from drawing the conclusion that the assurances received, on account of their being clear and specific commitments formally made, are already included in an ‘internationally binding legal instrument’, namely that of a promise in international law. Although at present the precise status of these declarations is thus subject to some debate, under the ICJ’s jurisprudence, good reasons speak for interpreting them as binding commitments. Most recently, in its Nuclear Posture Review Report of April 2010, the United States under the Obama administration has chosen to further refine its assurance by including the following passage: To that end, the United States is now prepared to strengthen its long-standing ‘negative security assurance’ by declaring that the United States will not use or threaten to use nuclear weapons against non-nuclear weapons states that are party to the Nuclear Non-Proliferation Treaty (NPT) and in compliance with their nuclear non-proliferation obligations.277

U  LaGrand Case Returning to the ICJ, and now in 2001, Germany in the LaGrand case against the United States in its fourth submission asked the Court to: adjudge and declare that the United States shall provide Germany an assurance that it will not repeat its unlawful acts and that, in any future cases of detention or of criminal proceedings against German nationals, the United States will ensure in law and practice the effective exercise of the rights under Article 36 of the Convention on Consular Relations. In particular in cases involving the death penalty, this requires the United States to provide effective review of and remedies for criminal convictions impaired by a violation of the rights under Article 36.278 275  NPT/Conf.1995/32 (Part I), Annex, Decision 2, para 8, available at www.un.org/ Depts/ddar/nptconf/2142.htm, emphasis added. 276  Victor Rodriguez Cedeño, Eighth Report on Unilateral Acts of States, A/CN.4/557 (2005) 21, para 115. 277   United States Department of Defense, Nuclear Posture Review Report (April 2010) 15, 17, available at www.defense.gov/npr/docs/2010 Nuclear Posture Review Report.pdf. 278   See ICJ, LaGrand (Germany v United States), Merits, Judgment of 27 June 2001, [2001] ICJ Rep 466, 508–9, para 117, emphasis added.



LaGrand Case 167

As Germany had explained in its memorial, what it was seeking were ‘assurances and guarantees of non-repetition’279 to be provided by the United States in order to prevent future breaches of the Vienna Consular Convention. It is the assurances that Germany was asking for which are of primary interest here, rather than the guarantees that were requested to be imposed on the United States by the Court. As Simma, agent for Germany at the time, explained in the oral hearings before the Court: while assurances are normally given verbally, guarantees of non-repetition go beyond that and involve certain preventive actions to be taken by the responsible State and specifically designed to avoid repetition.280

The term ‘guarantee’, used in relation to concrete action and not ‘mere words’,281 led to some debate between the parties, and was later dropped in the fourth submission which, as quoted above, no longer made use of that term. In substance, however, the application continued to include a request for the imposition of certain measures, ie guarantees other than verbal assurances, especially in its second part. As to the assurances sought, Germany requested ‘formal assurances’ from the United States: The German request for ‘formal’ assurances is appropriate in the present Case if only because it will be decided by the International Court of Justice after a formal procedure. In addition, since all informal requests of Germany, and even the formal Order of the Court on Provisional Measures were ignored by the United States, Germany cannot be content any longer with mere informal assurances on the part of the United States.282

The United States responded by stressing in particular that for the ICJ to follow this submission would, in the eyes of the United States, mean that it was imposing a new obligation on it: ‘An assurance or guarantee requires the creation of a new obligation with independent legal significance’.283 Hence, ‘the Court should reject Germany’s invitation to confer upon Germany new or additional rights beyond those existing under the Consular Convention’.284 The ICJ responded in its judgment to Germany’s fourth submission by cutting it into two sections, because, so it concluded, only the first part 279  See LaGrand, ibid, Memorial of the Federal Republic of Germany, 16 September 1990, para 6.60 et seq, available at www.icj-cij.org/docket/files/104/8552.pdf. 280   LaGrand, ibid, Verbatim Record of the Oral Hearing held on 13 November 2000 at 3 pm, 34, para 25, available at www.icj-cij.org/docket/files/104/4653.pdf, emphasis added. 281   Germany said it was following the distinction which is to be found in Art 30 of the ILC Articles on State Responsibility, see LaGrand, ibid, Verbatim Record of the Oral Hearing held on 16 November 2000 at 10 am, 36, para 11, available at www.icj-cij.org/docket/ files/104/4667.pdf. 282   LaGrand, ibid, Memorial of the Federal Republic of Germany, 16 September 1990, para 6.70, as cited at n 279 above. 283   LaGrand, ibid, Verbatim Record of the Oral Hearing held on 14 November 2000 at 3 pm, para 5.24, available at www.icj-cij.org/docket/files/104/4663.pdf. 284   Ibid para 5.25.

168  A History of Promises of its first sentence could be understood as seeking a ‘straight­forward assurance’,285 ie the part which read: ‘the United States shall provide Germany an assurance that it will not repeat its unlawful acts’. With respect to this request, the Court first noted the various efforts undertaken by the United States, all of which were insufficient in the eyes of Germany. It went on to note that the United States had acknowledged the fact that it had not complied with its obligations under the Convention and had presented an apology. While an apology was insufficient for the Court, it took note of the fact that the United States had ‘repeatedly and in all phases’ made reference to a ‘vast and detailed programme’ established in order to ensure compliance with its obligations under the Convention. This led the ICJ to pronounce the following: The United States has provided the Court with information, which it considers important, on its programme. If a State, in proceedings before this Court, repeatedly refers to substantial activities which it is carrying out in order to achieve compliance with certain obligations under a treaty, then this expresses a commitment to follow through with the efforts in this regard . . . The Court considers that the commitment expressed by the United States to ensure implementation of the specific measures adopted in performance of its obligations under Article 36 paragraph 1(b) [of the Vienna Consular Convention] must be regarded as meeting Germany’s request for a general assurance of non-repetition.286

With respect to the other ‘assurances’ (really still guarantees under the terminology above) sought by Germany, the Court saw no need to impose any further obligation on the United States, as there was no special muni­ cipal law that was inconsistent with the Convention and the latter, as such, already compelled the United States to allow the review and reconsideration of a conviction, where the Convention had not been followed. The Court consequently limited itself to the above finding. This was included in the operative part of the judgment, where the Court: Unanimously, [t]akes note of the commitment undertaken by the United States of America to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1(b), of the Convention; and finds that this commitment must be regarded as meeting the Federal Republic of Germany’s request for a general assurance of non-repetition.287

The ICJ, therefore, rather than choosing to hold the United States obliged to make a formal assurance of non-repetition, found the United States to have, by its own repeated referrals to its substantial activities, expressed such a commitment. That this commitment is an additional legal undertaking is not made absolutely clear. But the interpretation that it must be so, is the only one in line with the Court’s finding that it met the 285 286 287

  See ICJ, LaGrand, Merits, Judgment (2001), n 278 above, 511, para 120.   Ibid 512–13, para 124.   See ibid 516, operational para (6).



Armed Activities on the Territory of the Congo Case 169

German request for a formal and reliable assurance, as opposed to a mere informal pledge, followed only by an apology if breached. As seen, the United States had expressly stated its understanding that the requested assurance, which was now found to have been replaced by the commitment undertaken, would give rise to a new obligation. By deducing a unilateral legal undertaking from the repeated statements made during the proceedings, the ICJ has thereby again applied its rather ‘non-restrictive’ approach to declarations made before it. It should, however, be noted that the Court, while apparently finding a legal commitment to exist for the United States, only found it to be obliged to follow through with specific measures which it had claimed it had already adopted – and nothing more. V  Armed Activities on the Territory of the Congo Case That the finding of a legal commitment is indeed subject to a more restrictive approach when declarations are made outside the courtroom has already been shown by the ICJ in Armed Activities in and against Nicaragua and especially in the Frontier Dispute case. In its ruling on the case concerning Armed Activities on the Territory of the Congo, the Court has confirmed this while shedding more light on how the legal bindingness of a declaration will be assessed. The Democratic Republic of the Congo (DRC) had instituted proceedings against the Republic of Rwanda in respect of a dispute that it claimed to include ‘massive, serious and flagrant violations of human rights and of international humanitarian law’. In order to establish the jurisdiction of the Court, the DRC relied in particular on Article 36(1) of the ICJ Statute288 in conjunction with various treaty provisions, amongst them Article IX of the Genocide Convention.289 The problem with this provision as opening the avenue to the Court was that although Rwanda was a party to the Convention, it had included a reservation within its instrument of accession, according to which it ‘did not consider itself bound’ by said Article IX. The DRC tried to overcome this obstacle by pointing to a Décret-loi adopted by Rwanda, its first article announcing ‘all reservations entered by the Rwandese Republic in respect of the accession, approval and ratification of international instruments are withdrawn’. In addition, the DRC 288   ICJ Statute, Art 36(1) reads: ‘The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force’. 289  Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide provides that ‘Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute’.

170  A History of Promises cited a statement made by the Rwandese Minister of Justice which corroborated her country’s withdrawal of the above reservation as constituting ‘a unilateral commitment having legal effects in regard to the withdrawal of that reservation’.290 In its ruling, the Court first dismissed the alleged international effect of the Rwandese Décret-loi as amounting to a withdrawal of the abovecited reservation. A withdrawal of the reservation would have to have been notified at the international level, which Rwanda, despite passing its municipal Décret-loi, had not done. The Court then turned to the effect of the unilateral statement made by Ms Mukabagwiza, the Rwandan Minister of Justice at the time, on 17 March 2005 before the 61st Session of the United Nations Commission on Human Rights: Rwanda is one of the countries that has ratified the greatest number of international human rights instruments. In 2004 alone, our Government ratified ten of them, including those concerning the rights of woman, the prevention and repression of corruption, the prohibition of weapons of mass destruction, and the environment. The few instruments not yet ratified will shortly be ratified and past reservations not yet withdrawn will shortly be withdrawn.291

The Court, in its analysis, began by assessing the defence advanced by Rwanda that Ms Mukabagwiza, on account of her position as a ‘mere’ Minister of Justice, could not have bound her state to lift a particular reservation. As a starting point, the ICJ established that the General Rule included for the law of treaties in Article 7 of the Vienna Convention on the Law of Treaties was equally applicable to a unilaterally assumed obligation: In this connection the Court observes that, in accordance with its consistent jurisprudence [references to numerous cases, beginning with the Nuclear Tests cases and including the Legal Status of Eastern Greenland case, as well as others not expressly relating to unilateral acts but to the competence of the acting authority, omitted] it is a well established rule of international law that the Head of State, the Head of Government and the Minister of Foreign Affaires are deemed to represent the State merely by virtue of exercising their functions, including the performance, on behalf of said State, of unilateral acts having the force of international commitments.292

The Court then noted that: with increasing frequency in modern international relations other persons representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matters falling within their purview. This may be true, for example, of holders of technical ministerial portfolios exercis290   See ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda), New Application 2002, Jurisdiction and Admissibility, Judgment of 3 February 2006, 26, para 45. 291   Ibid 27, para 45, emphasis added. 292   Ibid para 46.



Armed Activities on the Territory of the Congo Case 171 ing powers in their field of competence in the area of foreign relations, and even of certain officials.293

Taking these considerations into account, the ICJ noted that the statement by Ms Mukabagwiza had been made while she was speaking in her official capacity before the United Nations. Also, she had indicated that she was making her statement, as the Court quoted, ‘on behalf of the Rwandan people’.294 Since the area of human rights fell within the purview of her position, the Court concluded that ‘the possibility cannot be ruled out in principle that a Minister of Justice may, under certain circumstances, bind the State he or she represents by his or her statements’.295 The ICJ then, with reference to the Nuclear Tests cases and the Frontier Dispute case, confirmed that in ascertaining whether a declaration was binding, ‘its actual content as well as the circumstances in which it was made’296 had to be examined. It further recalled ‘that a statement of this kind can create legal obligations only if it is made in clear and specific terms’.297 Applying these principles, the Court noted that the declaration now before it was ‘indeterminate’ in that it had to be understood as referring to ‘international instruments’ in a broad sense, and not to a particular treaty or reservation or at least merely to human rights treaties, as the preceding sentence included a reference not only to human rights but also to the environment. The Court also observed that by indicating ‘past reservations . . . will shortly be withdrawn’, Rwanda had not precisely specified when the withdrawal was to take place. For the ICJ: It follows from the foregoing that the statement by the Rwandan Minister of Justice was not made in sufficiently specific terms in relation to the particular question of the withdrawal of reservations. Given the general nature of its wording, the statement therefore cannot be considered as confirmation by Rwanda of a previous decision to withdraw its reservation to Article IX of the Genocide Convention, or as any sort of unilateral commitment on its part having legal effects in regard to such withdrawal; at most, it can be interpreted as a declaration of intent, very general in scope.298

After analysing the declaration’s wording as not being sufficiently specific, the Court addressed the circumstances of its making, which it said corroborated its finding, as the context was that of ‘a presentation of general policy on the promotion and protection of human rights’.299   Ibid para 47.   Ibid 28, para 48.  Ibid. 296   Ibid para 49. 297   Ibid para 50. 298   Ibid 29, para 52. 299   Ibid para 53. 293 294 295

172  A History of Promises By carefully scrutinising the declaration in this way, the Court has made it slightly more transparent as to how the bindingness of a declaration will be assessed. As seen, the starting point in the legal assessment was the declaration’s wording, analysed in terms of it having to be both clear and specific. Although the ICJ did not again expressly stress this aspect, it remained true to the restrictive interpretation and the ‘cautious approach’ applicable to potential erga omnes declarations in deciding that the declaration now before it did not live up to the ‘clear and specific’ standard. The statement ‘past reservations not yet withdrawn will shortly be withdrawn’, is, after all, not really that unclear, even though it leaves room for the Court to interpret (while not making it impossible for the Court to specify) what is reasonably to be understood by ‘shortly’. Similarly, that ‘past reservations’ might relate to ‘all reservations’ does not necessarily indicate that the statement is ‘indeterminate’ or unspecific, as it may have meant precisely that, ie that all reservations will be withdrawn. Maybe it did, but it is here where the ICJ’s restrictive approach kicks in, which leads it to negate a ‘broad promise’ and to instead opt for, ‘at most’, a ‘general declaration of intent’. In addition and although the statement’s direct context, a ‘presentation of general policy’, is only cited as the circumstance which further supported the Court’s finding, the ICJ is likely to have already been influenced by the general character of the remarks surrounding the particular statement before it, when it identified the latter’s indeterminate character. W  Questions Relating to the Obligation to Prosecute or Extradite Case In the case concerning Questions Relating to the Obligation to Prosecute or Extradite, Belgium brought a claim against Senegal before the ICJ. Belgium alleged that Senegal was violating its obligations under the Convention Against Torture by refraining from either prosecuting or extraditing Hissène Habré, the former President of Chad. The latter was held under house arrest in Dakar by Senegalese authorities, while being sought by Belgium in order to face charges in particular for torture and crimes against humanity. On 19 February 2009, Belgium submitted a request for the indication of provisional measures to the Court. In it, Belgium argued that it was facing a risk of irreparable prejudice to the rights asserted in its claim, as the President of Senegal, in an interview given to Radio France on 2 February 2009, had indicated the possibility that his country might lift the house arrest of Habré, should Senegal fail to raise the budget necessary to hold his trial. As a release, in the eyes of Belgium, might allow Habré to evade prosecution altogether, and would make it impossible for Senegal to comply with its obligations under the Convention Against Torture, it asked the Court:

Questions Relating to the Obligation to Prosecute or Extradite Case 173 to indicate . . . provisional measures requiring Senegal to take all the steps within its power to keep Mr H Habré under the control and surveillance of the judicial authorities of Senegal.300

In the oral proceedings, Senegal, however, emphasised that it had no intention of letting Mr Habré go and instead intended to keep him under surveillance. In response to a question by a member of the Court during the hearings, Belgium: indicated that a solemn declaration made before the Court by the Agent of Senegal, in the name of its Government, could be sufficient for Belgium to consider that its Request for the indication of provisional measures had no further raison d’être, provided that such a declaration would be clear and unconditional, and that it would guarantee that all the necessary measures would be taken by Senegal to ensure that Mr Habré did not leave Senegalese territory before the Court delivered its final Judgment.301

Belgium ‘expressed the wish’ that the Court should place such a declaration in the operative paragraph of its order. The Co-Agent of Senegal answered a question by the Court in this regard by making the following declaration at the end of the hearings: Senegal will not allow Mr Habré to leave Senegal while the present case is pending before the Court. Senegal has no intention to allow Mr Habré to leave the territory while the present case is pending before the Court.302

The Court ‘noted’ that Senegal had given ‘a formal assurance’, both proprio motu and in response to a question put by a member of the Court on several occasions during the hearing, and ‘taking note of the assurances given by Senegal, finds that, the risk of irreparable prejudice to the rights claimed by Belgium is not apparent at the date of this Order’.303 In light of the circumstances in which the declaration was made, ie in order to bring the interim proceedings to an end, and provide Belgium with an ‘equivalent’ to a binding interim order by the ICJ,304 there can be little doubt that the solemn, clear and unconditional declaration that Senegal would not allow Habré to leave the country while the case was before the Court, was binding upon it as (in the words of the ICJ) a ‘formal assurance’, ie a promise under international law.

300  ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Order of 28 May 2009, para 15. 301   Ibid para 33. 302   Ibid para 68. 303   Ibid para 72. 304   On the bindingness of such orders see ICJ, LaGrand, Merits, Judgment (2001), n 278 above, 501–06, paras 98–109.

174  A History of Promises II  CONCLUDING REMARKS ON THE HISTORY OF PROMISES

The History of Promises has shown a slow evolution, which was primarily driven by the decisions of international courts and has led to the establishment of a new mechanism for states to create a legally binding commitment for themselves in the form of unilateral assurances, commonly dubbed ‘promises’ under international law. What began with findings that unilateral pledges made during court proceedings, despite their not resulting in the conclusion of a treaty, could be relied on as legally binding commitments, was followed by a phase in which the unilateral or bilateral character of an ‘in any event binding’ declaration was either declared irrelevant or left open, in holding that a legal commitment had been brought about, despite the fact that the unilateral or at least nontreaty character of the declarations had been raised by those involved. The resulting debate within legal doctrine on the bindingness of unilateral assurances was ventilated by state practice, such as the Allied consensus that the breach not only of treaties and agreements prohibiting war, but in addition that of German assurances not to attack was to be punishable as a crime against peace, or the Austrian declaration of neutrality, and finally, and most clearly, the Egyptian declaration on the Suez Canal. The question as to the precise value of such statements and the legal rules governing their execution was by now clearly posed and finally answered by the Nuclear Tests cases, in the manner above depicted. The rather special circumstances in which the ICJ decided on the two applications before it has not hindered the judgment from leaving its clear mark on subsequent state practice, as following examples in this chapter have shown, and the Court has further strengthened its holding by confirming its principal doctrinal footing that states may oblige themselves by unilateral assurances. Two subsequent cases, Frontier Dispute but especially Armed Activities on the Territory of the Congo, have shed more light on the restrictive interpretative standard that the Court currently applies to declarations made by state representatives outside judicial proceedings. This development in international jurisprudence and its impact on state practice are by now reflected in the writings of numerous scholars who have identified promises as capable of committing states in their legal affairs.305 The most recent joint effort in this area was that of the ILC, whose finally adopted Guiding Principles have been restricted to unilateral declarations capable of creating legal obligations for the declaring state, which as the Commentary shows, is based mainly on the ICJ’s decisions in the Nuclear Tests cases as supported, illustrated and interpreted in its subsequent holdings in the Military and Paramilitary Activities in and 305

  See Introduction, nn 49 and 50.

Questions Relating to the Obligation to Prosecute or Extradite Case 175 against Nicaragua and Frontier Dispute cases, as well as the Armed Activities on the Territory of the Congo case. That the existence of promises understood as a unilateral and legally binding commitment of a state to act or refrain from acting in a certain manner in the future has by now become an accepted reality, however, does not mean that the rules pertaining thereto are clear. The question of which legal norms are applicable to such statements is the subject matter which will be addressed in the next chapter.

3 The Law on Promises

A

S THE FOREGOING chapter revealed, the ICJ has by now had the opportunity to express its view on various important aspects pertaining to the legal framework operable for state promises, ranging from the lack of formal requirements, the ‘good faith’ principle as providing the basis of their binding force, to the question which authorities can commit their state by making unilateral assurances. The subject, nevertheless, remains fraught with some considerable uncertainties, as becomes apparent when turning to the work conducted by the International Law Commission in this area, and especially the published results, as the latter almost exclusively reflect the ICJ’s dicta. But before going into more detail in respect of the legal framework, a question which also raises some methodological concerns needs to be addressed. It has to be asked how the law on promises may be described and illuminated in light of the fact that the existence of promises has never been established on the basis of any of the (primary) sources of international law, as reflected by Article 38 of the ICJ Statute. I  PROMISES AND THE SOURCES OF INTERNATIONAL LAW

Article 38 of the ICJ Statute, known to every public international lawyer, determines what sources the ICJ is to apply in cases brought before it and, as such, is widely perceived as reflecting the sources of international law.1 The wording of its first paragraph will be recalled to read as follows: Article 38(1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: 1  See especially Michel Virally, ‘The Sources of International Law’ in Max Sørensen (ed), Manual of Public International Law (New York/London, 1968) 116, 121; Alain Pellet, ‘Commentary to Art. 38 ICJ Statute’ in Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm (eds), The Statute of the International Court of Justice: A Commentary (Oxford, 2006) 677, 735, MN 171 et seq. Also Ian Brownlie, Principles of Public International Law, 7th edn (Oxford/New York, 2008) 5; Malcolm N Shaw, International Law, 6th edn (Cambridge/New York, 2008) 71.



Promises and the Sources of International Law  177 (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Neither unilateral acts in general nor promises in particular are mentioned by this provision, which is problematic, since subsuming promises under the sources of law listed is difficult at best. Indeed, it seems, instead, rather clear that the direct explanation for the binding force of promises cannot be found within one of the three classical categories of sources, ie treaties, custom or general principles of law. To begin with, promises are usually not, and in no way need to be, based on a treaty provision in order to have their binding effect. Attempting to ground promises on a customary rule is equally problematic, because, as the depiction of state practice has shown, it would be something of a far-reaching leap to assume the existence of a general state practice carried by an opinio juris interpreting unilateral assurances as binding upon the state having made them, at least up and until the PCIJ and especially the ICJ began attributing binding force to such unilateral acts as legal undertakings. It is ‘court practice’ that has had the decisive shaping legal effect in this area, rather than that of states. Yet, especially after the ICJ’s landmark decision in the Nuclear Tests cases, and on the basis of its continued jurisprudence in this area, the picture might of course change, and chapter two portrayed some state declarations made or interpreted in direct reference to the Nuclear Tests cases doctrine. While states therefore appear to follow the ICJ in its finding that states may assume obligations by making unilateral promises,2 and promises might eventually come to be firmly grounded on a general state practice, supported and spawned in 2   Apart from the cases mentioned, the questionnaire circulated by the ILC on the position of states in respect of unilateral declarations provides an additional, yet quite limited, insight into the position of states in this repect, see ILC, Replies from Governments to the Questionnaire, Report of the Secretary-General, UN Doc A/CN.4/511 (2000). The questionnaire was drafted very broadly and included relatively abstract questions on the legal framework applicable to all unilateral acts. As such, it is hardly surpising that the response it triggered was quite meagre. Of the 12 states that responded, 11 provided an answer to the questions posed (as Luxembourg, while responding, considered that an evaluation could not be done in the abstract, and not all unilateral acts could be subjected to the same legal regime). Not one of the states which answered rejected the doctrine of promises in inter­ national law, while seven (Germany, Italy, the Netherlands, Sweden, Great Britain, Argentina, El Salvadore) expressly referred to promises as a unilateral act of state within their answers. Of the remaining four, three (Austria, Finland and Israel) in answering the questions posed at some point used the Nuclear Tests cases jurisprudence in explaining the legal effects a unilateral act might have, thereby showing that they were relying on the judgment’s findings in this respect. Brownlie’s observation that ‘States did currently rely on the Nuclear Tests cases’ (see the full citation as provided in ch two, text to n 153) therefore appears to be correct.

178  The Law on Promises part by the Court’s jurisprudence, this status has apparently not yet been fully reached. It is furthermore still the Court’s jurisprudence, and not the practice of states, which has provided and continues to provide answers as to the precise rules (eg form, revocability, legal bindingness etc) applicable in this area.3 Just as a customary international law backing therefore cannot be found or used in delimiting the law in this field, general principles of law derived from municipal systems are of no avail as support, as a comparable unilaterally obliging mechanism is scarcely present in national legal systems.4 The ICJ has, however, traced the binding effect of promises back to ‘good faith’ and thereby to a general principle of international law, quite possibly even the ‘most important’ one.5 As will be recalled, according to the Court: One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith . . . Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration.6

In terms of sources doctrine and in keeping with the position adopted by the Court itself, ‘good faith’, while being a general principle of international law, does not, however, provide us with a satisfying answer. As the ICJ quotation already indicates, when it says ‘one of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith’, the latter is considered to be more of a ‘background principle’7 which does not by itself and directly give rise to legal obligations proper. In a different ruling the ICJ, explicitly referring to its Nuclear Tests cases judgments and the above-cited passage, has made this point very clear: The principle of good faith is, as the Court has observed, ‘one of the basic principles governing the creation and performance of legal obligations’ [reference 3   For recognition, protest and (arguably also) waiver the situation is different, as here, there is a customary international law footing. This fact is overlooked when ‘unilateral acts’ are criticised as not being reflected amongst the sources of international law, because those which are firmly based on custom do not need to be additionally listed as a source of law. See also Wolf Heintschel von Heinegg, ‘Einseitige Rechtsakte’ in Knut Ipsen (ed), Völkerrecht, 5th edn (München, 2004) 234, 235. 4   See also ch two, n 5. 5  Shaw, International Law, n 1 above 103–04; on good faith and its importance as a general principle of (international) law, see also M Lachs, ‘Some Thoughts on the Role of Good Faith in International Law’ in Declarations on Principles, Liber amicorum diciplorumque (1977) 47–55; Lasa Oppenheim, Robert Jennings and Arthur Watts, Oppenheim’s International Law, 9th edn (Harlow, 1992) vol 1, 32; Brownlie, Principles, n 1 above, 19. For more detail see Robert Kolb, La bonne foi en droit international public. Contribution à l’étude des principes généraux de droit (Paris, 2000) especially 3 et seq and 154 et seq. 6  ICJ, Nuclear Tests (Australia v France), Judgment of 20 December 1974, [1974] ICJ Rep 253, 268, para 46. 7  Shaw, International Law, n 1 above, 104.



Promises and the Sources of International Law  179 to the Nuclear Tests cases omitted]; it is not in itself a source of obligation where none would otherwise exist.8

If that is so, promises have no legal footing within any of the three principle sources listed in the Court’s provision, as neither treaties, custom nor general principles of (international) law can directly explain their binding force or the precise legal regime applicable in this area. As has been seen, the ICJ (and arguably also its predecessor, the PCIJ, for which a practically identical provision existed in its statute)9 has nevertheless assumed a legally binding force for promises. In terms of sources doctrine the Court has, however, offered little explanation, simply considering the binding force of unilateral declarations to be ‘well recognised’.10 The question is thus whether promises are therefore clearly ‘absent’ from the list provided in Article 38 and, if so, what the consequences of such a lacuna might be. Surprisingly, scholars provide two different responses to the first half of this question, ie whether promises are missing from the listed sources of international law. The first is that while states might bind themselves via promises, promises are nevertheless not a source of international law, they are instead said to be only a source of international obligations. In following this approach, which can be found in various publications addressing the topic11 and which was also advocated within the ILC (especially, though not exclusively, by the Special Rapporteur),12 a distinction is revived which had originally surfaced in the wake of an article published by Fitzmaurice in 1958. Not referring to unilateral acts, but to treaties, he deduced from defining law as ‘meaning rules of general validity for and application to the subjects of the legal system, not arising from particular obligations or undertakings on their part’,13 that:

8  ICJ, Border and Transborder Armed Action (Nicaragua v Honduras), Jurisdiction and Admissibility, Judgment of 20 December 1988, [1988] ICJ Rep 69, 105, para 94. 9   See Art 38 of the PCIJ’s Statute, inter alia in Series D, No 1, 20. On that provision and the only ‘minor touching up’ of it when Art 38 of the ICJ’s Statute was drafted, see Pellet, ‘Art 38 ICJ Statute’, n 1 above, MN 17 et seq and MN 42 and 47 et seq. 10  ICJ, Nuclear Tests (Australia v France) (1974), n 6 above, 267, para 43. For more on this judgment see pp 116–38. 11   See, eg Maarten Bos, A Methodology of International Law (Amsterdam/New York, 1984) 89; Shaw, International Law, n 1 above, 122; Krzysztof Skubiszewski, ‘Unilateral Acts of States’ in M Bedjaoui (ed), International Law: Achievements and Prospects (1991) 221–22, para 3. 12   Victor Rodriguez Cedeño, First Report on Unilateral Acts of States, UN Doc A/CN.4/486 (1998) 12–14, especially paras 69–71 and ILC, Report on its Work of the Fifty-fourth Session, General Assembly, Official Documents, UN Doc A/57/10 (2002) 215, para 411; see also Simma, ILC, Summary Record of the 2525th Meeting, UN Doc A/CN.4/SR.2525 (1998) para 10 and the criticism voiced by Economides, ILC, Summary Record of the 2526th Meeting, UN Doc A/ CN.4/SR.2526 (1998) para 40. 13   Sir Gerald Fitzmaurice, ‘Some Problems regarding the Formal Sources of International Law’ in Symbolae Verzijl (The Hague, 1958) 157, note 2.

180  The Law on Promises treaties are a formal source of international obligation, but (even in the case of so-called ‘law-making’ treaties) are not a formal source of international law.14

The driving force behind Fitzmaurice’s analysis, just as behind those opinions referring to unilateral acts or promises merely as sources of obligation, is apparently the fact that the obligations created are restricted only to the (small) number of participating parties (only one state in the case of a promise). This distinction advocated by Fitzmaurice in reference to treaties has met with some criticism since it was published;15 amongst other aspects, it has been pointed out that limiting a definition of law to ‘rules of general validity’ was in fact begging the question.16 What is, however, strikingly odd about the debate on promises as sources of obligations and not law is that, while this distinction does not seem to be very en vogue in regard to treaties or more generally speaking the sources listed in Article 38, which are commonly referred to simply as ‘sources of law’, and not as ‘sources of law and/or obligations’, it can quite frequently be found in relation to unilateral acts. Yet, it should be clear that promises, once accepted as an existing legal mechanism, must necessarily share the status of treaties in this respect, at least treaties to which not all states are parties. Surely, either a mechanism creating only rules of particular applicability is considered not a source of law, but merely a source of (particular) obligations, and, thereby, promises along with treaties (even most of the ones often referred to as ‘law-making’)17 are discarded from the sources of law, or this distinction (which would probably also have to exclude regional custom as law) is rejected, whereby both treaties and promises are sources of law. To 14   Ibid 176 and 157–60. For the distinction between formal and material sources, see, eg Georges Abi-Saab, ‘Les sources du droit international: un essai de déconstruction’ in Manuel Rama-Montaldo (ed), El derecho internacional en un mundo en transfomacion, Liber Amicorum en homenaje al Profesor Eduardo Jiménez de Aréchaga (Montevideo, 1994) 31; Fitzmaurice, ‘Formal Sources’, n 13 above, 153–54. 15   See MH Mendelson, ‘Are Treaties Merely a Source of Obligation?’ in William Elliott Butler (ed), Perestroika and International Law (Dordrecht, 1990); Abi-Saab, ‘Sources’, n 14 above, 39–40; Pellet, ‘Art. 38 ICJ Statute’, n 9 above, 703–4, MN 81–83; HWA Thirlway, International Customary Law and Codification (Leiden, 1972) 25–27; Virally, ‘Sources’, n 1 above, 126–27 with further references. It has also found supporters, see, eg Brownlie, Principles, n 1 above, 4; Sir Robert General Jennings, ‘Course on Principles of International Law’ (1967) 121(2) Recueil des Cours de l’Académie de Droit International de La Haye 325, 331. 16   Speaking of a petitio principii, Pellet, ‘Art. 38 ICJ Statute’, n 9 above, 703, MN 82. 17   Some scholars have distinguished amongst treaties and divided them into ‘law-making treaties’ and others. ‘Law-making’ are treaties which create ‘legal obligations the observance of which does not dissolve the treaty obligation’, Brownlie, Principles, n 1 above, 13. Usually, a large number of participants is additionally considered a requirement for a treaty to become ‘law-making’, see Oppenheim, Jennings and Watts, International Law, n 5 above, 32. It has, however, been admitted that ‘there is no clear and dogmatic distinction between ‘law-making’ treaties and others’, Brownlie, Principles, n 1 above, 14. Also, as even these treaties can only oblige the parties to them and not impose rules of general applicability, they are not sources of law if Fitzmaurice’s analysis is followed. See also the criticism by Thirlway, International Customary Law and Codification, n 15 above, 26–27. If they reflect or help to establish customary law, it is, of course, the latter as a separate source which binds non-parties, not the treaty itself.



Promises and the Sources of International Law  181

treat promises as sources of obligations but all treaties as sources of law is contradictory. Once this parallelism is accepted, the necessary conclusion is that promises are indeed ‘missing’ from the ICJ’s list, since conventions (and note the Article’s wording, ‘whether general or particular’(!)) are on it. If Fitzmaurice’s distinction is accepted (even if only in relation to some treaties), Article 38 already lists not only sources of law but also sources of obligations; hence, promises, understood as a source of obligation, are missing. If his distinction is rejected and all conventions (whether general or particular, whether they impose obligations on both parties or merely on one of them) remain sources of law, at least for those to whom they apply, promises should again be on the list, as their function is the same. Whether they are missing as sources of law or as sources of obligations is, in this writer’s opinion, really of secondary importance; their being obliging only for the declarant is never denied, just as there is consensus that even if called sources of law, treaties function ‘only’ inter partes.18 Article 38 of the ICJ Statute has hence been criticised as incomplete,19 with ‘unilateral acts of states’ being one of the missing sources.20 The consequences arising from Article 38’s lacuna(e)21 have, however, been described as minimal in practice. As a ‘merely’ declaratory (treaty) provision of international legal sources, the Article, as such, cannot hinder the emergence of new sources in international law.22 Its openness is said 18   The question whether this distinction therefore amounts to nothing more than academic semantics has been raised, with Mendelson, ‘Source of Obligation?’, n 15 above, 87, arguing that Fitzmaurice’s distinction might lead to the false assumption that treaties were of a lower rank than custom, as only the latter was a source of law and not ‘merely’ of obligations. 19   See, eg Abi-Saab, ‘Sources’, n 14 above, 33 et seq; Pierre-Marie Dupuy, ‘La pratique de l’article 38 du Statut de la Cour Internationale de Justice dans le cadre des plaidoiries ecrites et orales’ in United Nations Office of Legal Affairs (ed), Collection of Essays by Legal Advisers of States, Legal Advisers of International Organizations and Practitioners in the Field of International Law [= Recueil d’Articles de conseillers juridiques d’Etats, d’organisations internationales et de praticiens du Droit International] (New York, 1999) 377, 379; Cedeño, First Report, n 12 above, 13, paras 66–70; Pellet, ‘Art 38 ICJ Statute’, n 9 above, 705, MN 87. 20   See, eg Antonio Cassese, International Law, 2nd edn (Oxford, 2004) 184: ‘This process for making law, although not provided for in Article 38 of the Statute of the ICJ, is envisaged by a general rule which has the same rank as those providing for custom and treaty-making’; Heintschel von Heinegg, ‘Einseitige Rechtsakte’, n 3 above, 235; Quoc Dinh Nguyen, Alain Pellet and Patrick Daillier, Droit international public, 7th edn (Paris, 2002) 360; Pellet, ‘Art 38 ICJ Statute’, n 9 above, 705, MN 87 and 88 et seq; while slightly sceptical, see also Wolfgang Graf Vitzthum, ‘Begriff, Geschichte und Rechtsquellen des Völkerrechts’ in Wolfgang Graf Vitzthum (ed), Völkerrecht, 4th edn (Berlin, 2007) 1, 75, MN 149. For the fact that it is especially the unilateral act of ‘promise’ which is missing from the sources rather than all unilateral acts in general, see the text to n 3 above. Contra Bos, Methodology, n 11 above 88. 21   Along with unilateral acts of states, acts of international organisations are often considered to be missing from the list. 22   Being a treaty provision and hence included in one of the sources listed, Art 38 cannot, of course, function as the constitutive cornerstone and bedrock of the sources of international law, see also Oppenheim, Jennings and Watts, International Law, n 5 above, 24; also Fitzmaurice, ‘Formal Sources’, n 13 above, 173; Pierre-Marie Dupuy, Droit International Public, 8th edn (Paris, 2006) 268 and Vitzthum, ‘Rechtsquellen’, n 20 above, 6, MN 3, who also stresses that Art 38 does not contain a ‘numerus clausus’ of international law sources, at 74–75, MN 148.

182  The Law on Promises to ensure the flexibility of the provision and allows the ICJ, whose duty it remains in the words of Article 38 to decide ‘in accordance with inter­ national law’, to keep in touch with the evolution of international law and to stray beyond the margins set by the catalogue included in the provision.23 While this analysis might be correct in principle and will ring true vis-à-vis acts of international organisations, it sounds a little awkward vis-à-vis promises, in light of the fact that the Court has had its fair share in elevating unilateral declarations to the level of a legally obliging tool in the first place. The ICJ has not simply taken account of a development in international law and gone along with it in its own judgments and despite its Statute’s ‘outdated’ provision, but has rather strongly been involved in crafting a new legal source by starting to apply it. It is therefore not surprising that the Court has been criticised as acting ultra vires.24 This harsh criticism was targeted at the Court’s decision in the Nuclear Tests cases and there is at least a grain of truth to it. Yet, as the analysis provided in chapter two has shown, it would be incorrect to assume that the Court had simply out of nowhere declared assurances to be legally binding. The ICJ and the PCIJ have, instead, played a decisive part in the gradual shaping of promises as a legal concept, a process which had started long before the Nuclear Tests cases, was backed by some state practice, and was only spectacularly catapulted into broad daylight through the Court’s decision therein. While in practice the line between law-making and law applying can become very thin, the process portrayed in chapter two might be described (and criticised) as falling quite clearly into the category of law-making by the ICJ. But it would be the wrong conclusion simply to ignore the development of international law that, even if mainly instigated by the Court, has by now taken place.25 The PCIJ’s and the ICJ’s (evolving) rulings, in which they have based themselves on unilateral assurances of states or analysed their legal bindingness, have not met with the opposition of states. State practice, as portrayed in chapter two, has instead indicated that there are many scenarios   See Pellet, ‘Art 38 ICJ Statute’, n 9 above, MN 79 (with further references).  See the evaluation provided by Alfred P Rubin, ‘The International Legal Effects of Unilateral Declarations’ (1977) 71 American J International Law 1, 28–29. 25   On ‘judicial legislation’ see, eg Hersch Lauterpacht, The Development of International Law (Cambridge, 1996 (1st edn 1958)) 153–223 and JL Brierly, The Basis of Obligation in International Law and Other Papers (Oxford, 1958) 98; on the importance of the ICJ’s (and PCIJ’s) decisions in forming international (customary) law, see also Paul Guggenheim, Traité de droit international public, 2nd edn (1967) vol 1, 112; Oppenheim, Jennings and Watts, International Law, n 5 above, 41; Pellet, ‘Art 38 ICJ Statute’, n 9 above, 788–90 and Virally, ‘Sources’, n 1 above, 150–52 and La Pensée Juridique (Paris, 1960) 165–71. The currently adopted ‘narrow’ understanding of estoppel (as requiring detrimental reliance) is another example of such a court-driven development of international law, as it cannot be grounded in the sources listed in ILC Statute, Art 38. It has thus been referred to as ‘a rule primarily applied and shaped in international courts’ and a rule of ‘judge-made international law’, Jean Paul Müller and Thomas Cottier, ‘Estoppel’ in Rudolf Bernhardt (ed), Encyclopedia of Public International Law, vol. I, (1992) 118. 23 24



The ILC’s Guiding Principles  183

in which states have good reasons and may hence clearly intend to use a binding, though unilateral, mechanism in adopting a future legal obligation. Similarly, there is an advantage to a recipient in being able to rely on such undertakings as legally valid. This might explain, in part, why the rulings depicted, backed by a partial, if not yet general, practice of states, have left their imprint on international law as practised and perceived by the international legal community, including those lawyers sitting in the international legal departments of states. Public international law books and articles list promises as a possible means for states to oblige themselves26 and discuss the precise legal regime pertaining to them. Finally, the International Law Commission, in its 2006 Guiding Principles, has clung to the ICJ’s dicta in this area and provided additional support to its doctrine. For the ILC: Any State possesses capacity to undertake legal obligations through unilateral declarations.27

This progressive development outside Article 38 can by now therefore only be denied by closing both eyes to international law as it is currently practised and understood amongst the legal profession. With the rules on promises of states being continuously crafted through the rulings of the World Court and mirrored in numerous publications of some of ‘the most highly qualified publicists of the various nations’, they are now very much present in what ICJ Statute, Article 38(1)(d) refers to as the ‘subsidiary means for the determination of rules of law’ – ‘subsidiary means’ being a label the practical significance of which, as has been pointed out, should not be exaggerated.28 Despite Article 38’s lacuna in this regard, this study will therefore take the cornerstones as set by the ICJ and subsequently adopted by the ILC as the point of departure and move from there to illuminate the current legal framework applicable to unilateral promises of states on the basis of a systematic and coherent legal analysis.29 II  THE ILC’S GUIDING PRINCIPLES

The ‘Guiding Principles applicable to Unilateral Declarations of States Capable of Creating Legal Obligations’ as adopted by the International   See Introduction, n 49.   ILC’s Guiding Principle 2. 28   See Brownlie, Principles, n 1 above, 19. For Fitzmaurice, ‘Formal Sources’, n 13 above, 168–73, decisions of international tribunals function at least as a ‘quasi-formal’ source of international law. 29   On the use of legal reasoning to illuminate ‘underdeveloped’ areas of law, see also the short comment by Ian Brownlie, ‘The Responsibility of States for the Acts of International Organizations’ in Maurizio Ragazzi (ed), International Responsibility Today, Essays in Memory of Oscar Schachter (Leiden/Boston, 2005) 357. 26 27

184  The Law on Promises Law Commission in 200630 have already been addressed briefly in the introductory remarks to this study. There it was noted that the overall topic of ‘unilateral acts of states’ was drastically reduced by the ILC to unilateral declarations of states capable of creating legal obligations and, thereby, in effect to those unilateral acts which form the subject of this book, ie unilaterally binding assurances, termed promises in international law.31 As such, the ILC’s final product is likely to be turned to and understood as reflecting the law which currently governs promises of states, especially as the ILC based itself nearly exclusively on ICJ dicta. Here, it will thus be used as a starting point in order to assess the legal framework applicable to promises. As already indicated, however, it can be no more than a point of departure, since the ILC, while having clearly identified the topic’s ‘hot spots’, left them unresolved. Unable to find a common position, some important aspects fell completely out of the Guiding Principles, such as, for example, the existence and legal interpretation of collective acts and the relationship between the Guiding Principles and unilaterally obliging declarations covered by other legal regimes. Both of these questions gave rise to numerous debates in the ILC and its Working Groups, yet neither are even hinted at, let alone actually dealt with, in the published outcome.32 The Guiding Principles surprisingly also do not address the consequences which coercion, fraud or error might have on a unilateral undertaking’s legal effect, even though taking a parallel approach to that adopted for manifestations of will in the realm of treaties by the Vienna Convention on the Law of Treaties would not have seemed to be very controversial.33 The lack of ICJ dicta in this area might explain why the ILC nevertheless could not agree to adopt one or more Guiding Principles covering these aspects. The ILC’s final version also does not address the relationship between promises and the principle of estoppel, even though questions are bound to arise in this respect and did indeed surface within the Commission.34 The Preamble does (at least) include references to additional areas of debate. For example, it ‘notes’ that ‘informal conduct’ and ‘silence‘ are capable of binding states, yet it does not say what silence or informal conduct have to do with the Guiding Principles’ subject matter.35 The important question of determining whether it will be a recipient’s (legitimate) expectation or the declaring state’s intention   For the wording of the Guiding Principles see Annex II.  On the question which subject matter is covered by the Guiding Principles, see Introduction, n 16. 32  In this study both questions have already been addressed when delimiting its subject matter. For collective acts see pp 41–55; for the ‘autonomy vs lex specialis’ question, see pp 55–78. 33   See Vienna Convention, Art 46 et seq. For more see also pp 237–39. 34   For more see pp 277–94. 35   Silence, where legally relevant, will be so either as tacit acceptance or tacit recognition; tacit promises are hardly conceivable. See p 78, also ch one, nn 13 and 15–17. 30 31



The ILC’s Guiding Principles  185

that will determine a declaration’s legal effect to be bound is similarly left vague; again, only in the Preamble does the ILC state: Noting also that in practice, it is often difficult to establish whether the legal effects stemming from the unilateral behaviour of a State are the consequence of the intent that it has expressed or depend on the expectations that its conduct has raised among other subjects of international law.

Even in respect of questions directly addressed by the Guiding Principles, the adjective ‘guiding’ has been characterised as a ‘false promise’ in the Introduction to this book, since the Principles fail to offer essential guidance in central aspects within their very field of application. The following example illustrates this point. Used as an introduction to this chapter on the law of promises, it highlights some of the crucial legal questions which have been left open and, hence, need to be further addressed and will form the main subject matter of this chapter. The ‘case’ to which the Guiding Principles will be applied is inspired by some of the state practice cited, but it is fictional, primarily in order to remain as clear-cut as possible if rather simplistic. After all, without clear answers to the ‘easy cases’, it will be even more difficult to tackle the hard ones. Imagine a Head of State who, only a couple of months ago, stepped back from the microphones and cameras of a major international press conference, in which he or she solemnly declared his or her country’s decision to dismantle all nuclear weapons within the next five years.36 After a restless week of power politics and with the world suddenly looking rather dark, our Head of State changes his or her mind and is no longer convinced that unilateral disarmament can make the world a safer place. But with the word already out, he or she might wonder, isn’t the country now inter­ nationally bound to disarm? Turning to the ILC’s Guiding Principles (reproduced in Annex II to the book), here are the answers the Head of State will find: Any State possesses capacity to undertake legal obligations through unilateral declarations

says Guiding Principle 2, which thereby provides an important starting point, while mirroring Article 6 of the Vienna Convention on the Law of Treaties.37 According to Guiding Principle 4, a Head of State is one of 36   The declaration might sound like this: ‘In my capacity as Head of State and on behalf of my Country of X, I am honoured and proud to solemnly declare on this present day, our country’s decision to dismantle and destroy all nuclear weapons currently in our possession within the coming five years. By this step we hope to encourage other countries to follow suit, so that future generations will not have to live with the daily threat of our world’s total destruction on account of a single man’s push of a button’. Readers who dislike made up scenarios might be inspired by other examples cited, for example by the Chinese declaration announcing a moratorium on nuclear tests as quoted in Introduction, n 42, or some of the negative security assurances cited at p 161 et seq. 37   Vienna Convention, Art 6 reads: ‘Capacity of States to conclude treaties: Every State possesses capacity to conclude treaties’.

186  The Law on Promises those vested with the authority to bind a state on the international plane via unilateral declarations: A unilateral declaration binds the State internationally only if it is made by an authority vested with the power to do so. By virtue of their functions, heads of State, heads of Government and ministers for foreign affairs are competent to formulate such declarations. Other persons representing the State in specified areas may be authorized to bind it, through their declarations, in areas falling within their competence.

Again a certain parallelism to the Vienna Convention’s Article 7(2)(a) can be identified38, but it was in particular the ICJ’s ruling in the case concerning Armed Activities on the Territory of the Congo, which aided the ILC in this respect. There, it will be recalled,39 the Court had expressly stated it to be a ‘well established rule of international law’ that the above-­mentioned are deemed to represent their state merely by virtue of exercising their functions, ‘including the performance, on behalf of said State, of unilateral acts having the force of international commitments’.40 According to the Court, furthermore, ‘other persons representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matters falling within their purview’.41 This finding has now been reproduced in the Guiding Principle just cited. The Head of State in our example will notice that the ILC, in conformity with the ICJ’s very clear ruling in this regard,42 established that there is no defence in claiming never to have issued anything in writing. Guiding Principle 5 states: Unilateral declarations may be formulated orally or in writing.

Also, the fact that the declaration was not addressed to any specific state is not an obstacle for its binding nature, as under Guiding Principle 6: Unilateral declarations may be addressed to the international community as a whole, to one or several States or to other entities.

While Guiding Principles 2 and 4 to 6 thus reiterate the ICJ’s findings, Guiding Principle 8 declares a ‘new’ (though largely uncontested and indeed uncontestable) rule,43 when it announces that: 38   Vienna Convention, Art 7 on ‘Full Powers’ in its para 2(a) reads: ‘In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs for the purpose of performing all acts relating to the conclusion of a treaty’. 39  See pp 169–72. 40  ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda), New Application 2002, Jurisdiction and Admissibility, Judgment of 3 February 2006, para 46. 41   Ibid para 47. 42   See ICJ, Nuclear Tests (Australia v France) (1974), n 6 above, 267–68, para 45. 43   See also the assessment by Christian Tomuschat, ‘Unilateral Acts under International Law’ in Droits et Culture. Mélanges en l’honneur du Doyen Yadh Ben Achour (Tunis, 2008) 1504.



The ILC’s Guiding Principles  187 A unilateral declaration which is in conflict with a peremptory norm of general international law is void.

This poses no obstacle when applied to the declaration in our example. The same is true for Guiding Principle 9, according to which: No obligation may result for other States from the unilateral declaration of a State. However, the other State or States concerned may incur obligations in relation to such a unilateral declaration to the extent that they clearly accepted such a declaration.

In this respect, the question should be raised why the ILC considered it necessary to establish that no obligation may result for an uninvolved state to which the latter did not consent, instead of merely clarifying that no obligation can or will arise for an uninvolved third state from a state’s unilateral declaration. States simply do not have the power to draw up obligations for non-consenting others and consequently there is no need to forbid such acts. However, no harm seems to have been done by the provision which only forbids the impossible. Unsurprisingly, Guiding Principle 9 therefore has no impact on the declaration in our example, to which we return. So far, the rather unproblematic aspects and principles have been addressed, and no obstacle to a legal obligation has arisen. With the ILC’s guidelines, however, we are not much further forward in assessing whether a unilateral declaration such as the one in our example will have a legal effect. For this core question, we are left with Guiding Principles 1, 3 and 7. The last Principle, Guiding Principle 10, addresses the similarly important issue as to whether a declaration which has been found to have created legal obligations can later be revoked. Guiding Principle 1 reads as follows: Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith; States concerned may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected.

Although a questionable requirement,44 the declaration in our example was ‘publicly made’ and it arguably manifested a will to be bound, although here we lack essential guidance. How do we determine whether a will to be bound was manifested? From which circumstances might it be inferred? Is it the reasonable addressee’s view that is decisive in assessing whether the declarant manifested a will to be bound (do we analyse the ‘declared will’ which might, however, not be what a state intended to declare), or must we actually inquire into the (difficult to assess) ‘real will’ the declarant had at the time, and might be able to prove through 44   A questionable requirement if not interpreted to include any statement that is intentionally communicated to an addressee, be it behind closed doors or not. For more see p 239.

188  The Law on Promises internal documents. Similar questions might, of course, arise in relation to bi- or multilateral commitments and have been debated in that regard. However, with unilateral declarations, the ‘will’ of the declarant seems to be of special importance for many commentators, both within and outside the ILC.45 The Commission, in its Commentary, cites the Frontier Dispute case in this context, in order to stress that ‘it all depends on the intention of the State in question’.46 Guidance in this respect is all the more necessary, as for unilateral declarations a formalised legal procedure at the international level is missing – ratification of unilateral declarations is the exception rather than the rule.47 And even at the national level there is usually no formal act or parliamentary involvement, which could somehow be indicative of a state’s intention to become legally bound by a subsequently made international declaration. But even if we assume that we can surmount this hurdle and have found a public manifestation of a state’s will to be bound, under the ILC’s Principles we will not have got very far. Guiding Principle 1 stipulates that, in this case, the declaration ‘may have the effect of creating legal obligations’. But ‘it may’ means that it very well ‘may not’ – even more so if said by a lawyer or incorporated in a legal text. It has to be noted that the wording chosen by the Commission on this fundamental matter is even more surprising when compared with the words chosen by the ICJ, to which the Guiding Principles continually claim to be paying the highest respect. To recall, the ICJ in the Nuclear Tests cases stated that: An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding.48

The Principles do not tell us which additional factors, besides a public statement made with a will to be bound(!), will decide between the ‘may’ and the ‘may not’, or will tilt the scale towards or away from legal bindingness. The second sentence simply skips this issue when it continues with: ‘When the conditions for this are met . . .’, and apparently assumes that we will know how to identify the essential (additional) conditions when we see them. Those who sympathise with the answer commonly provided by lawyers asked for an opinion, ie ‘well, it depends’, might point to Guiding Principle 3, which reiterates the importance of circumstances when it states:   See p 207 et seq.  ILC, Guiding Principles applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with commentaries thereto, ILC Report, A/61/10 (2006) ch IX, 370, Commentary to Guiding Principle 1, para 1. 47   For more see p 246. 48  ICJ Nuclear Tests (Australia v France) (1974), n 6 above, 267, para 43 (emphasis added). For the Nuclear Tests cases see p 116–38. 45 46



The ILC’s Guiding Principles  189 To determine the legal effects of such declarations, it is necessary to take account of their content, of all the factual circumstances in which they were made, and of the reactions to which they give rise.

There is, however, little comfort in being directed to take different aspects ‘into account’ without being told in which way. The criticism voiced here, in other words, is not directed at the ‘well, it depends’ answer itself, but at the silence in response to the follow-up question on what the answer might depend: What aspects are we looking for in declarations, what in the circumstances, what in the reactions to which they gave rise? It is furthermore noteworthy that the ILC begins its list of what to take into account by pointing to a declaration’s ‘content’ in order to assess a declaration’s legal effects, and not its text. But what is the content of the declaration made by the Head of State in the example provided? It can itself only to be ascertained by an act of interpretation and is con­sequently of little avail as an interpretative tool. Tomuschat, for this reason, critically remarks that the ILC is thereby attaching increased importance to the overall circumstances in which a declaration is made; Guiding Principle 3 is therefore found to be ‘based on a doctrine of interpretation in fundamental contrast to the rules of the [Vienna Convention]’.49 As the Commentary shows, the ILC has again used the ICJ’s jurisprudence as a foundation for its Guiding Principle and displayed no intention to deviate from the Court’s findings.50 Yet, while the ICJ has referred to a declaration’s ‘substance‘ or ‘content’ in its judgments, it has, as will be shown in detail, actually determined the latter by first turning to a declaration’s text.51 The ILC’s bare reference to a statement’s content in Guiding Principle 3 hence in effect falls short of the guidance provided by the Court in this respect. By shifting the focus primarily to the (in any event important) circumstances and the reactions to which a declaration gave rise, the question becomes all the more pressing, how they must be taken into account in assessing a declaration’s legal effect. While the Guiding Principles remain silent in this respect, the Commentary points to some examples of state practice, yet without explaining what legal effect they are supposed to illustrate. A closer look at the importance of the ‘reactions [presumably of the addressee(s)] to which [the declarations] gave rise’ may illustrate this point. The short and quite meagre commentary offered by the ILC cites a couple of declarations by states, which are said to have triggered different responses from their addressees; some took cognisance of the   Tomuschat, ‘Unilateral Acts’, n 43 above, 1502.   In explaining the adopted wording the ICJ’s Commentary claims that ‘the wording of Guiding Principle 3 is also inspired by a passage in the ICJ Judgments in the Nuclear Tests cases’, to which allusion had been made in the Frontier Dispute case and the Armed Activities on the Territory of the Congo case. The Military and Paramilitary Activities in and against Nicaragua case is also used as support, see ILC, Guiding Principles with Commentaries, n 46 above, 371, Commentary to Guiding Principle 3, para 1. 51   For more see p 211 et seq. 49 50

190  The Law on Promises commitments undertaken,52 others objected53 or challenged them.54 But what is the legal consequence of these reactions once they are identified? None of the cases cited by the ILC in this context has ever been brought before a tribunal which could have elaborated on the impact of the requisite addressee’s reaction. Does the latter’s objection extinguish the obligation the declarant wanted to assume? Is an acknowledgement by the addressee necessary for the obligation to arise or is it simply irrelevant? If it were irrelevant, why is it then necessary to take the reaction into account? The ILC does not tell us, the Commentary to Guiding Principle 3 really only points to the problem without solving it: Several of these examples show the importance of the reactions of other States concerned in evaluating the legal scope of the unilateral acts in question, whether those States take cognizance of commitments undertaken (or, in some cases, rights asserted), or, on the contrary, object to or challenge the binding nature of the ‘commitments’ at issue.55 52   The examples mentioned in the Commentary to Guiding Principle 3 of states which have ‘taken cognisance of the commitments’ as opposed to having objected to or challenged them, are problematic. The Commentary in its note 937 (the footnotes are consecutively numbered in the ILC Yearbook with the Commentary’s footnotes starting at 921) points to the Egyptian declaration on the Suez Canal as well as to Jordan’s statement about the West Bank, and directs the reader to Victor Rodriguez Cedeño, Eighth Report on Unilateral Acts of States, UN Doc A/CN.4/557 (2005) paras 63–64 for Egypt’s declaration, and paras 48, 50–51 for Jordan’s declaration. While in the Egyptian example some states indeed took ‘cognisance’ of the obligation undertaken, others objected to or challenged the declaration, see p 108 et seq. The Special Rapporteur’s Eighth Report only cites France’s rejection along with a Security Council and a General Assembly Resolution for the reaction of third states; both Resolutions are, however, completely devoid of any reactions to the Egyptian declaration, which is not surprising, as the latter was made around six months after the Resolutions had been adopted. The statement by Jordan on the West Bank, which is classified as a waiver by the Special Rapporteur and therefore falls into a special category of unilateral acts (see pp 34–36) is equally problematic in this respect. According to the Rapporteur’s Report, the waiver merely led to ‘surprise’ on the side of the PLO and was not mentioned in the declaration of the Independent State of Palestine, see Eighth Report, para 48. The United States appears to have rejected the declaration as it declared that the ‘status of the West Bank and the Gaza Strip could not be settled or established by unilateral acts’, ibid para 50. The reactions by other states, as cited in ibid para 51, are in part reactions to the declarations of independence by the PLO and not Jordan’s waiver, or recognitions of the West Bank being administered by the PLO. 53   Here, note 939 of the Commentary to Guiding Principle 3 presents Uruguay’s ‘refusal of a donation of vaccines from Cuba’ as the first example, but it is not a good one considering the details of the case: Cuba had offered what it called a ‘donation’ of vaccines to Uruguay, but nevertheless asked for the reduction of its debt owed to Uruguay in the amount of the vaccines’ cost. Uruguay accepted the deal while merely protesting against Cuba’s fairly inadequate semantics, and called the exchange by its real name: a commercial transaction. The other example provided does not concern a declaration that was intended to assume an obligation, at least not primarily: Russia is cited as having protested against Turkmenistan in 1993 when the latter wanted to establish its territorial waters in the Caspian Sea according to the law of the sea, whereas Russia held the law of the sea to be inapplicable as it considers the Caspian Sea to be really a lake, as it lacks any connection to a global ocean. See ibid 10–11, paras 36–43 and 18–19, paras 84–105. 54   Here reference is made to the reactions of the non-nuclear-weapon states. For more see pp 161–66. 55   Commentary to Guiding Principle 3, para 3, references omitted.



The ILC’s Guiding Principles 191

In our fictitious example we had not mentioned any reactions whatsoever, but even if we assumed that some states acknowledged the commitment, others renounced it and a majority remained silent, we would only know that these reactions are somehow ‘important’. Leaving aside for the moment the ILC’s Guiding Principles 1 and 3 and the indeterminacy included therein, the remaining principle on a unilateral declaration’s interpretation is Guiding Principle 7, and its first sentence might shed some additional light on whether a declaration (such as in our example) has created legal obligations or not. In keeping with the ICJ’s jurisprudence, it does refer to a declaration’s text, when it reads: A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms.

The declaration of our Head of State has set out the decision to pursue a precise aim (nuclear disarmament within five years) and therefore might well be considered clear and specific. Of course, a little more guidance might again have been helpful in determining what the standard might be that is to be applied under the ‘clear and specific’ formula. However, Guiding Principle 7, second sentence, apparently gives expression to the ICJ’s restrictive interpretation when it says: In the case of doubt as to the scope of the obligations resulting from such a declaration, such obligations must be interpreted in a restrictive manner. In interpreting the content of such obligations, weight shall be given first and foremost to the text of the declaration, together with the context and the circumstances in which it was formulated.

On closer look, however, the ILC in this principle opts to apply a restrictive interpretation (only) where there is ‘doubt as to the scope(!) of the obligations resulting from such a declaration’ and not when assessing whether or not a state has actually intended to bind itself. Not only the Guiding Principles’ structure, in which the determination of a declaration’s legal effects is already covered by Guiding Principle 3, but also the wording of Guiding Principle 7, sentence 2, thus point towards Tomuschat’s conclusion that what Guiding Principle 7 addresses is not whether a declaration has been made with an intention to be legally bound; it instead deals solely with the ‘substantive details of an obligation found to exist’.56 As he says, the ‘if’ does not come within the scope of Principle 7 but that of Principle 3. And indeed, the wording of sentence 2 of Principle 7 is clearly restricted to this aspect as it speaks of the scope of legal obligations, thereby presupposing a legal obligation to be already existing. Sentence 1 of Principle 7, on the other hand, does not contain the same restricted wording, when it simply says: ‘A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms’. If so applied, it 56

  Tomuschat, ‘Unilateral Acts’, n 43 above, 1503, emphasis added.

192  The Law on Promises can even lead to a finding of no existing legal obligation, ie where no clear and specific wording is used. And as seen in chapter two, this is precisely what happened in the case concerning Armed Activities on the Territory of Congo,57 which the ILC’s brief commentary to Guiding Principle 7 cites as support. In doing so, Guiding Principle 7 therefore in its first sentence seems to apply to the ‘if’ question of whether a state expressed an intention to be legally bound, while its second sentence establishes a restrictive interpretation (only) for when an obligation has already been found to exist. The result is not only odd in respect to the structure the Principles thus appear to have (Principles 3 and again 7, yet only sentence 1, address the finding of an intention to be bound). The Principles also contradict the ICJ jurisprudence to which they refer,58 while leaving open what kind of interpretation should in fact be applied to declarations of states in assessing their intention to be legally bound. Some members of the ILC, just as some states in their comments, emphasised that ‘everything depends on context’ and might applaud the indeterminacy found to exist, especially in the main Guiding Principles 1 and 3.59 The result, however, is a considerable lack of legal security. The Principles themselves put it quite nicely in their preambular part, according to which states ‘may find themselves bound by their unilateral behaviour on the international plane’. As with every bad compromise, neither side within the ILC can really be happy with this outcome. The members of the ILC who were sceptical of drafting rules for unilateral declarations or at least promises as a legal institution had to concede that states might very well be bound by unilateral declarations ‘publicly made and manifesting a will to be bound’ and have, by adopting the Guiding Principles, underlined the relevance of the ICJ’s dicta in this area. The proponents of such rules, on the other hand, have been presented with ‘Guiding’ Principles which tell us only very little about when this bindingness is brought about. This last criticism should not be misunderstood as a call for a closely determined system, where every act A triggers a precisely determined legal consequence B; a certain range of indeterminacy is, of course, vital for most law to be adequately applicable to complex realities. Yet, the Guiding Principles expressly stipulate that a state may be bound by its actions, without providing the state with any clear indication as   See pp 169–72.   See p 212 et seq.   See, eg the answers given by Finland to the questionnaire which the ILC had sent to governments, ILC, Government Replies to the Questionnaire, n 2 above, 2. The answers to the questions as to what formalities unilateral acts are subjected, which types of unilateral acts existed and what their content might be, and as to their importance, usefulness and value or possible duration, were all answered as ‘depending on context’. While Finland in its answer rightly observed that legal doctrine’s aim is to protect legitimate expectations, it overlooked the fact that what can be considered as a ‘legitimate expectation’ will essentially depend on the normative legal framework applicable to the act in question. For more see p 207 et seq. 57 58 59



The ILC’s Guiding Principles 193

to when this might happen. The reason for the Principles not doing so appears to relate back to the opposite positions within the ILC which led the Commission first to narrow the subject matter and then focus nearly exclusively on ICJ dicta. The time pressure at the end of the quinquennium was apparently so considerable that marked ambiguities within the Principles could not be ironed out, whereby some question marks have in fact even been added to those which, especially in respect of legal aspects not yet covered by the Court’s jurisprudence, were already present in the area. It is thus hard to imagine the Head of State in our example not sitting back rather puzzled after reading the ILC’s Guiding Principles. If he or she decides to play it safe, he or she might assume they have created a legal obligation through the statement and look into possible grounds for revocation, which are to be found in Guiding Principle 10. Yet, here again, the reader will be confronted with a couple of open questions. Just as the ICJ in the Nuclear Tests cases found that the French declarations ‘cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration’, the Guiding Principles prohibit ‘arbitrary’ revocation: A unilateral declaration that has created legal obligations for the State making the declaration cannot be revoked arbitrarily. In assessing whether a revocation would be arbitrary, consideration should be given to: (a) any specific terms of the declaration relating to revocation; (b) the extent to which those to whom the obligations are owed have relied on such obligations; (c) the extent to which there has been a fundamental change in the circumstances.

Unlike the ICJ, the ILC therefore went a small step further, by adding a couple of aspects that should be taken into consideration in assessing whether a revocation has been arbitrary or not, such as the extent to which those to whom the obligation owed have relied on it, whether there were specific terms of revocation included in the declaration, or a fundamental change of circumstances had occurred. As the declaration in our example included no reference to revocation and a change of mind can hardly be seen as a fundamental change of circumstances,60 its revocation will hinge on the question whether and in which way another states’ reliance might influence the declarant’s freedom of action. Again, however, here the questions will only begin: How will we know if other states have 60   The Guiding Principles refer to a fundamental change ‘in the circumstances’ and not ‘of circumstances’, found in the Vienna Convention on the Law of Treaties. This change in wording, however, does not seem to imply any difference in application, as ILC, Guiding Principles with Commentaries, n 46 above, Commentary to Principle 10, para 3, explicitly refers to ‘the strict limits of the customary rule enshrined in Article 62 of the [Vienna Convention]’, see ILC, Guiding Principles with Commentaries, 381.

194  The Law on Promises relied on the statement made? Do they need to express their reliance or demonstrate it by any sort of action? What if there is mere silence on the other side? And why should the addressee’s reliance decide whether a declarant acts ‘arbitrarily’ in revoking in the first place? Because even if reliance is considered to be important, and it is indeed essential in this context,61 it is hard to see how good reasons leading a declarant to revoke, turn into ‘arbitrary’ ones in the face of reliance.62 Also, and more import­ antly, the ILC is silent on how reliance will play out in the equation: Will the addressee’s reliance completely hinder the revocation of a unilateral declaration or does it merely impose certain (and if so, what kind of) limits and restrictions on the declarant? The questions raised in dealing with this short example are those which are not solved (and are in part produced) by the ILC’s Guiding Principles. We are going to leave the fictitious statement here. While the ILC’s Guiding Principles have, as seen, the merit of pointing to the relevant dicta in the area of state promises and have incorporated some of them into a few rather clear-cut guidelines in the more unproblematic areas, they regrettably reveal major inaccuracies and are of little help when trying to interpret a concrete declaration as legally binding or not. On account of the very different views held by its members, the ILC was, in addition, not able to move forward to illuminate how to fill some of the existing ‘gaps’ and answer open questions that the Court has left for potential promises of states. The questions resulting from the Guiding Principles lacunae and encountered by the Head of State in our example are now to be addressed in more detail on the following pages, in order to provide some clearer answers. III  LEGAL BASIS FOR THE BINDINGNESS OF UNILATERAL PROMISES

In doing so, it is essential to begin by defining why a unilateral assurance is considered as becoming binding upon a declarant. What legal norm or principle, in the end, is it based on and why is that principle held to compel a state to adhere to its pledge? Far from being a merely academic exercise, it is one of the keys to finding a solution to several of the open questions identified above.63   See p 194 et seq.   Reliance should therefore rather stand beside arbitrariness and on its own independent footing as a ground influencing the possibility of revocation. For more see p 251 et seq. 63   Within the ILC, Simma, ILC, Summary Record of the 2593rd Meeting, UN Doc A/ CN.4/SR.2593 (1999) para 73, rightly stressed that determining the basis of a unilateral act’s binding force, ie ‘the philosophical foundation of the problem’, could ‘have an impact on the solution of very practical topical issues’. In the field of promises, Koskenniemi’s finding that ‘the unresolved dispute about the basis of obligation emerges each time a State denies that 61 62



Legal Basis for the Bindingness of Unilateral Promises  195

Following the debates within the ILC and in view of the opinions expressed by legal commentators in publications on the matter, three answers are nowadays provided with some regularity to explain why a state will be bound by its promise made. In addition, two more are mentioned, if only rarely. Amongst the more common, the first line of argument takes recourse to state sovereignty and notes that sovereign states are free to restrict their freedom as they like, and that there is no apparent reason why the legal framework should impose an impediment in this respect for them to do so unilaterally. Closely connected and indeed intertwined with this understanding, a second section of legal doctrine emphasises the pivotal importance of a state’s intent: if a state wants to bind itself unilaterally, then its will to do so can and must give rise to a legal obligation once it has been expressed. Finally, and probably amongst the majority of authors, the principle of ‘good faith‘ is put forward as the cornerstone on which the bindingness of a unilateral assurance can be based. It is, however, not always clear what ‘good faith’ is actually meant to protect. While sovereignty, a state’s intention and good faith are dominant in the arguments on the bindingness of international promises and will be addressed shortly and in detail, two other legal concepts have also been advanced. Especially in slightly older publications, the principle of estoppel in international law has been used to explain a promise’s legal effect. As the estoppel principle, along with its relation to the doctrine of promises, is indeed important when picturing the legal framework that might be triggered by a state’s unilateral pledge, it is addressed in more detail below.64 In the present context, it may suffice to emphasise that the bindingness of a promise for the following reasons cannot be based on estoppel as it is presently conceived to function in international law. The principle of estoppel has a distinct legal effect apart from that which an assurance, as such, might trigger when interpreted as an international promise. Estoppel acts as a (complete) ‘shield’ to protect the addressee against the alteration of a declarant’s behaviour which is judged to be inconsistent. Being a shielding legal defence, unlike promises, it hence does not serve as the basis of an executable and claimable obligation (ie it is no ‘sword’ that can be used against the promisor); there is no ‘estoppel obligation’ that, if breached, will trigger a state’s responsibility. To be invoked, estoppel in addition requires detrimental reliance on the part of the addressee in order to come into play. Only on account of this reactive behaviour on the part of the addressee, and in order to protect the latter from potential detriment, will estoppel hinder a state from altering its behaviour. A promise, however, has been held and is generally understood to be binding once a rule can be applied to it, that is, in any international dispute’, is particularly to the point, Martti Koskenniemi, From Apology to Utopia: the Structure of International Legal Argument (Reissue with a new Epilogue, Cambridge, 2005) 332. 64   See p 277 et seq.

196  The Law on Promises it is made and without having to trigger any reaction from the state(s) to which it was directed. Neither on the grounds of what is necessary for promises to become binding, nor of their actual legal effect, can a promise therefore be explained by the estoppel principle, at least if the latter is not rewritten and stripped of those features which currently define it.65 Beyond estoppel and the trio of sovereignty, intent and good faith, to which we will turn in a moment, a presumption of consent has also been mentioned as explaining an assurance’s binding force. It will, therefore, if only very briefly, be scrutinised first. A  Presumed Consent Basing the binding nature of promises, or even that of all unilateral acts, on the presumption of the addressee’s consent, is not very common in publications on the topic. However, it is sometimes mentioned in reference to a side note by James Brierly, written while he was Special Rapporteur for the law of treaties within the ILC, and as such will not be left unaddressed here. For Brierly : A possible explanation of the binding force of so-called unilateral declarations creative of legal rights against the declarant is to be found in the theory of presumed consent of the beneficiary.66

The problem with Brierly’s approach, which if still referred to is usually criticised and discarded,67 is quite obviously that it does not explain a unilateral act’s legal effect: if the unilateral act became binding only on the basis of the addressee’s consent, even if presumed, there is no longer a unilaterally binding act. This is presumably why James Brierly referred to ‘so-called’ unilateral declarations in the above passage, as according to this solution, it is not the unilateral declaration as a single unilateral manifestation of will which is binding but the consensual bond established on the basis of a (presumed) meeting of minds, ie two manifested wills. Rubin, in discussing this theory as applied to the Nuclear Tests cases scenario, rightly stressed that: It . . . assumes an approach by which a unilateral declaration delivered publicly and with no particular addressee creates powers in all states as implied ‘offerees’ to accept by silence the offer contained in the declaration.68   For details and references see p 277 et seq.   James Brierly, Report by JL Brierly, Special Rapporteur for the Law of Treaties, UN Doc A/ CN.4/23 in (1950) II YB International Law Commission 227, para 20. 67   See A Gigante, ‘The Effect of Unilateral State Acts in International Law’ (1969) NYU School of Law J International Law and Politics 333, 342; Rubin, ‘Unilateral Declarations’, n 24 above, 11; and Camille Goodman, ‘Acta Sunt Servanda? A Regime for Regulating the Unilateral Acts of States at International Law’ (2006) 25 Australian YB International Law 43, 60–61. 68   Rubin, ‘Unilateral Declarations’, n 24 above, 11. 65 66



Legal Basis for the Bindingness of Unilateral Promises  197

We would thereby simply be back in known treaty waters, as Brierly acknowledged when he continued by saying: ‘If this theory be correct the categorization of such declarations as treaties, whether for the purposes of Article 102 of the Charter of the United Nations or otherwise, is permissible’.69 And indeed, as seen in chapter two, in many cases legal commentators have argued that the legal commitment in question had been brought about, not through the unilateral assurance as such, but instead through an oral treaty thanks to the addressee’s tacit assent. Yet, as some of the cases have illustrated and numerous commentators have never tired of stressing,70 this strictly consensualist approach has to close both eyes to social realities, in cases where none of those involved intended to or actually acted under the impression of concluding an informal treaty: the declarant, now christened ‘offeror’, did not ask for an acceptance of his declaration, nor did the addressees want to provide one. As seen, the presumed-consent approach is also not the approach taken by the World Court, with the Nuclear Tests cases’ decisions leaving no more room for doubt. Deciding long after Brierly’s comment, as portrayed above, the Court found that ‘[i]n these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made’. To presume such acceptance would, of course, mean that a second manifestation of will was necessary in order for the declaration to become binding, hence the presumption; with the latter, the bindingness would consequently not be ‘an international obligation assumed by unilateral declaration’ based on good faith, but an international obligation assumed by consensus and binding since pacta sunt servanda. Presumed consent has therefore been rejected by the ICJ and it is at least implicitly rejected by every author or tribunal that has attributed legal force to a unilateral declaration as such.

  Brierly, Report, n 66 above, 227, para 20.  Vladimir-Djuro Degan, ‘Unilateral Act as a Source of Particular International Law’ (1994) 5 Finnish YB International Law 149, 170–71; Paul de Visscher, ‘Remarques sur l’évolution de la jurisprudence de la Cour Internationale de Justice relative au fondement obligatoire des certains actes unilatéraux’ in Essays in Honour of Manfred Lachs (The Hague/ Boston, 1984) 459, 464; Jean-Didier Sicault, ‘Du caractère obligatoire des engagements unilatéraux en droit international public’ (1979) 83 Revue Générale de Droit International Public 633, 641; Gian Carlo Venturini, ‘Attitudes et actes unilatéraux des états’ (1964) (II) 112 Recueil des Cours de l’Académie de Droit International de La Haye 363, 400, especially 404–05. 69 70

198  The Law on Promises B  State Sovereignty and Intent But why then should a unilateral assurance, in which a state promises to do or refrain from doing something in the future, be binding upon that state? Because it is its sovereign decision to become bound, seems to be at least part of the answer provided within the legal community. As Herdocia Sacasa, for example, stressed in the ILC: ‘if a universal norm had to be found as the basis for the binding legal effect of all unilateral acts, then it must be sought in the area of state sovereignty’.71 The sovereignty argument in addition seems to be at the heart of the second, somewhat related finding, that it was the intention of a state, and therefore its will, to become bound which conferred a binding nature upon an assurance made. The latter position surfaces with some regularity within the debate. The Special Rapporteur in his First Report, for example, stated the following: The State which formulates the declaration is bound to fulfil the obligation which it assumes, not because of the potential juridical interest of the addressee but because of the intention of the State making the declaration.72

Jean Charpentier, in his article on unilateral engagements, in a similar vein concludes that good faith was only of subsequent importance in dealing with the execution of an obligation already undertaken and not with the obligation’s ‘birth’. The answer to the question as to the actual foundation of a unilateral engagement’s binding force was instead to be found in the ‘autonomy of the [declarant’s] will’.73 For Krzystof Skubiszewski also: ‘What is decisive is the intention of the State: the State is bound by its unilateral act because such has been its intent’.74 The problem with this understanding is that despite the assertions made, it is incapable of explaining why a state should have created an obligation and become bound by its assurance. While state sovereignty can serve as the theoretical starting point for explaining a state’s ability to undertake legal obligations – in the words of the PCIJ in 1923: ‘the right [and it might be added capability75] of entering into international engage71   Herdocia Sacasa, ILC, Summary Record of the 2527th Meeting, UN Doc A/CN.4/ SR.2527 (1998) para 14. 72   Cedeño, First Report, n 12 above, 29, para 160. Ibid para 161, Cedeño mentions ‘the need to create greater confidence in international relations’ as another justification for the binding nature of unilateral declarations. 73   Jean Charpentier, ‘Engagements unilatéraux et engagements conventionnels: différences et convergences’ in Jerzy Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century (The Hague/London/Boston, 1996) 367, 374. 74   Skubiszewski, ‘Unilateral Acts’, n 11 above, 231, para 51. Although the principle of good faith and the reliance on an act influenced a declaration’s application, they did not confer the binding force on the act, ibid 232, para 52. 75   For sovereignty as a description of legal competence see Brownlie, Principles, n 1 above, 291 and 105 et seq.



Legal Basis for the Bindingness of Unilateral Promises 199

ments is an attribute of State sovereignty’76 – it alone cannot explain why the sovereign should be bound to adhere to its own previous decisions even against its present will. Because only where a state has changed its mind will the nature of an obligation and the bindingness of a declaration be of actual relevance and prove its existence. An account of the legal basis of a promise’s obligation therefore has to explain why a past statement should restrain a state’s current actions, in other words: why a state is obliged to do what is has assured, irrespective of whether it presently wants to do so or not. The explanation for this phenomenon termed ‘bindingness’ is not provided by the concept of sovereignty alone – quite on the contrary, really. If it is a state’s sovereignty that allows it to confer a binding nature upon an assurance at will, then why should this very same power not allow a state to later act as now intended, and thereby (even implicitly) to revoke its old decision? Free – that is, unrestrained – revocability which is the logical result of a (solely) sovereignty-based argument, and a concept of ‘bindingness’, however, do not go together.77 What is true for an argument based solely on state sovereignty is, of course, also true for the position according to which a state’s will is the reason compelling it henceforth to the line of action declared. Yet, as seen, for the Special Rapporteur: ‘The State which formulates the declaration is bound to fulfil the obligation which it assumes, not because of the potential juridical interest of the addressee but because of the intention of the State making the declaration’. But again, the question must be raised why an ‘old will’ of a state should prevail over its ‘new will’? It is this scenario of a change of mind which puts the theories to the test; but by pitting a state’s will at time 1 against the very same state’s will at time 2, there is really no reason to see why arguing on the basis of a state’s intentions should lead to a preference of past decisions over present ones. To do so would instead be entirely arbitrary and compel a state to maintain a decision against its present will merely because it ‘once said so’, and even where the obligation undertaken is of no interest to anyone and possibly even to the detriment of the declarant or that of other states. Unless an external position is introduced which warrants protection, everything instead militates in favour of allowing a state to decide what is presently best for it, and not force a longgone decision upon it simply because it was adopted in the past. Arguments directed against founding legal obligations solely on the will of a (single) state are of course anything but new and have been exchanged by lawyers in various contexts. The general theory of ‘auto-limitation’ as the foundation of international law, which had been advanced especially by Georg Jellinek78 at the end of the nineteenth and beginning of the twentieth  PCIJ, SS Wimbledon, Judgment of 17 August 1923, Series A 1, 15, 25.   See also the references provided in n 86 below. 78   To be found in various of his publications, especially Georg Jellinek, Die Rechtliche Natur der Staatenverträge. Ein Beitrag zur Juristischen Construction des Völkerrechts (Wien, 1880). 76 77

200  The Law on Promises centuries, has been criticised with similar arguments from very early on. Laband, for example, in 1906 wrote: A self restraint is without legal force; because it can be resolved at will; if it is followed, it is not because one may not, but because one does – for reason of prudence, decency, fear etc – not want to resolve it. This is true for the State just as it is for the individual.79

Brierly, amongst others,80 has also criticised the idea of states auto-­ limiting themselves based solely on their own will, by stating that: However we may choose to define law, an essential part of the function of law must be to limit the wills of those to whom its precepts are addressed, and its binding force cannot possibly be derived from the will that it limits.81

Here, our business is not that of establishing the foundation of international law but only finding an answer to the question why a unilateral assurance as such is held to become binding upon the state making it. Yet, the answer has to take into account what has been emphasised in the above quotations: Especially in the context of unilateral acts, where it is only the will of a single state which is said to create a legal obligation, the words must ring true: the obligation would indeed be non-existent, were it to be grounded on and explained in reference to the will of the declaring state, because then it could be changed accordingly, ie at will.82 As already hinted above, some authors, such as Jean Charpentier, have contemplated setting the question of the initial obligation apart from that of a declaration’s revocability, and grounding the initial obligation on a state’s will, whereas only the subsequent obligation not to revoke this declaration and the regime governing its further existence is grounded on good faith.83 For Skubiszewski, similarly, reliance may decide the act’s revocability in doubtful cases but it does not confer the binding force on the act.84 Yet, and apart from the fact that the ICJ (as will be recalled and 79   Paul Laband, ‘Besprechung zu: Mérignhac, Traité de Droit Public International’ (1906) 20 Archiv für öffentliches Recht 302, 304, and my translation of the following original: ‘Eine Selbstbeschränkung ist ohne rechtliche Kraft; denn man kann sich nach Belieben frei machen; tut man es nicht, so geschieht dies nicht weil man nicht darf, sondern weil man aus Klugheit, Sittlichkeit, Anstand, Furcht u.s.w. nicht will. Dies gilt vom Staat wie vom Einzelnen’. For a thorough and recent discussion of Jellinek’s theory and criticism of it, see, eg Jens Kersten, Georg Jellinek und die klassische Staatslehre (Tübingen, 2000) 409. 80   See, eg, also Alfred Verdross, ‘Le fondement du droit international’ (1927) 16 Recueil des Cours de l’Académie de Droit International de La Haye 24, 266–67, whose position (formulated in French) can loosely be translated as follows: ‘If the legal provision is nothing but the product of a free will, it, at its basis, is not binding; it is at the discretion of the States which have created it and which will no longer have to take it into account, once they decide it not to be binding any longer. What has been created by will, can be undone by a will to the contrary’. 81   Brierly, Basis of Obligation, n 25 above, 14. 82   See also Koskenniemi, From Apology to Utopia, n 63 above, 310: ‘Limits on State freedom which are merely willed and capable of being altered at any change of will are not normative limits at all’. 83   Charpentier, ‘Engagements unilatéraux’, n 73 above. 84   See n 74 above.



Legal Basis for the Bindingness of Unilateral Promises  201

seen in more detail below)85 has emphasised that the creation of the obligation itself is governed by good faith, the alternative concept proposed would lead to the very contradiction that was just depicted. While it is, of course, possible to address a declaration’s bindingness separately from its revocability, both subjects remain intimately related.86 With free revocability as the result of referring solely to a state’s will, there is nothing which can adequately be referred to as an ‘initial obligation’ much less a declaration having binding force. Because, what is the promising state obliged to do, to what is it bound to adhere if it is its will that reigns? The resulting free revocability instead means that a state does not really have to perform what it has promised in any way, it is not obliged to do so. To base the ‘initial obligation’ or even a declaration’s ‘bindingness’ on a state’s will and only that of its execution on good faith, hence either hollows out the words ‘obligation’ and ‘bindingness’ and leaves them devoid of any meaning, or is contradictory. ‘Obligation’, just as ‘binding declaration’, express nothing else than that a state’s freedom of action is restricted and limited in a certain way by the declaration made. With only the two ingredients of sovereignty and a state’s intent in the mix, the result will therefore never be that of a binding obligation. In order to explain a declaration’s binding force, it is hence necessary to move further and towards ‘good faith’, as many authors and the ICJ have done. As will be seen, the intention of a state is thereby not entirely taken out of the picture, however, the bindingness of an assurance cannot be grounded on it. C  Good Faith and Presumed Reliance While the ICJ’s Nuclear Tests cases judgment stressed the importance of a state’s intent in assuming a legal obligation, a fact to which we will return,   See p 202 and also n 87.   The connection between the two concepts has been stressed by numerous authors, see, eg Wilfried Fiedler, ‘Zur Verbindlichkeit einseitiger Versprechen im Völkerrecht’ (1976) 19 German YB International Law 35, 58: ‘Nicht zufällig muss sich die Frage einstellen, welche rechtliche Bedeutung jener “Verbindlichkeit” noch beizumessen sein soll, wenn sie ohne weiteres durch einen Widerruf wieder aufgehoben werden kann. Schon hieraus wird deutlich, dass die Formulierung einzelner Verbindlichkeitskriterien stets auch die Möglichkeit des Widerrufs im Blick behalten muss, wenn nicht gleich zu Begin ein unzutreffender Eindruck geschaffen werden soll’; Sergio M Carbone, ‘Promise in International Law: A Confirmation of its Binding Force’ (1975) 1 Italian J International Law 166, 171, who in addressing the ICJ’s ‘arbitrary revocation’ prohibition considers it to undermine ‘once and for all those theories that, while expressly aimed at determining when a promise may be revoked, eventually lead to denying its binding force’. See also the comment made by Goco during an early ILC meeting on the Rapporteur’s First Report: ‘The binding character of a unilateral act would be illusory if the legal relationship the act created were to be terminable unilaterally and at the will of the author State’, ILC, Summary Record of the 2524th Meeting, UN Doc A/CN.4/ SR.2524 (1998) para 42. 85 86

202  The Law on Promises it also clarified that it is not the intention which serves as the basis of a unilateral declaration’s bindingness. Instead, for the Court, the principle governing not only the execution but also the creation of an obligation is that of ‘good faith’: One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith . . . Just as the very rule of pacta sunt servanda in the law of treaties is based on good faith, so also is the binding character of an international obligation assumed by unilateral declaration.87

The ILC has thus followed the ICJ’s line of reasoning, when in Guiding Principle 1 it also assumed ‘the binding character of such declarations is based on good faith’. Yet, the term ‘good faith’, as such, is elusive enough still to camouflage what is actually protected by it. Sicault has highlighted the various meanings attributable to the legal88 expression of ‘good faith’, ranging from being faithful to the law and one’s undertakings, especially when executing the latter, to a state’s erroneous state of mind to be acting in conformity with the law. Neither of these interpretations are, of course, meant when referring to good faith in the present context. Instead, to hold a state to its promise on the basis of ‘good faith’ is widely perceived to mean to protect the addressee’s legitimate reliance (= the confidence and trust placed) on the unilateral assurance given.89 This is what the ICJ was driving at when it emphasised: 87   How Rubin could interpret the Court thereby to ‘presume that an “international obligation” may be assumed by way of a unilateral declaration independently of the principle of good faith’ and ‘apparently’ to have taken ‘the view that good faith merely prevents unilateral revocation of the international obligation, created by unilateral declaration’ is difficult to understand in light of the Court’s own wording according to which the creation of the legal obligation as such is governed by good faith. See also the similar critique by Sicault, ‘Engagements unilatéraux’, n 70 above, 678–79. 88   That it is anything more than a moral principle in this area has been doubted especially by Elisabeth Zoller, La bonne foi en droit international public (Paris, 1977) ss 347–50, for whom at xxvi it ‘cannot found juridically the obligation to respect the legitimate beliefs of others’. Yet, and as will be seen, in the realm of promises it does quite clearly operate as a legal principle; see also the criticism by Sicault, ‘Engagements unilatéraux’, n 70 above, 681 et seq. See also Kolb, La bonne foi, n 5 above, 379, note 171 with further references. 89   See Sicault, ‘Engagements unilatéraux’, n 70 above, 683: ‘il ne s’agit plus du devoir de loyauté de l’auteur de l’engagement unilatéral, mais de la confiance légitime des destinataires dudit engagement, qui ne doit pas être déçue’. Formulations vary but reflect the same understanding, see Rodolfo De Nova, ‘Die Neutralisation Österreichs’ (1958) 54 Die Friedenswarte 298, 304: ‘Auf diese Weise legt [die Bekanntgabe des Versprechens] den Grund zu Erwartungen, die an die Erklärung geknüpft werden, und schafft das in sie gesetzte Vertrauen; und in diesem Vertrauen kann man den Verpflichtungsgrund des Versprechens erblicken’; Wilfried Fiedler, ‘Unilateral Acts in International Law’ in Rudolf Bernhardt, Peter Macalister-Smith and Max-Planck-Institut für Ausländisches Öffentliches Recht und Völkerrecht (eds), Encyclopedia of Public International Law (Amsterdam/New York, 2000) vol 4, 1021: ‘the acceptance of binding force is intended for the protection of those States which have had cause to rely upon the declaration’; Dinesh Khosla, ‘Nuclear Test Cases: Judical Valour v. Judicial Discretion’ (1978) Indian YB International Law 343: ‘This decision, it may be submitted, clarifies the real sociological basis of obligation in international law. By asserting



Legal Basis for the Bindingness of Unilateral Promises  203 One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many fields is becoming increasingly essential.90

To hold a state bound to its words and consider it obliged to follow through with what it has proclaimed, irrespective of its change of heart, is therefore considered necessary not in order to enforce a mere ‘because you said so’, or ‘you once wanted so’ against the declarant state, which would rather senselessly limit its present freedom of action, but in order to protect a legitimate interest which is weighed against the declarant’s freedom to act as presently intended; this interest is the trust and confid­ence legitimately placed on an assurance by the addressee. Only with this external point of reference can the bindingness of the declaration be explained. But if this is true, and we believe it is, a number of questions come to mind. The first consideration is, how the conclusion that only qua reliance will a binding commitment come into being, can be compatible with the ICJ’s finding that a promise required not only no quid pro quo or acceptance but ‘not even any reply or reaction from other states . . . to take effect’. That the addressee’s reaction is not necessary for the promise to become binding has not only been unequivocally asserted by the Court, but is also generally accepted within legal doctrine. As Fiedler writes in his article for the Encyclopaedia of Public International Law: It is not necessary, for the recipient State to have already been induced into taking action, from which adverse consequences would ensue, should the State having made the declaration later take the opposite view . . . Rather, it is sufficient if the declaring State has created a legally relevant situation of trust which in the specific circumstances of the case entails legally binding force.91 that it is the resultant expectation of an act or behaviour of a nation-state upon which reliance is placed by other nation-states, it helps us discard a not very satisfactory basis of obligation in international law, namely, the doctrine of consent’; Paul Reuter, Droit international public, 6th edn (Paris, 1983) 164: ‘Cette affirmation est basée sur le principe de la bonne foi et plus spécialement sur l’obligation de respecter les convictions que l’on fait naître par son comportement’;  Eric Suy, Les Actes Juridiques Unilatéraux en Droit International Public (Paris, 1962) 151: ‘Alors que l’offre doit être acceptée pour être obligatoire, la promesse l’est d’un moment ou elle est la base de confiance du sujet favorisé. C’est dans cette confiance dans la parole donnée que trouve le fondement de validité de la promesse’; similarly Venturini, ‘Actes unilatéraux’, n 70 above, 402–03; Alfred Verdross and Bruno Simma, Universelles Völkerrecht: Theorie und Praxis, 3rd edn (Berlin, 1984) 430, para 670. Despite classifying the effect as a ‘notion d’estoppel’ (in our eyes this is incorrect, see pp 195–96), see also B Bollecker-Stern, ‘L’affaire des essais nucléaires francais devant la Cour Internationale de Justice’ (1974) Annuaire Français de Droit International 299, 330, for whom the protection of ‘la confiance sucitée chez les autres Etats par la declaration unilatérale’ is the reason ‘qui empeche son auteur d’une part en contester la valeur juridique, d’autre part de la retirer arbitrairement’; similarly Jörg P Müller, Vertrauensschutz im Völkerrecht (Cologne/Berlin, 1971) 112 and Jürg Leutert, Einseitige Erklärungen im Völkerrecht – Ein Beitrag zur Lehre vom Vertrauensschutz (Diessenhofen, 1979). 90  ICJ, Nuclear Tests (Australia v France) (1974), n 6 above, 268, para 46, emphasis added. 91   Fiedler, ‘Unilateral Acts’, n 89 above, 1021.

204  The Law on Promises Further down in his article, Fiedler even goes a step further when he says that: it is sufficient that the recipient State has the possibility of taking notice. This condition follows from the good faith principle, as only on this basis can a situation of trust be created. It is not in fact necessary for the third State to develop this trust.92

So although we have concluded that it is the protection of trust and confidence placed on a declaration by the addressee which is the reason to hold a state to its word and, hence, for the assurance to be binding, a state’s promise will reach this status without the addressee having reacted and, at least according to the above statement, even without requiring him to have actually developed any trust. Sicault also positions himself against the necessity of ‘actual reliance’, when he explains his understanding to be as follows: La confiance dont il s’agit ici n’est pas, en effet, la confiance effective des destinataires de la promesse (reliance) mais la confiance qu’ils doivent pouvoir avoir dans le caractère obligatoire de la promesse.93

It is not effective, or actual, reliance which is thus said to be protected, but according to Sicault, it is the confidence that the addressee(s) ‘must be able to have’ in a promise as being binding. Robert Kolb has been cautiously supportive in respect of this approach, which he characterised to mean that: il suffit que l’acte soit susceptible d’une confiance abstraite, c’est-à-dire que compte tenu des circonstances, tout autre sujet de droit international ou tout destinataire plus particulier ait pu légitimement, de bonne foi, tabler sur la déclaration telle qu’elle a été faite.94

It is hence only the ‘abstract confidence’ which, in this opinion, forms the basis of an international legal obligation. In other words, the faith which an addressee must be able to place, and not the faith that it is in fact placing, on a declaration is supposed to make it binding, the overall goal being to stabilise international relations. This solution, however, is, in this writer’s opinion, not convincing. Despite rightly identifying trust and confidence placed on a declaration as the basis behind good faith, which allows a state   Ibid 1022, emphasis added.   Sicault, ‘Engagements unilatéraux’, n 70 above, 684. (It may be translated as ‘This confidence is, in effect, not the addressees’ actual confidence (reliance) but the confidence which they have to be able to have in a promise’s binding character). 94   Kolb, La bonne foi, n 5 above, 335, emphasis added, and continuing: ‘C’est peut-être avec ce critère qu’un équilibre aussi idéal que possible entre liberté et stabilité est atteint’. (My translation of the quotation: ‘it is sufficient that the act is open to abstract confidence, that is to say that, with regard to the circumstances, every other subject of international law or every specific addressee could reasonably, in good faith, have relied on the declaration as it has been made’). 92 93



Legal Basis for the Bindingness of Unilateral Promises  205

to be held to its word, by discarding effective reliance as being of import­ ance, its logic assumes a declaration to be binding even where no effective reliance exists, simply because somebody could have relied on the statement in question. But while it is one thing not to require actual and positive proof of the addressee’s reliance on a unilateral assurance received, it is something else to consider a declaration to be binding, even where reliance is not assumed to exist. The point is that reliance which is not there, even if labelled abstract (confidence) as it could have existed, does not require protection in order to stabilise international relations; ‘good faith’ cannot and need not protect faith which does not exist.95 Were the opposite held to be true, we could again end up with a situation that was criticised above and was rightly dreaded by Rubin,96 a situation in which a declaration is construed as restricting a state’s freedom of action against its present will, even though the states concerned warrant no protection as they are not relying and do not count on the declaration made. That the addressee’s actual non-reliance is of considerable impact is in line with the finding of numerous authors that where an addressee either expressly or by conduct rejects a state’s promise, the declarant will no longer be bound vis-à-vis that state.97 For Suy this is the result of clausula rebus sic stantibus, but it is simply the logical consequence of basing a declaration’s binding character on the principle of ‘good faith’: with no faith being placed on a declaration by the state(s) addressed and benefiting from it, the foundation for a 95   Venturini, ‘Actes unilatéraux’, n 70 above, 402–03 rightly remarked that ‘le caractère obligatoire de la promesse doit présupposer que ces destinataires ont confiance en cette promesse, en un mot, qu’ils se fient à elle’. 96   Rubin, ‘Unilateral Declarations’, n 24 above, 11. 97   See Jean-Paul Jacqué, ‘A propos de la promesse unilatérale’ in Melanges offerts a Paul Reuter (1981) 327, 340: ‘Dans le cadre de l’analyse de la Cour, si la promesse trouve son fondement dans la confiance légitime que les Etats doivent s’accorder, le bénéficiaire peut fort bien renoncer à tout moment à la protection que lui accordait le droit international. Mais tant que cette renonciation n’est pas intervenue, la promesse doit être maintenue’; despite arguing for abstract reliance, see also Kolb, La bonne foi, n 5 above, 335: ‘Ou bien il pourra se libérer par voie de révocation unilatérale parce que personne ne se sera fondé en confiance sur son acte’; see also Suy, Actes unilatéraux, n 89 above, 151; Venturini, ‘Actes unilatéraux’, n 70 above, 402–03, as the passage already cited in n 95 above reads in full: ‘L’attitude de ces mêmes Etats [the addressees] prend une importance certaine, étant donné que le caractère obligatoire de la promesse doit présupposer que ses destinataires ont confiance en cette promesse, en un mot, qu’ils se fient à elle’. Within the ILC, see, eg Simma, ILC, 2593rd Meeting, n 63 above, para 68, according to whom ‘other States could refuse such a “gift” if they did not want it’. See also the citation of a state representative within the Sixth Committee as provided by Victor Rodriguez Cedeño, Third Report on Unilateral Acts of States, UN Doc A/CN.4/505 (2000) para 65: ‘It was unimaginable that a unilateral act would have legal effects in the relations between its author and another subject of international law if the latter had raised objections’. Contra Rosenstock, ILC, 2593rd Meeting, n 63 above, para 72, for whom ‘the other party was irrelevant as to whether there was a commitment’. For the scenario in the Nuclear Tests cases and the interpretation of the Court’s ruling, see p 116 et seq. If the Court’s precedent is followed, the ‘misinterpretation’ of the declaration as not being specific enough to be binding might form an exception, as ‘constructive’ reliance will be enough. For the problem this approach causes for the declarant, see p 128.

206  The Law on Promises promise’s bindingness necessarily collapses.98 Where a state displays its non-reliance upon an assurance, there is no reason to hold the declarant state bound to its words should it change its mind. This effect, however, is incompatible with an explanation which founds a declaration’s binding force on ‘abstract confidence’. Because, as the latter opinion holds actual reliance to be unnecessary for a declaration to be binding, then why should its absence suddenly be of any effect on the statement made? The ‘missing link’ which explains a unilateral declaration’s bindingness once declared and in the absence of the addressee’s reaction is therefore to be sought elsewhere. To recall, without reliance there is no reason why a state should be compelled to adhere to its wording on a ‘good faith’ basis. Yet, the ICJ (and commentators agree) stated that an addressee does not have to react and display its reliance in any way in order for the assurance to have its compelling effect. However, if a promise is rejected, it will no longer be binding upon the promisor vis-à-vis the promisee. What this means is that the legal order in fact presumes that the addressee will place and is placing reliance upon a promise the very minute it has been received. Not only is presumed reliance the key to explaining a promise’s legal feature, but such a presumption is in addition adequate in light of the actual communication, which typically takes place between the promisor and the promisee(s). Through a promise, the addressee receives a declaration which, legally speaking, is always strictly beneficial for it, as it is granted a right with only the declarant state undertaking a new obligation. The latter, furthermore, unlike when making an offer, does not ask for an acceptance (which, in gratuitous offers where no quid pro quo is requested, is in practice reduced to nothing but an open display of reliance), but instead declares its intention to establish an undertaking as unconditional and effective at the moment it is communicated; the addressee is therefore not even asked to react. Where state A, for example, declares that it will henceforth refrain from drift-net fishing or will open a canal to all foreign vessels, it makes sense to assume that the states informed of this declaration will rely on it, even though they remain silent. Based on this assumption of trust and confidence being placed on the declaration received, the statement becomes binding upon the declarant the minute it is made. Yet, where the addressee expressly or by conduct rejects the assurance received, the presumption is rebutted and the declarant state is no longer faced with an interest in need of being taken into account, protected and weighed against free revocation, should the promisor change its mind. Hence the above-declared effect according to which an assurance that has been rejected is no longer binding, ie can be taken back at will. What this means is not that effective reliance, as such, is discarded as important, but only the display of reliance in the form of any   See also Jacqué, ‘Promesse unilatérale’, n 97 above.

98



On the Intention to be Legally Bound  207

positive reaction, as the addressee’s actual reliance on a statement which is beneficial and not rejected is presumed to exist. Only this interpretation allows the basing of a promise’s bindingness on ‘good faith’ while at the same time requiring no reaction from the addressee. It is worth pointing out that by focusing on reliance as protected by ‘good faith’ in order to explain a promise’s binding force, legal doctrine does not sacrifice a promise’s unilateral character.99 While it is true that via reliance an aspect of ‘bilaterality’ is introduced,100 it in no way diminishes the qualification of the binding act as being unilateral, since the legal relationship is, and remains to be, brought about only through a single manifestation of will. This, and nothing else, is what the term ‘unilateral act’ means.101 That there is at least one more state within the picture is clear from the outset, as any legal relationship presupposes at a minimum two actors, and a promise or assurance, as every act of communication, an addressee. As stressed in defining a unilateral act, it is not labelled unilateral because it is muttered by a state to itself. The question merely is whether a single manifestation of will triggers an immediate legal effect, or whether it calls for and needs to encounter a second manifestation of will, ie an acceptance, in order to do so. Since promises are binding as such and as a single act of communication102 vis-à-vis the addressee, they are part of the overall category of unilateral acts of states. They nevertheless need to be adhered to on account of the trust and expectations which they have created, as the latter are legally protected under the doctrine of promises in international law. IV  ON THE INTENTION TO BE LEGALLY BOUND

The basis of a promise’s bindingness has been identified to reside not in the declarant’s intent to undertake an obligation but in the addressee’s 99   As Sacasa, ILC, Summary Record of the 2695th Meeting, UN Doc A/CN.4/SR.2695 (2001) para 32 emphasises: ‘At all events it seemed correct to say that the bilateral nature of the relationship did not affect the unilateral character of the act’. See also Venturini, ‘Actes unilatéraux’, n 70 above, 403: ‘Une condition de ce genre [ie reliance or trust], évidement différente d’une acceptation, puisque la déclaration unilatérale suffit à créer des obligations juridiques dans le cas concret’. 100   See Fiedler, ‘Unilateral Acts’, n 89 above, 1021: ‘The establishment of trust presupposes at least a second subject of international law. To this extent it is justified to speak of a specific reciprocal relationship’. 101   See pp 40–41. 102  Indeed, even from a completely trust-centred approach which rejects the focus on ‘manifestations of will’ and criticises dealing with promises under the heading of unilateral acts, such as Müller, Vertrauensschutz, n 89 above, 112, a promise can be referred to as ‘unilateral’ and understood as a different form of inter-state relations than those established through a treaty undertaking, as it remains possible to differentiate between the acts of communication which are necessary in order to establish trust as a basis for the legally binding obligation. Whereas a treaty relationship requires back-and-forth communication, a promise is valid as a single communicative act, announced to the addressee in order to create legally protected, ie legitimate, reliance.

208  The Law on Promises legitimate reliance upon a promise made – reliance that is presumed to exist unless the promise is rejected. To find that the law (presumes and) protects the addressee’s reliance on a promise as legitimate thereby moves the spotlight towards the question inquiring which state declarations will actually be considered as constituting a promise under international law. Because only then will an addressee’s actual reliance on a pledge made also be legally protected as legitimate; and it is here where a state’s intention to be bound is of (some) importance. A  The State’s Manifestation of Will The question when a declaration may be considered and relied upon as a legally binding undertaking is answered by the ICJ and most scholars by referring to a state’s will to commit itself legally. For the ICJ it was clear that, ‘[o]f course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound’.103 And (only) where the state chooses to do so, is the declaration to be considered a legally binding undertaking: When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration.104

A promise has accordingly and in conformity with legal doctrine been referred to as a ‘unilateral manifestation of a state’s will to bind itself legally to follow a certain course of future action’ throughout this study.105 By focusing on a state’s manifested intention to undertake a legal obligation in defining statements which are legally binding, ie promises, a line is therefore drawn between ‘mere’ political statements, on the one hand, and legal undertakings, on the other. Where a statement is held to be one of mere intent, a political expression of a state’s future plan, that of its representative’s political dream or aspiration, any reliance on it and the expectations of its fulfilment will not be legally protected. In other words, and irrespective of whether an addressee has factually relied on such pledges, in the latter cases any request for the declaration to be fulfilled will remain unenforceable before an international court, and its ‘breach’ will not be sanctioned as a breach of a legal commitment (ie not lead to a state’s legal  ICJ, Nuclear Tests (Australia v France) (1974), n 6 above, 267, para 44.   Ibid para 43. 105   For definitions see ch one, n 42. By including promises within the category of ‘unilateral acts’ of states, the understanding is expressed that they are manifestations of a state’s will which will have the legal effect their declarant apparently intended them to have, see pp 38–40. 103 104



On the Intention to be Legally Bound  209

responsibility and reparations or lawful countermeasures). The distinction which is known from the law of treaties, according to which ‘gentlemen’s agreements’ have long been set apart from legally binding commitments, just as political statements and declarations of intent nowadays are,106 therefore also exists in the realm of unilateral assurances. To concentrate on whether a state intended to commit itself legally in defining a statement as a binding promise is, of course, meant to protect the promising state’s sovereignty and allow it to decide for itself when its future freedom of action is going to be limited through a new legal commitment. While an understandable aim, there should be no doubt that it cannot always be fully achieved, because how is the declarant’s intention going to be detected? According to the ICJ, ‘the intention is to be ascertained by interpretation of the act’ and in recalling the ICJ cases depicted in chapter two,107 it is important first to note what the ICJ has not done when interpreting the act: it has not simply asked the declarant what its intentions were when it made its declaration, nor has it used other means, such as the disclosure of internal documents, in order to ascertain what the state might have actually intended yet not openly expressed, at the time it made its statement. Instead, the Court has emphasised that it had to form its own opinion and, in interpreting the declaration, has relied upon its ‘substance’ and thereby particularly its text,108 and the information that was openly available to it just as to the addressee at the time, as circumstantial evidence: ‘It is from the actual substance of these statements, and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced’.109 Dogmatically speaking, the Court has therefore taken what many commentators have stressed is the only sensible approach in assessing a statement’s value, it has looked at the ‘declared intent’ or better ‘manifestation of a state’s intent’ (as circumstances in which a statement is made will also play a role), rather than searched for the possibly hidden ‘actual’ intention the declarant had at the time.110 Not only will the latter be 106   Providing an overview and addressing the ‘parallel’ questions for the law of treaties, Jan Klabbers, The Concept of Treaty in International Law (The Hague/Boston/London, 1996) especially 15 et seq, and on intent 65 et seq. 107   Especially its Nuclear Tests cases, as discussed at p 116 et seq, the Frontier Dispute case, discussed at p 156 et seq and the Armed Activities on the Territory of the Congo case, discussed at p 169 et seq. 108   For more see p 211 et seq. 109  ICJ, Nuclear Tests (Australia v France) (1974), n 6 above, 269-–70, para 51; see also ICJ, Frontier Dispute (Burkina Faso v Mali), Merits, Judgment of 22 December 1986, [1986] ICJ Rep 554, 574, para 40: ‘In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances in which the act occured’ and ICJ, Armed Activities on the Territory of the Congo, Jurisdiction and Admissibility (2006), n 40 above, para 49. 110   See especially Sicault, ‘Engagements unilatéraux’, n 70 above, 648 et seq; also Thomas M Franck, ‘Word Made Law: the Decision of the International Court of Justice in the Nuclear Test Cases’ (1975) 69 American J International Law 612, 616–17; Kolb, La bonne foi, n 5 above, 335–36 ; Suy, Actes unilatéraux, n 89 above, 149; Goodman, ‘Acta Sunt Servanda?’, n 67 above, 56–57.

210  The Law on Promises difficult to ascertain (nobody knows what a human being, much less a state as an abstract and composite legal entity, really and actually intended when making a statement),111 but inner motives and motivations must be largely112 irrelevant, where a legal framework attempts to stabilise trust in statements made and needs to adjudicate upon conflicting interests resulting from an act of communication issued by one state and relied upon by another. Otherwise, even the clearest statement expressly voicing a state’s decision to enter into a legal obligation could not be trusted, as upon closer analysis, it could be unmasked by the declarant as not having been made with an actual intention to undertake a legal commitment at the time but for other reasons, be it just to appease or fool the addressee. For trust and security to be placed in international declarations, such an ‘apologist view’113 would be unacceptable; statements made will therefore have to be judged according to their appearance and at face value. The latter, of course, is not limited to the declaration’s wording but includes the context and the surrounding circumstances in which a statement has been made. While necessary, this shift in perspective to the outside world and the eyes of the reasonable addressee as assumed by the Court, however, entails the (for the declarant rather unwelcome though unavoidable) consequence that a declaration may come to be held to express an intent the declarant never actually had. Where a court (or the addressee) determines to ‘see for itself’ what a state intended when making its declaration, the outcome of its assessment might not be in line with what a state actually intended, especially where a state’s intentions are inferred from its actions. The fact that in these scenarios a declaration made is interpreted as a manifestation of a will to be bound, although and irrespective of the fact that it did not actually exist, means that in all these case the manifested will is reduced to nothing but a mere legal fiction;114 a fiction that is, however, upheld in order to protect the trust and confidence placed on a declaration by its addressee as legitimate. With this in mind, it is misleading to label a state’s intention to be ‘an important condition of validity’ of a unilateral promise,

111   For this question in respect of treaties see again Klabbers, Concept of Treaty, n 106 above, 65 et seq, particularly at 69 et seq. Klabbers stresses that the English maxim according to which ‘not even the devil knows what is inside a man’s head’ was a useful point of departure and that we are hence ‘not looking for “subjective” intentions, but for “manifest” intentions’, see ibid 69–70. Since treaties require recourse to the intentions of not only one but at a minimum that of two states, there the picture is even more complicated. 112   The declarant’s provable and fundamental error as specified in Vienna Convention, Art 48 for treaties and within the limits prescribed by that Article, is, however, likely also to be accepted as an exception for promises, see pp 237–39. 113   To use the terminology of Koskenniemi, From Apology to Utopia, n 63 above. 114   See the analysis of the ICJ’s judgment rendered in the Nuclear Tests cases at p 123 et seq and particularly the text to ch two, n 172.



On the Intention to be Legally Bound  211

as is sometimes done.115 Strictly speaking, this is not the case, as the interpretation of a statement by a court might not reflect the declarant state’s actual state of mind when making the statement. While the law, by focusing on a state’s manifested intention to be legally bound, thus tries to ensure that the expectations raised by a declaration in the addressee are legally protected only where a state also intended to undertake a legal obligation, this aim cannot always be fulfilled. Such a discrepancy between outside interpretation and actual intention is likely to appear in scenarios in which the ‘promising state’ has acted malevolently, recklessly or negligently by making statements which, in light of their circumstances and wording, may (reasonably) be understood as expressing a legal commitment. It is, however, not limited thereto if the rules according to which an assurance is judged are unclear and only elucidated after the declaration has already been made (France arguably underwent this experience in the Nuclear Tests cases). Determining the legal framework and the exact standard of interpretation applied to state pledges is hence of pivotal importance in order to protect states from being taken by surprise by misreading their announcements. The interpretative rules will thus inform not only the addressee of when it may rely on a declaration made, but also the declarant as to when its actions will be understood as legally compelling. The clearer the legal canvas is on which state declarations are judged, the less likely will it be for a state to see trust that was placed on its declaration also be protected as reasonable in a case where it actually had no intention of becoming legally bound (malevolent, reckless and negligent cases aside). After all, a state will usually have intended what (under a clear interpretative standard) are simply the ‘natural consequences’ of its actions when they are interpreted as a manifestation of a will to be legally bound. Elucidating the standard of interpretation applied to unilateral declarations of states in order to ascertain whether or not an intention to be bound has been manifested is therefore of central importance. B  Ascertaining a Legal Intent to be Bound What then are the rules of interpretation applied to declarations of states by the ICJ and legal doctrine? While it is clear that only statements made by a competent state representative will qualify as a legally binding 115   See, eg Kolb, La bonne foi, n 5 above, 333, for whom ‘l’intention n’est qu’une condition d’existence de l’acte juridique unilatéral, non le fondement de sa validité’. Suy, Actes unilatéraux, n 89 above, also speaks of ‘la volonté de promettre’ as being a ‘condition’. Both authors, however, subsequently make it very clear that they are not actually considering a state’s intention to be the condition of a promise’s bindingness but only the finding of a state’s manifestation of will. The latter may, however, be found to exist even where the declarant did not actually intend to commit itself but acted in a manner which led the reasonable addressee to assume otherwise, see Kolb, La bonne foi, n 5 above, 335–36; for Suy, Actes unilatéraux, n 89 above, 149.

212  The Law on Promises promise,116 the question remains which ones will be taken to constitute a ‘manifestation of will’ to be bound in the sense just elaborated. In drawing on the analysis provided by the Court and discussed in chapter two, the territory is not fully mapped, but neither is it uncharted. The following can be said. (i)  Restrictive Interpretation To begin with, the question needs to be addressed whether the ILC was right to assume that the ICJ has opted for a restrictive standard of interpretation to be applied when the scope of a legal obligation resulting from a declaration is assessed, and not already during (or in addition to) the preceding assessment of whether a declaration has triggered a legal obligation in the first place. As will be recalled,117 the Guiding Principles are in fact silent in respect of the interpretative standard to be applied during the first initial stage, asking ‘if’ a will to be bound has been manifested. Yet, Guiding Principle 7, second sentence, says that where ‘the scope of the obligation resulting from such a declaration’ was in doubt, ‘such obligations must be interpreted in a restrictive manner’. In explaining its finding, the ILC has referred directly to the ICJ whose dicta in the Nuclear Tests cases are used as support. But the Court actually said the following: Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a particular matter with the intention of being bound – the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.118

Although slightly ambiguous, the quotation, in the eyes of this writer, argues for a restrictive interpretation to be applied to ‘phase one’, ie when assessing whether or not a legal obligation exists. Despite the fact that the ICJ in the Nuclear Tests cases has been criticised for not having in fact applied a very restrictive approach in this matter,119 in the above quotation it nevertheless announced that ‘the intention [of being bound(!)] is to be ascertained by interpretation of the act’, a finding that is immediately followed by a call for a restrictive interpretation. As already seen in chapter two, the ICJ has in addition in its later rulings (ie Military and Paramilitary Activities in and against Nicaragua,120 and especially the Frontier Dispute121 116   Here the ICJ and the ILC have been very clear and have left little room for doubts as to which rules will apply, for more see p 234. 117   On the Guiding Principles see pp 183–94. 118  ICJ, Nuclear Tests (Australia v France) (1974), n 6 above, 267, para 44. 119   See especially the dissenting opinion of Judges De Castro and Barwick, as presented amongst the separate and dissenting opinions of the Nuclear Tests cases, discussed at p 132 et seq. 120   See p 151 et seq. 121   See p 156 et seq.



On the Intention to be Legally Bound  213

and Armed Activities on the Territory of the Congo122 cases) in practice interpreted state declarations restrictively. In all these cases, however, it has done so when conducting the initial determination as to whether or not a state has manifested a legal intention. The ILC in its Commentary nevertheless cites not only the Nuclear Tests cases in support but also points to the ICJ’s finding in the Frontier Dispute case, according to which great caution has to be used by the interpreter where a declaration has no particular addressee.123 In fact, however, this case is the clearest in respect of both the standard of interpretation announced and that actually applied by the Court: caution was used by the ICJ not in dealing with a declaration which had already been found to include a legally binding commitment, the scope of which had to be ascertained, but instead when evaluating whether the declaration of Mali’s Head of State was, as such, a legally binding statement. As will be recalled, the Court established its cautious approach after having referred to its Military and Paramilitary Activities judgment, where it: was unable to find anything in that communication ‘from which it can be inferred that any[!] legal undertaking was intended to exist’ [reference to the Military and Paramilitary Activities case omitted]. The Chamber considers that it has a duty to show even greater caution when it is a question of a unilateral declaration not directed to any particular recipient.124

If the ILC is to be taken seriously in its references to the Court’s jurisprudence, it is therefore more likely than not (possibly on account of the rather rushed attempt to present some conclusion on the topic at the end of its quinquennium) that it drafted its second sentence too narrowly.125 The resulting (rather odd and in part redundant) structure of the Principles (which then address how to interpret a declaration and evaluate its legal bindingness in Guiding Principles 1, 3 and 7) will nevertheless remain as a problem for future interpretation. For the latter, the emphasis should remain rather on the ICJ’s jurisprudence than on the ILC’s wording, as the Commission has made it very clear that it intended to be following the Court. Accordingly, a restrictive interpretation will have to be applied when ascertaining whether a state intended to bind itself legally, which in practice means that in cases of doubt, triggered especially by ambiguous and unclear wording, no legal intention can be assumed to have been expressed.   See p 169 et seq.   ILC, Guiding Principles with Commentaries, n 46 above, Commentary to Principle 7, para 2. 124  ICJ, Frontier Dispute, Merits (1986), n 109 above, 574, para 39, emphasis added. 125   See also Tomuschat, ‘Unilateral Acts’, n 43 above, 1505, emphasising that ‘[u]nder such circumstances, full technical accuracy cannot be expected’. 122 123

214  The Law on Promises The ICJ in the Frontier Dispute case, as just cited, has in addition emphasised that it was necessary to ‘show even greater caution when it is a question of a unilateral declaration not directed to any particular recipient’. The underlying reason for the argument of the need to be particularly careful in these scenarios has apparently been that the resulting obligation, once found to exist, would, as in the Nuclear Tests cases, be an erga omnes obligation. Yet, it should be said that while it is sensible to assume that states are reluctant to undertake an obligation vis-à-vis the entire ‘international community‘ (which is presumably to be understood as all states and international legal actors possibly concerned), the underlying restrictive interpretation could, of course, have led the Court to find that the declaration in question was not in fact directed to ‘no particular recipient’. Instead, it could have assumed that a declaration which is made on a subject matter which is of direct concern only to a limited number of states (or possibly even only one state as, for example, Burkina Faso in the Frontier Dispute case) is reasonably to be understood as being directed only to the state(s) directly involved. The Court, however, took this approach in neither the Frontier Dispute case nor the Nuclear Tests cases; even though in the latter case, it stressed that the French declarations had to be seen in connection with the proceedings instigated by New Zealand and Australia. Consequently, at present, a declaration that does not directly address and thereby identify its beneficiary, but is instead made openly to the mass media, will trigger the Court’s heightened scrutiny, as it is understood to have been directed to the whole international community. As such it will, more often than not, qualify only as a political statement. (ii)  Interpreting a Declaration’s Text While therefore assuming a restrictive, and for potential erga omnes declarations an additionally ‘cautious’ approach, the question remains as to when a state can nevertheless be taken to have manifested its intent to commit itself legally. According to the ICJ in the Nuclear Tests cases (see above text to n 109), the intention to be bound will be deduced from a declaration’s actual substance as well as the circumstances surrounding its making. In Armed Activities on the Territory of the Congo, the Court spoke not of a declaration’s ‘actual substance’ but its ‘actual content’,126 and it is a declaration’s ‘content’ which has to be taken into account also according to the ILC’s Guiding Principle 3.127 However, and irrespective of whether we concentrate on a declaration’s ‘actual substance‘ or its ‘content’ (‘actual’ or not) in order to decipher a state’s declaration, a problem is bound to arise which Tomuschat, in addressing Guiding Principle 3, has identified as follows: 126  ICJ, Armed Activities on the Territory of the Congo, Jurisdiction and Admissibility (2006), n 40 above, para 49. For more see p 169. 127   See p 183. For the text of Guiding Principle 3, see Annex II.



On the Intention to be Legally Bound  215 It is remarkable that Principle 3 refrains from directing the reader to the text of a declaration as the primary source for ascertaining its meaning, but focuses on the ‘content’ which, of course, will have to be elucidated first.128

Indeed, neither a declaration’s ‘content’ nor its ‘substance’ are openly identifiable but will themselves have to be ascertained via an act of interpretation, which explains why both will be of little help in that very process. The Court, in Armed Activities on the Territory of the Congo, has provided the most transparent assessment of a declaration’s legal value so far. There, after having stated that it must examine ‘the actual content as well as the circumstances’ in order to determine a declaration’s legal effect, it continues by emhasising: On the first point [ie that of content], the Court recalls that a statement of this kind can create legal obligations only if it is made in clear and specific terms.129

‘Content’ therefore took the Court right to a declaration’s terms. Despite the reference to a declaration’s content or substance it is thus indeed its text which will be the primary focus of analysis in order to determine whether it is legally binding or not. Here, there can be little doubt that the wording used will have to be interpreted in accordance with its ‘ordinary meaning’ as is laid down for treaties in Vienna Convention, Article 31. As the declaration is an act of communication which will be taken into account and relied upon by the addressee, its interpretation cannot simply be based on the declarant’s perspective, for example, its special use of wording, unless the latter is known to the addressee and could hence be understood as deviating from its normal meaning. While the parallelism in interpreting the wording of a unilateral act and a treaty will therefore be strong, a statement’s unilateral character may nevertheless lead to some differences, as the ICJ’s holding in the Anglo-Iranian Oil Co case130 has illustrated. In it, both parties before the Court argued about the meaning of the Iranian unilateral declaration under ICJ Statute, Article 36(2). Irrespective of the fact that these unilateral undertakings might be governed by some lex specialis,131 the Court’s finding is of interest for all unilateral declarations, since it focused particularly on the unilateral character of the act. The Court found that it had to go beyond a purely grammatical reading of the declaration before it, as the latter brought no conclusion as to which of the two different interpretations adopted by the parties was correct. What the ICJ found it had to seek was an:   Tomuschat, ‘Unilateral Acts’, n 43 above, 1502, para 3.  ICJ, Armed Activities on the Territory of the Congo, Jurisdiction and Admissibility (2006), para 50. 130   See ICJ, Anglo-Iranian Oil Co (United Kingdom v Iran), Preliminary Objections, Judgment of 22 July 1952, [1952] ICJ Rep 93, as well as the more recent ICJ, Fisheries Jurisdiction (Spain v Canada), Jurisdiction, Judgment of 4 December 1998, [1998] ICJ Rep 432, 453, especially para 46 et seq, where the Court confirms its earlier findings. 131   See p 69 et seq. 128 129

216  The Law on Promises interpretation which is in harmony with a natural and reasonable way of reading the text having due regard to the intention of the Government of Iran at the time when it accepted the compulsory jurisdiction of the Court.132

The Court in addition emphasised that it had to interpret the declaration ‘as it stands, having regard to the words actually used’.133 While a ‘natural and reasonable’ way of reading the declaration has thereby been confirmed by the Court as guiding it, it also referred to the Iranian intention as having to be considered with ‘due regard’. In looking for a manifestation of a state’s will to be legally bound, it would, of course, lead us only in circles were we to first stipulate that the latter had to be ascertained on the basis of a declaration’s text, only to then declare that the text itself had to be interpreted in ‘light of a state’s intention’. Such an approach – as in fact proposed by the Special Rapporteur134 – has therefore rightly been criticised within the ILC and is nowhere to be found in the Guiding Principles.135 However, stressing the importance of a state’s intention has led the ICJ in the Anglo-Iranian Oil Co case to pay special attention to the circumstances in which the declaration was made (circumstances to which we will turn in a moment) while in addition slightly altering the rules of interpreting the statement’s terms. It is this aspect which merits some closer attention here. The United Kingdom had argued that if the Iranian interpretation was adopted, the declaration would contain superfluous wording, while ‘a legal text should be interpreted in such a way that a reason and a meaning can be attributed to every word of the text’.136 The Court, agreeing with the consequences which the Iranian interpretation would have for the text, however disagreed that such a reading should be eschewed: It may be said that this [the UK suggested] principle should in general be applied when interpreting the text of a treaty. But the text of the Iranian Declaration is not a treaty text resulting from negotiation between two or more States. It is the result of unilateral drafting by the Government of Iran which appears to have shown a particular degree of caution when drafting the text of the Declaration. It appears to have inserted, ex abundanti cautela, words which, strictly speaking, may seem to have been superfluous.137  ICJ, Anglo-Iranian Oil Co (1952), n 130 above, 104.   Ibid 105. 134   See Victor Rodriguez Cedeño, Fourth Report on Unilateral Acts of States, UN Doc A/ CN.4/519 (2001) para 154, Art (a), para 1: ‘A unilateral act shall be interpreted in good faith in accordance with the ordinary meaning given to the terms of the declaration in their context and in the light of the intention of the author State’; see also Victor Rodriguez Cedeño, Fifth Report on Unilateral Acts of States, Addendum, UN Doc A/CN.4/525/Add.1 (2002) para 135. 135   For criticism, see, eg Gaja ILC, 2695th Meeting, n 99 above, para 14. ‘In the light of the intention of the author State’ was no longer mentioned by the Special Rapporteur within his proposal on the interpretation of a unilateral act in his ninth and final Report, see Victor Rodriguez Cedeño, Ninth Report on Unilateral Acts of States, UN Doc A/CN.4/569 (2006) Principle 11. 136  ICJ, Anglo-Iranian Oil Co (1952), n 130 above, 104. 137   Ibid 104. 132 133



On the Intention to be Legally Bound  217

As unilateral acts will usually have been unilaterally drafted by the declarant,138 the result is that their terms will usually not be the result of long negotiations in which every word is debated, often redrafted and by this very process precisely determined. Such declarations may thus be redundant and not live up to the standard that is to be found in a treaty. However, and on account of a ‘natural and reasonable’ reading being attributed to a state’s use of words, the standard of interpreting the text of a unilateral declaration will, apart from that, not differ much from the standard applied to treaties.139 This being said, there is still another aspect where the two regimes will be different, because unlike in the case of treaties, in the case of unilateral declarations additional textual support cannot usually be gained from a declaration’s Preamble, its Annex or the travaux préparatoires.140 The Special Rapporteur felt differently, however, and sparked a debate on the question by proposing to lay down in a draft article that ‘the context for the purpose of interpretation of a unilateral act shall comprise . . . its preamble and annexes’. He also wanted to allow recourse to be taken, inter alia, to a declaration’s preparatory work as supplementary means of interpretation.141 But both propositions were not approved by the majority of ILC members,142 and for good reasons. Preambles and Annexes will usually be missing for unilateral declarations and there is thus no need to make special reference to them. In the rare event where they might be present, they can then be taken into account as part of a statement’s context. The problem posed by a declaration’s 138   An exception may be found at p 88 et seq where the declarations on the protection of minorities were drafted not by their declarants but by the League of Nations and then passed on to the various states in order to be proclaimed by them as their own unilateral undertaking. 139   As Tomuschat has emphasised for declarations under ICJ Statute, Art 36(2): ‘Thus, if there is any departure form the general rules of treaty interpretation in international law, the distance can only be slight’, Christian Tomuschat, ‘Commentary to Art. 36 ICJ Statute’ in Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm (eds), The Statute of the International Court of Justice: A Commentary (Oxford, 2006) 589, 627, MN 65. Of those states which replied to the ILC’s questionnaire some emphasised that the principles of interpretation were similar, such as Finland, Israel, Italy, El Salvador, the Netherlands and, to a certain extent, also Sweden (speaking of a useful guide). Argentina and Austria referred to the ICJ’s rulings which were mentioned above and the (slightly) different standard established therein; see the answers given to questions 1 and 7 by the respective countries, as published in ILC, Government Replies to the Questionnaire, n 2 above. 140   For treaties see Vienna Convention, Arts 31(2) and 32. 141   Cedeño, Fourth Report, n 134 above, para 154, Art (a) and (b). See also the largely recapitulative Fifth Report, Cedeño, Fifth Report, n 134 above, para 135, Art (a), para 1. 142   For criticism see especially Pellet, ILC, 2695th Meeting, n 99 above, para 5 et seq; also Gaja, ibid paras 16–17 and ILC, Report of the Fifty-fourth Session, A/57/10, n 12 above, in which the Commission’s debate on the Fifth Report is summarised, para 404 et seq. In response to the criticism voiced in the Commission, Cedeño’s Ninth Report and the principle of interpretation proposed therein contains no further such references, see Cedeño, Ninth Report, n 135 above, Principle 11 and the explanation provided by Victor Rodriguez Cedeño, Ninth Report on Unilateral Acts of States, Addendum 1, UN Doc A/CN.4/569/ Add.1 (2006) para 158.

218  The Law on Promises preparatory work is, on the other hand, more serious, as even where it exists, it will usually have been accessible and known only to the declarant and not the addressee. Were it therefore subsequently to be taken into account, for example during judicial review or simply to reassess a statement, declarations publicly made and apparently manifesting a will to be bound could still not be trusted as such, since ‘hidden evidence’ of a state’s intentions could come to light and threaten to reframe the statement made. As it is the reasonable addressee’s reliance which is protected under the doctrine of promises, meant to promote trust and confidence in state declarations, the preparatory work will hence have to be left aside, with the possible exception where it was easily accessible for those addressed.143 (iii)  ‘Clear and Specific’ Wording So far it has been found that a declaration will have to be interpreted restrictively, with the primary focus lying on its text, ie the wording ‘actually used’, interpreted in a ‘natural and reasonable way’. In doing so, the Court has emphasised that in order to be legally binding, a declaration will have to be made in ‘clear and specific’ terms.144 But when is this the case? To begin with the more clear-cut cases, a ‘reasonable’ addressee or a court will find it relatively easy to deduce a state’s intent to be bound from its wording, where it has gone as far as expressly addressing its intention to create a legal obligation. While such statements may be rare, the declaration of the British representative before the European Court of Human Rights (ECtHR) asking that court to identify the declaration as ‘constituting an undertaking possessing legal effect’145 shows that they may exist. The Egyptian declaration is another fairly clear-cut example in this regard, as it expressly spoke of ‘obligations’ and qualified itself as an ‘international instrument’, to be registered as such.146 Where a state includes express references to ‘legal obligations’, ‘undertakings with legal effect’, etc, there can be little doubt that its statement will be taken to have actually expressed its will to undertake a legal commitment. The ICJ and legal doctrine along with it have, however, gone beyond such scenarios and have not limited their focus to declarations which are expressly labelled as legal undertakings by their declarants. The Court otherwise could not have held the French statements or any of those made before it during proceedings to be binding, nor would its findings that a particular declaration before it was non-binding have warranted more than a single   As proposed by Gaja, ILC, 2695th Meeting, n 99 above, paras 16–17.  See especially ICJ, Armed Activities on the Territory of the Congo, Jurisdiction and Admissibility (2006), n 40 above, para 40 and ICJ, Nuclear Tests (Australia v France) (1974), n 6 above, 267, para 43, together with 269, para 51. See also Guiding Principle 7, first sentence, as already addressed at p 191 et seq. 145   For more see p 141 et seq. 146   For more see p 108 et seq. 143 144



On the Intention to be Legally Bound  219

sentence by which it was dismissed simply because it lacked any ‘selfcharacterisation’ as a legal commitment. As is typical for municipal and other areas of international law, there is therefore no need for the legal subjects to use legal terminology in order for their declarations to have legal effect, and to expressly identify their legal bindingness. While a declaration doing so will thus be understood as expressing a state’s intent, its absence will not, as such, be a hindrance to the consideration of a state’s nevertheless having manifested its will to be bound. It is therefore by no means a necessary requirement. There are additional textual indicators which, although not necessarily required, will also support the finding that a state has conveyed its intent to legally oblige itself to the reasonable addressee. Klabbers, in his dissertation on the concept of treaty, has analysed a few of these indicators in order to test whether a bilateral act will be taken to constitute a binding treaty or not.147 Although none of them were found to constitute a necessary or a watertight indicator, they are nevertheless of importance and are all likely to tilt the scale further towards a finding of legal bindingness where present. Here, there is no apparent reason why a finding that is important for the interpretation of a potential bilateral commitment will not have a similar impact if included in a unilateral declaration. To begin with, where a declaration speaks of its own ‘entry into force’, it more often than not will be taken to allude to its own legal nature, unless there is evidence to the opposite.148 Similarly, where a state’s declaration as to a certain future conduct allows for judicial settlement, it thereby includes a strong indicator that the pledges contained can be treated as legally effective, ie binding. Also, where a declaration includes remedies or allows for sanctions where it is breached, this, too, is a textual indicator of an intention to be legally bound.149 Yet, as can be inferred not only from the Nuclear Tests cases but practically every example in chapter two where a statement was found to be binding by a court, the minimum requirements for a statement to be ‘clear’ can be fulfilled without alluding to its own legal nature in the above way. What is apparently necessary, however, for a statement to qualify in this regard is, first of all, that it expresses a state’s unconditional decision to follow a certain line of future action. If we recall what has been stated in the UN memorandum on unilateral declarations against torture and other inhumane treatment written by the UN Secretariat,150 it stressed that they could not be taken as expressing a legal commitment, since states merely   Klabbers, Concept of Treaty, n 106 above, 68 et seq.   For the parallel treaty scenario see the quite critical analysis in this respect by Klabbers, ibid 75–77. 149   Where such assurances are followed by completely vague pledges, they will, however, be of little avail. For the parallel problematique in respect of treaties, see again ibid 77–78. 150   See pp 140–41. 147 148

220  The Law on Promises stated ‘their “intention” to comply and to implement, rather than indicate that they “will” or “undertake to” comply and implement’. According to this opinion, in other words, a legal commitment will only be deducible where a state has decided to act (or to refrain from acting) in a certain manner and indicates this through appropriate wording (ie ‘will’ do, ‘undertakes to’, although in the latter case there is, arguably, already evidence of an express reference to a legal obligation ‘undertaken’) and not where the action is merely ‘intended’. To make distinctions along these very precise lines is sensible in light of the fact that lawyers have developed a code on which to rely, and one that helps to distinguish legal undertakings from political statements in this regard. Be it in civil law contracts, legal texts or the law of treaties, precise wording is what lawyers will concentrate on first – for lawyers, a ‘shall’ will not be taken to have merely meant ‘should’, to name but one typical and fine yet fundamental distinction. A (state department) lawyer’s common ‘legal code’ will therefore be of importance in this area, particularly for prepared speeches and declarations and any written declaration notified, as the latter will be understood as having been carefully scrutinised and the words to have been chosen with care. Terms which indicate an unconditional decision such as ‘will’, ‘hereby ensure to’, or ‘shall’, ‘guarantee to’ or even ‘undertake to’, will therefore form a necessary requirement in order to assume a legal commitment and hold a statement to be ‘clear’ in this respect.151 The ICJ, and the ILC in its Guiding Principle 7, have, in addition, stipulated that a declaration must also be specific. Although the ICJ does not seem to have greatly differentiated between the two terms in the Nuclear Tests cases,152 it appears to have done so in the Armed Activities on the Territory of the Congo case, where it ‘recalled’ the requirement of a statement having to be made in ‘clear and specific terms’. A declaration will therefore not only have to be clear in that it announces a state’s firm decision to act in a certain way, but the conduct announced will, in addition, have to be sufficiently ‘specified’. In this respect, the ICJ has been shown to indeed apply a restrictive interpretation. As will be recalled, the Rwandese statement under scrutiny before the Court in Armed Activities on the Territory of the Congo was that ‘past reservations not yet withdrawn will shortly be withdrawn’. Although the Rwandese Minister of Justice had therefore used clear terms as to her country’s decision to do something (‘will be withdrawn’), this something was in the eyes of the Court not precisely 151   As seen, the ICJ in the Nuclear Tests cases simply avoided a precise analysis by considering the statements to constitute an artificial ‘whole’. On this basis it concluded that the declarations clearly conveyed the decision to move to underground testing. 152  ICJ Nuclear Tests (Australia v France) (1974) 269, n 6 above, para 51, where it found ‘[t]he objects of these statements are clear’, while it referred to legally binding declarations possibly and often being very ‘specific’ at 267, para 43.



On the Intention to be Legally Bound  221

enough determined to allow the statement to be understood as a legal commitment. As seen, the Court stressed that, in its opinion, the statement had to be understood as referring not only to the reservations made by Rwanda to the human rights treaties but to any treaty concluded. The restrictive interpretation surfaced again as the Court, apparently considering it highly unlikely that such a broad undertaking had been intended, on this basis moved to hold the declaration therefore to be of an ‘indeterminate character’. The time-frame incorporated was, in addition, found not to be sufficiently specific as it only stipulated that reservations would ‘shortly’ be withdrawn. In the words of the Court ‘the statement by the Rwandan Minister of Justice was not made in sufficiently precise terms in relation to the particular question of withdrawal of reservations’ in order for it to assume a legal undertaking. The statement could therefore ‘at most’ be interpreted as a statement of ‘intent, very general in scope’. As has already been emphasised when discussing the case,153 the ICJ could, of course, just as well have found the declaration to be (at a minimum) related to human rights treaties and the word ‘shortly’ to be indeterminate but not indeterminable. To refrain from determining the rather ambiguous in applying a restrictive approach, however, makes sense, especially where there are no other compensating factors, which strongly support a finding that a state nevertheless intended to establish a legal commitment. Otherwise, the ‘clear and specific’ standard would be rendered meaningless by the Court which, by filling in what has quite possibly been deliberately left vague, could move practically every declaration into the realm of legal bindingness. The precise undertaking would then, however, be crafted rather by the mind of the Court (or the addressee were it allowed to do so) than by that of the state which has made the statement. Under the restrictive approach, a ‘reasonable addressee’ will hence need to refrain from interpreting a vague announcement as being binding. Many declarations of states which are reported in the daily media will not meet the required threshold in this respect. Where states, as so often, pledge to ‘move forward’, to ‘respond to a threat’, to ‘fight against’, be it corruption, hunger or AIDS, to ‘improve their efforts’ or to ‘unleash the creative power of its best scientists, engineers and entrepreneurs’,154 the statements made simply do not contain specific enough undertakings. As politicians more often than not, in weighing their words, refrain from being precise, a clear announcement of a state’s future course of action will trigger particular attention. That it may in fact do so is thus confirmed and supported by the standard of interpretation applied to unilateral pledges of states.   See p 169 et seq.   In his speech US President Obama at the United Nations Climate Change Summit on 22 September 2009 announced that the United States: ‘will unleash the creative power of our best scientists, engineers and entrepreneurs to build a better world’, available at www. america.gov. 153 154

222  The Law on Promises Yet, a caveat is required. Even where a state has made a ‘clear and specific’ statement determining its future course of action, further legal analysis can come to conclude that the declaration may nevertheless not be relied upon as a legal undertaking. It may, for example, turn out to be truly a ‘mere witticism’ as Mali had in fact argued in the Frontier Dispute case, or an announcement of a domestic decision intended to remain a purely domestic matter, it can also be merely a state’s declaration of goodwill or a purely personal pledge of the state representative who made it. To differentiate between these and a state’s truly binding undertakings, the circumstances in which a declaration was made will be decisive. (iv)  Supporting Circumstances Even where a clear and specific statement in respect of a state’s future conduct is provided, there is, as just mentioned, still some room for uncertainty as to whether the declaration is to be interpreted as a truly legal undertaking; here, the circumstances in which it was made will be crucial, a fact that was stressed by the ICJ and also the ILC.155 The problem with any reference to the circumstances of a case is, of course, that a factual situation is usually not only complex but, in addition, unique and hence different every time. By addressing the ‘special circumstances’ in which a statement was made, a black box is therefore opened and with it the door to some quite possibly unforeseeable legal interpretation of a state’s declaration. Yet, on account of the complexities of social interaction, a precise and all-including description of the circumstances which will influence a ‘reasonable addressee’ in the evaluation of whether a declaration may be relied upon or not may not be expected. What can and should be provided is, however, an explanation of typical and influential factors, that will be factored into the assessment of whether a clear and specific decision as announced by the declarant can be relied upon as a legal undertaking in light of the circumstances of a case. In this regard, the Court’s jurisprudence draws attention to the following factors. When discussing how to interpret a declaration’s text, it has been pointed out that Preambles and Annexes will usually be lacking in unilateral declarations, but, where present, will of course be used in ascertaining the declarant’s manifested intentions. The same is true for accompanying statements which, where present, will necessarily form part of the wider context or circumstances in which a declaration was made, provided that they were furnished alongside or before the statement in question was made. The Court has made this point in relation to reservations made to declarations under Article 36(2) of the ICJ Statute: 155   See the references to the ICJ’s jurisprudence provided in n 109 above and the ILC’s Guiding Principle 3.



On the Intention to be Legally Bound  223 regard must be paid to the intention of the Greek Government at the time when it deposited its instrument of accession to the General Act; and it was with that jurisprudence in mind that the Court asked the Greek Government to furnish it with any available evidence of explanations of the instrument of accession given at that time.156

Besides ministerial statements and press communiqués the ICJ, again in addressing the scope of a reservation made to a declaration under Article 36(2), has in the Fisheries Jurisdiction case referred even to parliamentary debates and legislative proposals as explaining the intention the Canadian government had when making its declaration. In doing so, the Court, however, referred to material that was openly available and indeed known to Spain as the addressee in question; Spain had referred to the Canadian parliamentary debates in order to bolster its own interpretation of the Canadian reservation.157 Where such statements are openly made or internal discussions have become generally known, for example via the mass media, they will therefore be of importance as pertaining to the circumstances in which a declaration was made. As will be recalled, in the Armed Activities on the Territory of the Congo case, the Court’s finding did not hinge on the circumstances of the case, as it had already found the statement before it to be ‘indeterminate’. It nevertheless added that it found the ‘presentation of general policy on the promotion and protection of human rights’ before the UN Commission on Human Rights to corroborate its finding that what was proclaimed was not a legal undertaking. Despite the rather formal address given by the Minister, the overall character of the speech and the direct context in which the words under closer scrutiny were made, therefore signalled to the Court that the latter could not be relied upon as expressing a legal commitment. The ICJ can hardly be taken to have thereby announced that, in order for a certain passage to be found to constitute a legal undertaking, the whole text in which it is contained will have to convey an overall legal character; a legal undertaking can surely be included in an otherwise more general speech. Yet, where the speech is held and appears to be a ‘general policy presentation’, a statement will have to stand out in a particular way in order for it to be classified as different in character than the rest of the statements made. In the Frontier Dispute case, the declaration before the ICJ was clear and specific in that Mali’s Head of State had said that ‘if the Organization of African Unity Commission decides objectively that the frontier line passes through Bamako, my Government will comply with that decision’. The Court, however, did not analyse its wording, but jumped straight to the 156  ICJ, Aegean Sea Continental Shelf (Greece v Turkey), Judgment of 19 December 1978, [1978] ICJ Rep 1978, 3, 29, para 69, emphasis added. 157   See ICJ, Fisheries Jurisdiction (1998), n 130 above, 463, para 75.

224  The Law on Promises ‘factual circumstances in which the act occurred’158 in order to conclude as it did, ie that Mali could not be understood as having conveyed binding force upon the Mediation Commission’s conclusions through its statement, in light of the fact that it had already refused to do so in a treaty. The facts which have lead up to a state’s declaration are, of course, part of the context that will be taken into account. Where an ambiguous declaration interpreted as a unilateral undertaking would require the state to have changed its mind and now follow a new course of conduct, the standard will presumably be higher and a commitment much more doubtful, than where such an interpretation is fully in line with the recent signals sent out by that state. This cannot only be deduced from the Frontier Dispute case, but also from the North Sea Continental Shelf cases, where the Court said: In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the régime of the convention is to be manifested – namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way.159

Although no potential promise was involved in that case, the above principle is as important as clear: since Germany had participated in drawing up the convention that was open for ratification, its decision to refrain from doing so was apparent. That it had now changed its mind and wanted to become bound by the regime, but by alternative means, is of course possible, but improbable and hence could ‘not be lightly presumed’. In the Nuclear Tests cases, the ongoing judicial proceedings before the ICJ were of importance in judging the French declarations, especially as Australia and New Zealand had made it clear that they had never received a firm assurance from France in this matter. As the ICJ emphasised, the French statements had to be seen in this context, they ‘were not made in vacuo’.160 Apart from statements made in direct reference to an ongoing case, the courtroom setting has proved to be of particular import­ ance amongst the set of circumstances in which a declaration was made. It has, as such, allowed courts to assume a legal commitment rather easily where a declaration announcing a state’s future conduct has been made before them. Although the courts never elaborated upon the reasons for doing so, they obviously assume that a state representative must be aware of the attention paid to his or her words and therefore to have adopted  ICJ, Frontier Dispute, Merits (1986), n 109 above, 574, para 40.  ICJ, North Sea Continental Shelf, Judgment of 20 February 1969, [1969] ICJ Rep 3, 25, para 28. 160  ICJ Nuclear Tests (Australia v France) (1974) 269, n 6 above, para 50. 158 159



On the Intention to be Legally Bound  225

them with particular care, as a result of which they may be relied upon as firm commitments. The PCIJ has hence considered assurances to refrain from expropriation and nationalisation as ‘beyond question’ and ‘no doubt’ binding.161 The arbitration tribunal in the Filleting of Fish in the Gulf of St Lawrence arbitration162 applied the same approach, and while pointing to the importance of the ‘context’ in which they were made, ie the formal arbitration setting, concluded that they had to be considered as an engagement for France. It will be recalled that the ICJ in the La Grand case163 went as far as holding that: If a State, in proceedings before this Court, repeatedly refers to substantial activities which it is carrying out in order to achieve compliance with certain obligations under a treaty, then this expresses a commitment to follow through with the efforts in this regard164

and unanimously ‘took note’ of this commitment undertaken and held it to meet Germany’s request for a general assurance of non-repetition. In the case concerning Questions relating to the Obligation to Prosecute or Extradite,165 the Court, as seen, also referred to the statements made by Senegal as being ‘formal assurances’. A state representative’s clear and specific statement that its state intends to do or refrain from doing something in the future, if made during formal judicial proceedings, is therefore understood as expressing a legal undertaking. The importance attached to the formal courtroom setting emphasises another aspect which will surely be of importance in interpreting a declaration’s bindingness, which is that of formality in general. As shown, the ICJ has been clear, and the ILC has agreed, that no formal requirements exist for unilateral declarations, and that ‘whether a statement is made orally or in writing makes no essential difference, for such statements made in particular circumstances may create commitments in inter­ national law’.166 But this does not mean that the fulfilment or lack of form has no impact on the interpretation of state declarations as manifestations of their will to be bound. The fulfilment of formalities is not required in order for a declaration to give rise to a binding commitment, as ‘particular circumstances’ may underline its bindingness (eg having been made in the courtroom). Informal oral declarations are hence a quick and flexible mechanism, capable of creating full-blown legal commitments. Yet, a 161   See the Mavrommatis Jerusalem Concessions case, discussed at p 83 et seq and the Certain German Interests in Upper Polish Silesia case, discussed at p 85 et seq. 162   See p 155 et seq. 163   See p 166 et seq. 164  ICJ, LaGrand (Germany v United States), Merits, Judgment of 27 June 2001, [2001] ICJ Rep 466, 512–13, para 124. 165   See p 172 et seq. 166  ICJ, Nuclear Tests (Australia v France) (1974), n 6 above, 267, para 45. For more see ch one, n 25. See also the ILC’s Guiding Principle 5.

226  The Law on Promises heightened degree of formality, where present, will nevertheless still be indicative of a state’s intention that its declaration should be taken very seriously and, as such, be of importance in ascertaining a declaration’s legal value: a particularly solemn form of public proclamation, an official notification of a declaration to its addressee, or even the registration of a declaration with the United Nations (as in the case of Egypt’s declaration on the Suez canal) are thereby likely to be considered as part of the ‘factual circumstances’ which, similarly to the courtroom setting, will be of importance in assessing a declaration. The Egyptian case, in fact, raises the particular question as to what can be gained from the registration of a unilateral declaration.167 For treaties, the act of registration at the international level is usually considered to be an important indicator as to the required intent to be legally bound.168 Although Klabbers, in his analysis, draws the conclusion that it is not, as such, an ‘airtight indication’169 of whether or not an agreement reflects the parties’ intention to be legally bound, there is apparently no evidence of any document which was in fact registered nevertheless being perceived as lacking the required legal intention. What Klabbers illustrates, however, is that where registration is lacking, such non-registration cannot be taken as proving the absence of a legal intent. For unilateral acts, a similar conclusion can be drawn: as shown especially by the Suez Canal declaration, the registration of unilateral engagements with the United Nations is likely to be allowed by the Secretariat and, where registered, this very act, similarly as for treaties, will constitute an important factor indicating a state’s intention to be legally bound by that declaration. However, where registration is lacking, Klabber’s finding for treaties is all the more true for unilateral acts, where registration is very uncommon. Its absence will therefore not have the slightest (negative) impact when assessing whether a state has manifested its intention to become legally bound. The comparison between unilateral acts and the law of treaties in respect of formalities is of general interest, because although oral treaties are possible, they have apparently been of little impact in the past.170 The overwhelming majority of treaties dealt with by international lawyers are written and, as such, covered by the regime found in the Vienna Convention. The main reasons for this phenomenon are surely not only the fact that the content of written undertakings can more easily be proved, and that they can be undertaken with more precision (especially for long and complicated undertakings), but also that the fulfilment of formalities might in addition signify the document’s special, ie legal, 167   On whether unilateral declarations need to be registered under UN Charter, Art 102, see p 246. 168   See Klabbers, Concept of Treaty, n 106 above, 79 et seq with further references. 169   Ibid 84. 170   See also Tomuschat, ‘Unilateral Acts’, n 43 above, 1495–96.



On the Intention to be Legally Bound  227

importance. Formalities are usually time-consuming and a state will have, or can at least be understood as having, weighed its words more carefully when it has taken some additional steps; a written document officially notified to its declarant might for this reason be of some importance as such. Formalities thus warn the declaring state while informing the addressee that the statement made can be considered more reliable. It is true that an apparently carefully designed speech may have the very same impact, and with regard to assurances, oral declarations have been much more important than their written counterparts. Especially for declarations made erga omnes, intended for ‘to whom they may concern’, the oral unilateral undertaking is useful. However, the lack of formality is not a necessary characteristic of promises, where written undertakings are of course equally possible. Formalities are therefore not required, yet they may be of further indicative value in assessing a state’s intention to become bound. The last point in addition illustrates that whether a state representative has had the time to choose his or her words carefully and reflect upon their impact or not, will probably also influence the reasonable addressee, and hence the Court, in interpreting a statement which is ambiguous as to the required manifestation of intent. If we contrast a carefully crafted speech with an oral declaration made on the spur of the moment, as for example in response to an unforeseen question put forward in an interview, then provided it contains clear and specific wording, the former will be of greater impact. Where a statement is repeated numerous times and at the highest level, as in the Nuclear Tests cases, the state can also be taken to have considered its statement well (the Court, as seen, went as far as simply grouping the declarations together to form an artificial whole). The Ihlen declaration, too, is interesting in this regard.171 Notwithstanding the debate about its precise character (promise or offer) it was oral, yet is generally considered to have conveyed an intention to be legally bound. The fact that it is held to do so is in part connected to the fact that, although oral, it was by no means made on the spur of the moment. Minister Ihlen, instead, asked for some time to consider the matter, and only over a week later provided his response. (v)  Concluding Remarks on Interpretation The above paragraphs represent what can currently be said about the standard of interpretation applied to unilateral declarations in ascertaining whether they are state promises in international law. Although we may hope for further international jurisprudence to elucidate and build on the established principles (especially as the ILC has discontinued its 171

  See p 93 et seq.

228  The Law on Promises work), the present framework is not entirely devoid of appropriate guidance. Under it, states which intend to make use of a unilateral assurance, be it for one of the various reasons mentioned in the Introduction to this study, will be able to do so. They can expressly mark their declaration as a legal commitment through appropriate wording, even register it with the United Nations, or merely use very clear and specific wording, the importance of which is underlined by an appropriate context, such as a very solemn proclamation or an official notification. As always when having to interpret whether a declarant has manifested an intent to be legally bound, in the municipal civil law or the international context, and for consensual undertakings or unilateral ones, the result is a sliding scale. There will be relatively clear cases in which both wording and circumstances enforce each other, more ambiguous ones where contradictory signs have to be interpreted, and finally statements which clearly fall short of the required standard. In this respect, possible promises are not that exceptional. In addition, the restrictive standard that has been confirmed will be used by the Court has made it unlikely that a state will stumble into an unforseeable commitment without its at least having held itself out as intending to be bound, ie by having made a statement through one of its official representatives at the highest level or one specially empowered, that was clear and specific about a future course of action and directed to one or numerous states – a statement which, in addition, was made in a context that on account of its formality, or due to other circumstantial evidence, stressed the declaration’s importance and thereby allowed for a legal effect to be reasonably deduced from it. Where a declaration is made to the world at large, the ‘reasonable addressee’ will have to be even more cautious. Where, on the other hand, a clear and specific position is assumed as such and solemnly proclaimed, even under a restrictive standard of interpretation there is no reason not to take a state at its word. C  Distinguishing Promises and Offers The analysis of various declarations made in this study has repeatedly provided us with the opportunity to emphasise that only by ignoring the ‘realities of social interaction’ between the actors involved could the statement be identified as giving rise to a treaty commitment. Indeed, numerous scholars have stressed that to take note of the existence of unilateral and, as such, binding promises permitted a relinquishment of the completely artificial interpretation of offers and (usually tacit) acceptances in cases where this structure is not to be found in the interaction between the parties.172 For example, if we recall the declarations concerning the 172

  References provided at n 70 above.



On the Intention to be Legally Bound  229

protection of minorities as described in chapter two,173 the Estonian representative went as far as expressly stating that his declaration was not to be understood as giving rise to a treaty. Not surprisingly, the League of Nations, to whom the declaration was addressed, also did not speak of accepting an offer (which the representative said he had not made) but instead ‘took note’ of the undertaking, which hence had to be considered already to exist as such. Similarly, and in keeping with the memorandum signed at Moscow that it would ‘make a declaration in a form which will obligate Austria internationally’, the latter made a declaration in the form of a written notification to various states of its decision to remain permanently neutral. Although Austria asked for its new position to be ‘recognised’ and not to be ‘accepted’ by the states notified (and at least in the case of the United States there is proof that this was exactly how the request was understood, as the latter considered the legal effect which the unilateral act of recognition has under international law), some legal commentators still interpreted the scenario as giving rise to a treaty,174 despite thereby having effectively to redraft the state’s ‘inadequate’ wording. The driving force behind any such interpretation was apparently less what states actually did in the scenarios just described, but what scholars perceived them to be legally capable of doing. Imposing an entirely ‘bilateral mindset‘ onto reality, in which even one-sided legal commitments are brought about only through two ‘matching’ manifestations of will, meant that every scenario including a state’s manifested will to be legally bound had to be pressed into the treaty structure in order to become effective, as otherwise it would apparently have to be ignored. Since promises are by now accepted by the ICJ, the ILC and, generally speaking, international legal doctrine, as capable of obliging states in their international affairs, such forced treaty constructions, while never convincing, are in addition no longer necessary in order to adequately reflect an intent to be bound, despite not having been made as an offer that was accepted as such. What has, however, become necessary through legal doctrine’s acceptance of the existence of promises is to hold a unilateral undertaking in the form of a promise apart from a bilateral, consensual commitment, especially as different legal frameworks will subsequently apply. This is true not only at the international level, where a distinction between a promise and a treaty undertaking will be important, especially for the question of the commitment’s revocability, but it is likely to be of considerable impact also at the national level, where often no parliamentary involvement is required for a country’s executive to assume a new obligation by unilateral means.175 In interpreting a state’s manifested will to be legally bound,   See p 88 et seq.   See p 104 et seq. 175   For the situation in Germany where this is, for example, the case, see the holding of the German Constitutional Court as addressed at p 148 et seq. Denmark and Sweden adopted 173 174

230  The Law on Promises a promise will therefore need to be identifiable and held apart from an offer, which forms the gateway to treaty undertakings. At least in theory, an offer and a promise can be distinguished quite easily, since an offer is always only a conditional undertaking, the condition being that it requires the recipient’s additional manifestation of will, the acceptance, in order to oblige the declarant to do as offered. Where a statement expressly asks to be accepted, no problems in interpretation will arise. Similarly, an offer will be easily identifiable where, as is often the case, it is made with the intention to create an obligation not only for the declarant but also for the addressee, in other words, where it asks for a quid pro quo. Even where the latter is not openly requested, a closer analysis of the communication which has taken place between the parties might reveal an exchange situation and the existence of reciprocal under­ takings agreed upon in mutual dependence. If so, the declaration in question cannot be a promise. While in all these cases an offer is easy to spot, the situation is often more complex, as international law does not require the existence of a quid pro quo in order for a treaty to be valid as such; it is indeed nowhere mentioned in the Vienna Convention and treaties obliging only one side are deemed possible.176 But, if this is so, then it is also true for offers, in which only a one-sided obligation for the declarant is proposed. This is why and where the determination of whether a declaration constitutes a treaty offer or a promise can become tricky. On account of their different legal characteristics, the answer will, abstractly speaking, need to be found by highlighting the ‘realities of social interaction’ which have been referred to above; the question that has to be answered, in other words, is whether a state has manifested its will to undertake an obligation the moment its statement is communicated. Does it present the latter as a fact and a ‘given’ or does the declarant only propose a possible undertaking, the coming into being of which is put at the disposition of the addressee and is, hence, intended to hinge on a positive decision of acceptance? With these questions in mind, a few declarations that have been identified as unilateral assurances, ie promises, will be recalled. If we begin something like a ‘middle ground’ between complete non-involvement of the Parliament and full parliamentary approval. According to the Danish Constitutional Act, s 19 (3), ‘The Folketing [Parliament] shall appoint from among its Members a Foreign Affairs Committee, which the Government shall consult prior to the making of any decision of major import­ ance to foreign policy’, see the English translation available at www.eu-oplysningen.dk. Sweden’s Constitution requires parliamentary involvement only for the conclusion of agreements, but establishes an ‘Advisory Council on Foreign Affairs’ composed of the Parliament’s (Riksdag’s) Speaker and at present 18 members (nine full + nine deputy members) of Parliament, chaired by the King of Sweden. According to ch X, art 6, para 2, second sentence of the Swedish Constitution: ‘In all foreign policy matters of major significance, the Government shall confer with the Council, if possible, before making its decision’; see the English translation at www.riksdagen.se/templates/R_PageExtended____6327.aspx. 176   See ch one, n 149.



On the Intention to be Legally Bound  231

with the statement by the British representative before the PCIJ not to expropriate Mavrommatis, this pledge was presented as an unconditional fact: ‘there can be no question of our acting on any request to expropriate M Mavrommatis’.177 As such, it is not presented as a possible under­taking, which, as in favour of Greece, is left at the latter’s discretion. Britain will not expropriate Mavrommatis – period. The same is true for the statements made by the Polish representative in Certain German Interests in Upper Polish Silesia,178 where it was assured that certain properties would not be expropriated. Any such action was ruled out by the declarants through an unconditional statement, which the Court, without hearing the beneficiary’s position on the matter, interpreted as binding. The very same obligation could, of course, have been presented as an offer, but the declarants, apparently motivated by their wish to impress and influence the Court,179 chose not to do so. The German assurances under Nazi Germany180 were, of course, also not presented as an ‘offer’ not to attack and understandably none of the addressees appear to have been under the impression that such an ‘offer’ had to be accepted to become binding. Instead, Germany announced (and pretended) that an attack was out of the question and that the German decision never to attack was firmly established and as such assured. The Austrian declaration on neutrality has already been recalled, in which Austria similarly notified its neutrality as a given.181 It only asked for its recognition as thereby it would be provided with the advantages of its neutrality having to be respected by the recognising state, an effect that its unilateral undertaking alone could not have had. However, it did not ask for its declaration to be accepted in order for its permanent neutrality to become effective, a position which it had already domestically enshrined in a constitutional law. Egypt too, proclaimed its regime for operating the Suez Canal by depositing its unilateral document with the United Nations as in place and effective as proclaimed.182 In all these cases, the obligation is presented by the declarant and understood by the addressees to have already been adopted as an undertaking. There is not sufficient space to review all the examples that have already been discussed in chapter two, but the point should be clear: the question as to how to differentiate between a gratuitous offer and a promise is whether a state in its declaration announces a proposition that it is willing to follow only once accepted, or whether it announces an obligation as 177  PCIJ, Mavrommatis Jerusalem Concessions (Greece v Great Britain), Judgment of 26 March 1925, Series A 5, 6, 37. 178   See p 85 et seq. 179  For other reasons possibly motivating a state to undertake a unilateral obligation through a promise, see pp 6–10. 180   See p 101 et seq. 181   For more see p 104 et seq. 182   See p 108 et seq.

232  The Law on Promises thereby undertaken and presents the latter as such. Under this perspective, a declaration such as the Chinese pledge vis-à-vis the entire commun­ ity of states to ‘undertake unconditionally not to use or threaten to use nuclear weapons against non-nuclear countries and nuclear free zones’183 is clearly not an offer. And if one of these statements, to take the Japanese announcement to suspend drift-net fishing as another example,184 met with another state’s ‘We accept’, the reaction would indeed come rather as a perplexing surprise than as a required and expected response, the reason being that the acceptance has not been asked for by the declarant. If France declares that it will move to underground nuclear testing at a certain time, it does not ask Australia and New Zealand for their acceptance of this plan, nor does it therefore ask for an acceptance of this statement to be binding, once interpreted as an assurance, on account of it manifesting an intent to be legally bound. Of course, a beneficiary may indicate that it welcomes another state’s undertaking or that it considers it to be adequate to bring a conflict of interest to an end. Non-technically speaking, it might therefore ‘accept’ such a statement, but only as settling a matter or as welcome, yet it has no power to turn the statement made into an offer and by ‘accepting’ it, will not create a treaty relationship. Analysing what the declarant has proclaimed will allow for a distinction to be made as easily as in the examples described above in many, but not all cases. As with any field of law, there are the hard cases which need to be considered. The scenario in the Eastern Greenland case has highlighted an area where the call is a close one, and it has consequently given rise to ample debate.185 The PCIJ chose rather not to answer the question of the legal nature of the commitment before it, while scholars who have done so are split into two approximately equally sized, yet fundamentally opposed, camps. In chapter two, the ‘History of Promises’, this writer was able to refrain from providing an opinion on how the case should be decided, as there the emphasis lay rather on analysing the position taken by the Court and the response it triggered amongst scholars, in order to highlight the judgment’s importance in the development of the doctrine of promises in international law. At this point, however, an answer as to how to address such a scenario has to be found. By ‘such a scenario’ the following is meant. The reason why the characterisation of the Ihlen declaration still divides legal opinion is, first of all, that it cannot simply be identified as involving an offer, as it does not include a quid pro quo. It is (of course) not only the proponents of promises who accept this as a fact, but also the treaty supporters who follow Judge Anzilotti’s analysis. It will be recalled that Anzilotti, in his dissenting opinion, rejected the understanding according to which the declaration gave rise to a ‘Spitzbergen-Greenland 183 184 185

  For these so-called ‘negative security assurances’ see p 161 et seq.   As already referred to in Introduction, n 28.   For details and references see p 93 et seq.



On the Intention to be Legally Bound  233

deal’, yet for him it nevertheless constituted an agreement. If so, it was an agreement which imposed obligations only on Norway and none on Denmark. Those joining him in his analysis have placed special emphasis on the fact that the Ihlen declaration constituted ‘a reply’ in response to ‘a request’, as the Court has stated in its ruling. And indeed, when the above-stated examples of fairly clear unilateral promises are compared with the declaration made by Mr Ihlen and the situation in which it was given, the latter is exceptional on account of it forming an integral part of a bilateral negotiation. If we return to the relevant passage in the minute which recorded the dialogue and the statement made, it reads: The Danish Government is confident (he added) that the Norwegian Government will not make any difficulties in the settlement of this question. I replied that the question would be examined.

The Danish confidence expressed in respect of Norway’s future and uncertain course of action is nothing but a question posed by Denmark in this respect, ‘the request’, and equivalent to it asking directly: ‘Can we be sure that you, Norway, will not make any difficulties in the settlement of this question?’. This, in this writer’s understanding, was clearly not an offer, as Denmark was offering no sort of obligation on its part.186 It instead asked and thereby invited Norway to assume a clear position and even undertake a legal obligation in the matter. Norway’s representative then responded: ‘Today I informed the Danish Minister that the Norwegian Government would not make any difficulties in the settlement of this question’. The question for us is whether this answer was presented as an unconditional commitment by Norway, as a promise, or whether it conveyed the message that it was only made as dependent on the (continued) Danish acceptance. Here, the fact that the statement itself makes direct reference to the request (for the settlement of this question) and was declared only and directly to the country asking for Norway’s position (with no other audience), allows Ihlen’s statement to appear as a concession wholly motivated by the Danish request and adopted by Norway only if Denmark should still so require. On a closer look it is, therefore, in this writer’s opinion, indeed best classified as an offer, and not a promise, not to make any difficulties in the matter – just what Denmark had hoped to receive and hence, as signalled before, accepted. What is true for the Ihlen declaration, and made the assessment particularly difficult as it involved neither a clear-cut promise nor a clearcut offer, will be true for most ‘negotiated declarations’ directed solely at the negotiating partner after a back-and-forth communication has taken place. Similarly, in the case of written declarations and statements which include only a one-sided obligation (otherwise there is surely a consensual 186  On the offer-acceptance interpretation in this scenario, see the analysis provided at p 99 et seq.

234  The Law on Promises bond), but which are worked out (and possibly even signed) by more states than the one undertaking the obligation, the latter will usually have been adopted only under the condition of the beneficiary’s consent. If so, the obligation flowing therefrom is a consensual treaty undertaking rather than a unilateral promise. To conclude, most offers are hence easily discernible as such via the requested quid pro quo. Unilateral promises will similarly be often easily identifiable as such. In dealing with the ‘hard cases’ and in determining whether a declaration is really a promise and not a ‘gratuitous’ offer aiming at the conclusion of a treaty that obliges only the declarant, particular focus will have to lie on the actual communication between the parties. What has to be ascertained is whether or not the declarant has asked for its announcement to be accepted as such, and has made it clear that it intends an obligation to exist, only if and once the declaration is accepted by its addressee. Where this is the case, and the obligation undertaken is hence merely ‘proposed’ and left to be brought to life by the addressee, it will be an offer; if it is assured as a ‘given’ that will no longer be subject to debate, the declaration with the obligations included therein constitutes a unilateral promise. V  FURTHER REQUIREMENTS

For a declaration which manifests an intention to be legally bound to actually compel the state whose representative is making the statement, there are the following further requirements. A  Competent Representative As already briefly touched upon when addressing the ILC’s Guiding Principles, a declaration will first of all need to be imputable to a state in order to be able to constitute a legal commitment for the latter. As will be recalled, the state representatives considered competent and empowered under international law to compel their state through treaties, as enshrined in the Vienna Convention, Article 7(a), are also deemed competent to adopt legal obligations unilaterally for their states. It is furthermore generally accepted that a state may allow other personnel of its own choosing to do so. In this respect, the ILC’s Guiding Principle 4 is clear,187 following the ICJ’s wording in the Armed Activities on the Territory of the Congo case, which it reflects: 187

  See pp 185–86.



Further Requirements  235 the Court observes that, in accordance with its consistent jurisprudence [references omitted], it is a well-established rule of international law that the Head of State, the Head of Government and the Minister for Foreign Affairs are deemed to represent the State merely by virtue of exercising their functions, including for the performance, on behalf of the said State, of unilateral acts having the force of international commitments . . . The Court notes, however, that with increasing frequency in modern international relations other persons representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matters falling within their purview. This may be true, for example, of holders of technical ministerial portfolios exercising powers in their field of competence in the area of foreign relations, and even of certain officials.188

While this position has ample support,189 neither the Guiding Principles nor the ICJ have expressed an opinion on the question of how a lack of municipal empowerment and actual competence might affect the unilateral commitment proclaimed at the international level. Here, various scholars have argued that the provision found in Vienna Convention, Article 46 should be applicable, mutatis mutandis, to unilateral acts.190 According to that Article, provisions of internal law regarding the competence to conclude treaties, if breached, cannot be invoked to invalidate the consent given, with the exception of cases where such violation was manifest and, in addition, concerned a rule of internal law of fundamental importance.191 A similar, though not entirely parallel, provision for unilateral acts, which was not to be restricted to internal norms regarding only the competence to conclude unilateral acts but was to apply to all norms of fundamental importance, had been proposed within the ILC through the Special Rapporteur’s Second Report192 and, changed to be even broader, his Third Report. According to the latter, there were grounds to invalidate a unilateral act if it ‘conflicts with a norm of fundamental importance to 188  ICJ, Armed Activities on the Territory of the Congo, Jurisdiction and Admissibility (2006), n 40 above, 27, paras 46, 47. 189   Besides the ILC’s Guiding Principle 4, see also the answers provided by Argentina, Austria, El Salvador, Finland, Netherlands and Sweden to question 2 in ILC, Government Replies to the Questionnaire, n 2 above. 190   See, eg Skubiszewski, ‘Unilateral Acts’, n 11 above, 230; Sicault, ‘Engagements unilatéraux’, n 70 above, 658–59. 191   Vienna Convention, Art 46 reads: ‘(1): A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. (2) A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith’. 192   See the proposed Draft Article 7(7): ‘A State may invoke the invalidity of a unilateral act: . . . 7. If the expression of a State’s consent to be bound by a unilateral act has been in clear violation of a norm of fundamental importance to its domestic law’, Victor Rodriguez Cedeño, Second Report on Unilateral Acts of States, Addendum, UN Doc A/CN/500/ Add.1 (1999) 9.

236  The Law on Promises the domestic law of the State formulating it’.193 Various Commission members, however, rightly stressed that such a wide concept, allowing fundamental municipal legal provisions to penetrate deep into the international sphere and cancel any commitment undertaken, was untenable.194 Besides not referring to norms relating to competence, the Third Report did not even mention a ‘clear’ violation, as the Second Report had done. In his Ninth Report, Cedeño proposed a draft article which mirrored the Vienna Convention more closely, as it required a manifest contradiction in conflict with a norm of fundamental importance.195 Cedeño nevertheless retained the broader approach referring to all fundamental norms of domestic law in this respect and not only to those regarding competence. However, it is not only international lawyers with a dualist world view who should reject such a construction, as it would require an addressee of a unilateral act to delve into the provisions of the declarant’s national law, even if only its fundamental, ie constitutional provisions, and to ascertain whether the declarant has acted in contradiction of any of them. What may be a relatively clear-cut procedure for fundamental norms of competence will become quite complex if all norms of fundamental importance (including, for example, fundamental rights which usually allow for a balancing procedure on a case-by-case basis) are to be included. To reduce the necessary ‘screening’ to be undertaken by the addressee only to a lack of competence is therefore reasonable, especially where it remains limited to a finding which is ‘objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith’, ie where such a contradiction is ‘manifest’ as defined in Vienna Convention, Article 46(2). Where a representative is competent according to this standard and represents his or her state, it should be his or her task and not that of the addressee to ensure that the commitment undertaken is in conformity with its municipal provisions. As seen above in discussing the Guiding Principles, the proposed article has not been adopted by the ILC. In light of the criticism voiced within the Commission for good reasons, the proposals to adopt a parallel approach for unilateral acts, such as the one taken by the Vienna Convention in respect of treaties, is most convincing. 193   The proposed Draft Article 5(8) read in full: ‘A State may invoke the validity of a unilateral act: . . . 8. If the unilateral act formulated conflicts with a norm of fundamental importance to the domestic law of the State formulating it’, Cedeño, Third Report, n 97 above, 22, para 167. 194   See the doubts expressed by ‘most members’ of the Commission as summarised in ILC, Report on the Work of its Fifty-second Session, General Assembly, Official Records, Fiftyfifth Session, Supplement No 10, UN Doc A/55/10 (2000) 204, para 602. 195   See Guiding Principle 6: ‘A State that has formulated a unilateral act may not invoke as grounds for invalidity the fact that the act conflicts with its domestic law, unless it conflicts with a norm of fundamental importance to its domestic law and the contradiction is manifest’, Cedeño, Ninth Report, n 135 above, 2. No definition of ‘manifest’ (as included in Vienna Convention, Art 46(2)) was, however, proposed.



Further Requirements  237

This finding notwithstanding, it should be noted that at least at present, any norm referring to the municipal regime and its regulations in respect of the competence of a state representative can have only little practical impact, because, as already stated, such regulations are to our knowledge lacking in most constitutions for unilateral undertakings. The Special Rapporteur did not put forward a parallel provision to Vienna Convention, Article 47 (according to which specific restrictions on the authority of a state representative need to be notified in order to become effective), stressing that the unilateral nature of the act and the absence of any negotiating parties rendered it meaningless in that area. However, in the rare (but not impossible to conceive) event that a parallel scenario should arise and a specific restriction on a representative’s authority was imposed, the requirement of a restriction having to be notified in order to be opposable will, on account of the good faith basis of such undertakings, surely apply. B  No ‘Defective’ Will That a state’s manifested will to be legally bound needs to be free of any ‘defects’ and will, mutatis mutandis, be subject to the same grounds of invalidity as those which are applied to a state’s manifestations of will to be bound by a treaty is widely acknowledged.196 And rightly so, as there is no reason why a state obliging itself, for example, under the impact of an error within the (strict) limits laid down in Article 48 of the Vienna Convention or procured through the corruption of its representative (Article 51), should be treated differently than a state which has consented to the very same obligation in a treaty. Generally speaking, there is no significant difference between a manifestation of will giving rise to a treaty obligation and a unilateral promise in this regard. The Special Rapporteur, consequently, began by proposing a draft article on the matter in his Second Report.197 The provision, with some alterations and new proposals, reappeared in his Third,198 196   See, eg Jean d’Aspremont Lynden, ‘Les travaux de la commission du droit international relatifs aux actes unilatéraux des états’ (2005) 109 Revue Générale de Droit International Public 163, 183; Degan, ‘Unilateral Act’, n 70 above, 187–88; Fiedler, ‘Einseitige Versprechen’, n 86 above, 59; Goodman, ‘Acta Sunt Servanda?’, n 67 above, 58 ; Sicault, ‘Engagements unilatéraux’, n 70 above, 666–68; Skubiszewski, ‘Unilateral Acts’, n 11 above, 230, para 46 and Suy, Actes unilatéraux, n 89 above, 149. See also the replies to question 1 in the questionnaire circulated by the ILC that were given by Argentina, Israel and Sweden (Vienna Convention as a useful guide) and the statement made by the Polish representative in the Sixth Committee who stressed that ‘Since the consent to be bound by a treaty and the consent of a unilateral commitment were both expressions of the will of State, it seemed logical that the same reasons for invalidity should apply’, as cited by Cedeño, Third Report, n 97 above, 19, para 135. 197   See Draft Article 7, Cedeño, Second Report, Addendum, n 192 above, 9, para 109. 198   See Draft Article 5, Cedeño, Third Report, n 97 above, 22, para 167.

238  The Law on Promises Fifth199 and then, finally, Ninth Reports,200 where through the omission of some new propositions, and the inclusion of some further refinements, which included the distinction between void and only voidable unilateral undertakings, it came to closely mirror the Vienna Convention’s Articles 48 to 53. Grouped together under one over-arching principle with six paragraphs, the Ninth Report’s Guiding Principle 7 hence read as follows: Principle 7 – Invalidity of unilateral acts 1. (a) A State that is the author of a unilateral act may not invoke error as grounds for declaring the act invalid, unless the act was formulated on the basis of an error of fact or a situation that was assumed by the State to exist at the time when the act was formulated and that fact or that situation formed an essential basis of its consent to be bound by the unilateral act. (b)  The foregoing shall not apply if the author State contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of the possibility of such an error. 2.  Fraud may be invoked as grounds for declaring a unilateral act invalid if the author State was induced to formulate the act by the fraudulent conduct of another State. 3.  Corruption of the representative of the State may be invoked as grounds for declaring a unilateral act invalid if the act was formulated owing to the corruption of the person formulating it. 4.  Coercion of the person who formulated a unilateral act may be invoked as grounds for declaring its invalidity if that person formulated it as a result of acts or threats directed against him or her.201 5.  Any unilateral act formulated as a result of the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations is invalid.

The last paragraph (6, here omitted) dealt with an act infringing ius cogens and thereby with the only subject matter which was subsequently included within the ILC’s Guiding Principles, as Principle 8. To put in writing that acts infringing ius cogens are void was quickly accepted as posing no obstacle within the Commission; however, unlike paragraphs 1 to 5 of the proposed article, it does not relate to the question what impact a state’s defective will might have, as it prohibits a legal effect actually willed by a state, but which infringes a norm of paramount international law. None of the above cited provisions listing the grounds that might 199   See Draft Article 5(a)–(h), Cedeño, Fifth Report, Addendum, n 134 above, 9, para 119 as corrected by Victor Rodriguez Cedeño, Fifth Report on Unilateral Acts of States, Corrigendum, UN Doc A/CN.4/525/Add.1/Corr.2 (2002). 200   Guiding Principle 7, Cedeño, Ninth Report, n 135 above, 2–3. 201   Here the proposed principle was wider than Vienna Convention, Art 51, as it would allow a state to decide whether or not it intends to invalidate an act formulated by its coerced representative.



Further Requirements  239

vitiate a state’s will were, however, adopted in the ILC’s final Principles. The lacunae in this regard are regrettable, as there are good reasons and indeed broad support for the application of the above-depicted grounds of invalidity. But the ILC’s decision to refrain from adopting a Guiding Principle on this aspect should not be over-emphasised, as it was probably rather the absence of legal dicta from the ICJ, coupled with a lack of time to find a consensus on the newly refined principle, rather than fundamental opposition to the grounds of invalidity proposed, which led the final Working Group not to dwell further on the matter. Although the above-cited principle therefore does not have the Commission’s blessing and has not been shaped with complete precision by a drafting committee, it nevertheless comes very close to an adequate solution in this area by mirroring the Vienna Convention. C ‘Publicity’ The ‘publicity’ of a unilateral act is regularly referred to as a special requirement for it to be legally valid, and promises would hence have to be made ‘publicly’ in order to oblige their declarant. For Suy, for example, and writing before the Nuclear Tests cases, promises, besides being subject to the general requirements, had to fulfil two criteria: they had to manifest a will to be legally bound, and they had to be made public: ‘la publicité de la promesse’ was hence a condition for it to be legally binding.202 For the ICJ in the Nuclear Tests cases, similarly: ‘[a]n undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding’.203 Whether a declaration necessarily has to be made ‘in a manner observable by or in a place accessible to the public’ (as the Merriam-Webster Online Dictionary204 defines ‘publicly’), in other words ‘openly’, is, however, more than doubtful. Why should a declaration made by one state representative to another behind closed doors fail to become binding, where made with the requisite intent? The number of those who have or could have witnessed the act can hardly be decisive in this regard; just as treaties may be concluded in closed sessions, there is no reason not to allow a promise which has been made in a similar manner to become legally binding, or even one made by written yet non-public notification. For the manifestation of will to become binding, the requirement should only be that the declarant has communicated its statement to the addressee, and nothing more. But returning to Suy, this, surprisingly, is (approximately) what he meant 202 203 204

 Suy, Actes unilatéraux, n 89 above, 149.  ICJ, Nuclear Tests (Australia v France) (1974), n 6 above, 267, para 43, emphasis added.   See www.merriam-webster.com/dictionary/publicly.

240  The Law on Promises when speaking of ‘publicity’, which he explains as requiring the declaration to be brought to the knowledge of at least those states vis-à-vis whom the engagement is undertaken.205 Whether the legal framework should concentrate on the actual knowledge of the addressee might (and will in a moment) be questioned, but it is important to begin by confirming that, at least for Suy, no ‘open’ publication of the declaration was necessary for it to have been made ‘publicly’. As already seen in chapter two, the Swiss Federal Department of Foreign Affairs equally saw no problem in finding a statement made directly to another state and not before the eyes of the general public to meet the requirements imposed by the term ‘publicly’, when it wrote: ‘Concerning the promise’s publicity, it is necessary that it is made known to those to which it is of direct interest, be it through a diplomatic note or in the event of a discourse’.206 While this assessment, which confirms the binding force of a non-open declaration communicated to its addressee, is to be approved, it is rather odd to refer to the declaration’s ‘publicity’ in such cases. Not surprisingly, the question which term to use in this context surfaced within the ILC, and it did so as early as in the discussions on the Special Rapporteur’s First Report, in which Cedeño had referred to declarations ‘publicly issued’ as falling within the scope of his study.207 For Ian Brownlie: the criterion of publicity . . . was certainly relevant in terms of evidence and of the identification of those to whom the act was addressed. It was not, however, a necessary condition for the act to produce legal effects. Many declarations, for instance, between ministers of foreign affairs, were made in camera, but were nonetheless binding on their authors.208

Cedeño nevertheless retained the word ‘publicly’ in his Second Report, but described it as Suy and the Swiss Federal Department have done, to be fulfilled where the addressee ‘was made aware’ of the declaration.209 The Working Group convened that year again voiced its doubts on the use of the word and in its recommendation spoke instead of a statement 205  Suy, Actes unilatéraux, n 89 above, 150: ‘La promesse devra en outre être portée à la connaissance des Etats tiers ou, en tout cas, de ceux des sujets de droit envers lesquels elle comporte un engagement et qui sont intéressés directs: il faut que ceux-ci en aient connaissance. La promesse est donc un acte unilatéral soumis à réception’. 206   See p 147. 207   See the definition provided by Cedeño, First Report, n 12 above, para 170 and cited in ch one, n 3. 208   ILC, 2527th Meeting, n 71 above, para 15. See also Lukashuk, ILC, 2593rd meeting, n 63 above, para 49; Al-Khasawneh, ILC, Summary Record of the 2696th Meeting, UN Doc A/CN.4/SR.2696 (2001) para 9; Simma, ILC, Summary Record of the 2594th Meeting, UN Doc A/CN.4/SR.2594 (1999) para 60. Also Pellet, stressing that it was clear that ‘publicity’ was required only vis-à-vis the addressee, ILC, 2594th Meeting, para 20. See in addition the criticism by Tomuschat, ‘Unilateral Acts’, n 43 above, 1500–01. 209   See Victor Rodriguez Cedeño, Second Report on Unilateral Acts of States, UN Doc A/ CN.4/500 (1999) Draft Article 2, para 38 and Cedeño’s annotations thereto provided ibid para 55.



Further Requirements  241

‘which is notified or otherwise made known to the State or organisation concerned’.210 Cedeño in his Third Report then altered his course, but he went a step further by not focusing on the communication to the addressee, as had been proposed (ie ‘notified or otherwise made known’) but found a declaration to be a unilateral act, where it ‘is known’ to the addressee.211 The Commission was not satisfied212 with this new approach, and rightly so, as shifting the focus to the factual knowledge of the addressee in order to hold a promise (just as a waiver or an act of recognition) to be binding would only introduce a factor of uncertainty into the legal framework, as the moment of factual knowledge is usually not known to the declarant; the same would consequently be true for the moment at which the legal obligation arises. Focusing on actual knowledge would, in addition, include declarations which had not been actively communicated to the addressee by the declarant, but had become ‘known’ by other means, even by ‘espionage’ as a Commission member noted, whereas it was necessary that the state which was the author of the act took some steps to actually make it known to the addressee.213 Once these steps have been taken, ie the statement has been communicated, the declaration will have its effect. Despite this criticism, Cedeño’s unaltered proposal was forwarded to the drafting commission and left for the latter to deal with,214 which, however, apparently did not produce any result. In Cedeño’s Fifth Report in 2002, the criticised term (‘is known’) appeared again.215 The Working Group of 2003 remained unconvinced, as it chose to include no reference to a required communication of the act in its recommendation, which referred merely to ‘a statement expressing the will or consent by which that State purports to create legal obligations’.216 Cedeño, in his final Report, in a similar vein spoke simply of ‘a unilateral declaration formulated by a State with the intent of producing certain legal effects under international law’.217 That a declaration will nevertheless have to be communicated to the addressee was, of course, clear, yet strictly speaking there is no necessity to expressly stipulate an extra requirement in this regard, as without such action by the declarant, it will not actually have manifested its will to be legally bound on the international plane.218 A provision clarifying this   ILC, Report of the Working Group, UN Doc A/CN.4/L.588 (1999) para 11.   See Cedeño, Third Report, n 97 above, para 80. 212   See ILC, Report of its Fifty-second Session, A/55/10, n 194 above, 94, para 558 et seq. 213   Ibid para 559. 214   See Cedeño, Fifth Report, n 134 above, 12, para 50 and 18, para 81. 215   Ibid 18, para 81. 216   ILC, Report of the Chairman of the Working Group, UN Doc A/CN.4/L.646 (2003) 2, para 6, Recommendation 1. 217   Cedeño, Ninth Report, n 135 above, 1, Guiding Principle 1. 218   See also d’Aspremont Lynden, ‘Lest travaux’, n 196 above, 178–79, for whom: ‘Epurer la définition de l’acte unilatéral de toute référence a sa publicité ou la connaissance qu’en a le destinataire était donc raisonnable’, at 179. 210 211

242  The Law on Promises ‘requirement’ would, on the other hand, do no harm, especially as the common use of the word ‘publicly’ remains misleading. The ILC, however, in the end did the exact opposite. Casting aside the criticism that had been voiced, and ignoring the evolution which had taken place in the terminology, it simply went back to the very beginning and, focusing solely on the ICJ’s dicta, again referred to ‘declarations publicly made’ as capable of creating legal obligations in Guiding Principle 1. The ICJ in the Nuclear Tests cases was, of course, faced with public statements and where a statement is publicly made, it will meet the requirement of having been communicated to the addressee(s); but the Court did not say that only public statements manifesting a will to be bound would be binding. However, as even those authors for whom ‘publicity’ is a requirement in the end do not interpret it as necessitating a truly public declaration, but consider it to be fulfilled where a statement has been communicated to the addressee, there appears to be no real controversy in this regard. Appropriate wording would thus certainly have strengthened the Guiding Principles’ guiding character, but even with the ‘rather curious requirement’219 of publicity included, it appears to be generally understood and accepted that a state will only need to communicate its statement to its addressee(s) for it to become binding vis-à-vis those thereby addressed, be it in the open and truly publicly, behind closed doors or by a written and direct (ie ‘non-open’) notification. As Alain Pellet has said, with ‘publicity’, the matter was hence not one of substance, but merely one of terminology and there was ‘hardly any need to “broadcast” a unilateral act if it was intended only for the other State’.220   Tomuschat, ‘Unilateral Acts’, n 43 above, 1500.   Pellet, ILC, 2594th Meeting, n 208 above, para 20; also Brownlie, ‘It would be regrettable to use a term such as “public”, as had been proposed, because that would unjustifiably restrict the scope of the study. The fact that a declaration was public could be sufficient, but as practice currently stood, it was certainly not necessary’, ILC, Summary Record of the 2543rd Meeting, UN Doc A/CN.4/SR.2543 (1998) para 48. See in addition Fiedler, ‘Unilateral Acts’, n 89 above, 1022, according to whom ‘there is virtually complete agreement that an expression of intent by the declaring State alone is not sufficient, but that the declaration must be brought to the notice of the subject of international law concerned. If a rule of customary law had formed at all on the basis of juridical and State practice, then it merely requires appropriate disclosure to those concerned; it is sufficient that the recipient State has the possibility of taking notice’, emphasis added. See also Carbone, ‘Promise in International Law’, n 86 above, 170, who considers that a promise has to be ‘duly communicated by the promisor’; Charles Rousseau, Droit international public, vol I, Introduction et Sources (Paris, 1970) 424, finds the ‘reception par la bénéficiaire’ to be necessary; in this sense also Verdross and Simma, Universelles Völkerrecht, n 89 above, 427, para 665, for whom the declaration was ‘empfangsbedürftig’. Since focusing on the actual knowledge of the addressee in a definition is problematic as explained above, definitions which refer to a declaration having to be ‘brought to the knowledge of’ or ‘made known to’ the addressee (besides Suy, see, eg Charpentier, ‘Engagements unilatéraux’, n 73 above, 372: ‘officiellement portée – pas forcement par une notification – à la connaissance de son destinataire’, or Sicault, ‘Engagements unilatéraux’, n 70 above, 671: ‘il faut que l’engagement unilatéral soit porté a la connaissance d’au moins un autre sujet de droit international’) might be misunderstood, unless they emphasise that once communicated the declaration will be considered ‘known’ by the 219 220



Further Requirements  243

D  A Lawful (and Possible?) Object Two more requirements often appear in articles addressing the conditions for the validity of unilateral acts, both dealing with the object of the obligation undertaken: it has to be lawful as well as materially possible in order for the declaration to be valid.221 In terms of the undertaking’s lawfulness, Cedeño made numerous remarks in his reports,222 without however proposing a draft article. In illuminating ‘the lawfulness of its object and purpose’ referred to, Cedeño distinguished between two scenarios: in the first, a unilateral act was in conflict with a peremptory norm, ie ius cogens; in the second, it was incompatible merely with another, previously undertaken obligation, be it by an earlier unilateral or conventional act.223 How the first scenario should be legally treated appeared, and remains, fairly obvious in light of the broad consensus according to which any undertaking, conventional or unilateral, which infringes a peremptory norm must be void ab inito. Although, as seen, the ILC has confined itself nearly exclusively to the dicta of the ICJ, which has not covered this aspect, the position was generally accepted and, on account of it being uncontroversial, even made it into the Guiding Principles.224 With respect to the second scenario, in which the unilateral under­taking is incompatible with another undertaking previously adopted by the declarant, the situation is not as straightforward. For Cedeño, partly relying on Skubiszekwsi, this case too was apparently to be treated as invalidating the undertaking, which infringed the earlier obligation.225 Yet, as Sicault has argued,226 there is little reason not to treat the situation where addressee and legal doctrine will not, as the debate in the ILC has underscored, attempt to assess the moment of ‘factual knowledge’. Instead, the ‘possibility of taking notice’ (as Fiedler writes) of a declaration communicated by the declarant, will suffice. 221   See, eg Goodmann, ‘Acta Sunt Servanda?’, n 67 above, 54–55 who, relying on Dionisio Anzilotti, Cours de droit international (translation from the Italian by G Gidel, Paris, 1929), writes: ‘The second condition is an appropriate object of the unilateral act, for no manifestation of will can make good an object or purpose that is materially impossible or forbidden by law’. See also Krzysztof Skubiszewski, ‘Les actes unilatéraux des états’ in Mohammed Bedjaoui (ed), Droit international: bilan et perspectives (Paris, 1991) vol 1, 231, 242, para 44; Fiedler, ‘Einseitige Versprechen’, n 86 above, 59: ‘rechtliche und tatsächliche Möglichkeit der Erfüllung’; Suy, Actes unilatéraux, n 89 above, 149 speaking of an ‘objet approprié’. On the required legality of a unilateral act’s object see also J-P Jacqué, Eléments pour une théorie de l’acte juridique en droit international public (Paris, 1972) 161–62. See also the analysis provided by Sicault, ‘Engagements unilatéraux’, n 70 above, 661–64. 222   See, eg Cedeño, Second Report, n 209 above, para 53; Cedeño, Second Report, Addendum, n 192 above, paras 114–16; Cedeño, Fifth Report, n 134 above, paras 94–95. 223   Cedeño, Fifth Report, n 134 above, para 94. 224   See Guiding Principle 8. 225   See Cedeño, Second Report, Addendum, n 192 above, para 116; Skubiszewski, ‘Actes unilatéraux’, n 221 above, 242, para 44. 226   See Sicault, ‘Engagements unilatéraux’, n 70 above, 162, who rejects the position adopted by Jacqué, Eléments, n 221 above, 161–62.

244  The Law on Promises the fulfilment of a new undertaking is incompatible with an earlier one in the same manner as in the law of treaties.227 There, no special treatment for such undertakings is included and the new obligation is not declared invalid; a state, by undertaking an ‘incompatible’ new obligation, will hence have created a valid obligation. The fulfilment of the latter (or the former), however, will either directly infringe the other undertaking (eg where the earlier obligation was not to do something that is now done) or make it impossible for it to be fulfilled (eg where an action was promised that can be performed only once, like delivering a specific object). The resulting breach will, in both cases, therefore invoke the state’s responsibility vis-à-vis the state to whom the obligation breached was owed. Were the new obligation instead automatically invalid, as in the ius cogens scenario, the non-fulfilment could not trigger the declaring state’s responsibility, as an invalid obligation cannot be breached. In the ius cogens setting this result is indeed intended, as no state may rely on undertakings which infringe a peremptory norm, and any damage resulting from it choosing to do so will not be compensated. But where an earlier obligation is simply infringed, the scenario is (usually) very different, and treating a subsequent obligation as automatically ‘illegal’ and invalid would leave the state vis-à-vis which that new obligation was undertaken unprotected and unable to claim compensation. The better view, therefore, is to assume a parallel approach to that found in the Vienna Convention. A ‘new’ obligation, merely contradicting an ‘old’ one, will hence (usually) not be invalid. As the term ‘usually’ implies, in this author’s opinion there should (ie de lege ferenda) be an exception to the rule. The question must be raised whether there are other obligations which, once undertaken, also necessarily require any subsequent contradictory obligations to be invalidated, since the threatened breach cannot simply be left to be compensated by the principles of state responsibility. Obligations of fundamental import­ ance, where generally known to have been previously undertaken (eg where the treaty has been registered), should for this reason, even if not flowing from a peremptory norm, also render subsequent undertakings void. This might be true for obligations undertaken in order to protect individual human rights, and also for other undertakings which establish mutual obligations in sensitive security areas, such as for example the undertakings included in the Nuclear Non-Proliferation Treaty. Here, any obligation to compensate the damage caused by a subsequent breach will necessarily fall dramatically short of having a fully compensatory function for those directly involved. Therefore, where a state makes a promise which necessarily means that it will (and hence it announces that it is going to) breach such an obligation, this promise should be considered 227

  See also d’Aspremont Lynden, ‘Lest travaux’, n 196 above, 185–87.



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void. That a grain of instability would thereby be added to the system (already present via the ius cogens principle, the precise content of which remains difficult to ascertain) is true, as obligations having such a special status would have to be determined. But to determine the indeterminate is a task which lawyers have to perform every day. In the end, an addressee should not be able to successfully claim either the fulfilment of, or compensation for the breach of, an obligation which is in flagrant violation of eg a previously assumed human rights obligation of the declarant. Reliance on such undertakings should not be fostered by the international legal system. Besides having to be ‘legal’ it is sometimes stated that unilateral undertakings also require a materially ‘possible’ object in order to be valid. If mentioned, this aspect is presented as a ‘no brainer’, requiring little argumentative backing.228 Yet, it may be doubted whether it really is a logical requirement. Looking at the law of treaties, the latter does not declare undertakings which are impossible to automatically evaporate. Instead, Vienna Convention, Article 61229 identifies the problem as falling within its Part V, Section 3 and pertaining to the ‘termination and suspension of the operation of treaties’. There, the supervening impossibility of perform­ance will in the case of a ‘permanent disappearance or destruction’ of an object indispensable for the execution of the treaty, allow it to be terminated. The treaty is, hence, not automatically invalid. In addition, since the Article speaks of ‘disappearance or destruction’, a state which undertakes what is from the outset impossible will not be able to rely on paragraph 1. Under Vienna Convention, Article 61(2), even supervening impossibility of performance will not always allow the state to free itself from its obligations, as it may not do so where ‘the impossibility is the result of a breach by that party, either of an obligation under the treaty, or of any other international obligation owed to any other party to the treaty’. Unilateral undertakings that are from the outset impossible, yet promised by a state, could therefore be treated similarly and not automatically allow a state to terminate its undertaking. That the obligation cannot be fulfilled is clear, yet the existing obligation now breached (not 228   See, eg Sicault, ‘Engagements unilatéraux’, n 70 above, 661: ‘Il faut donc tout d’abord que la réalisation de ces droits et obligations ne soit pas matériellement impossible, car, si tel était le cas, l’engagement unilatéral serait dépourvu de validité juridique’. See also Goodman, ‘Acta Sunt Servanda ?’, as cited in n 221 above. 229   Article 61 reads as follows: ‘Supervening impossibility of performance’: (1) A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as ground for suspending the operation of the treaty. (2) Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty’.

246  The Law on Promises terminated) will allow the beneficiary to claim reparations. In the case of supervening impossibility, a state could, however, be allowed to free itself, unless the impossibility is brought about by the promising state itself.230 In order to allow for such nuanced differentiations, the question should not, in any event, be one of automatic invalidity but rather one connected to the possibility of terminating the obligation undertaken. As such, it could be held to be encompassed by the rule allowing a state to terminate or revoke its undertaking on account of a fundamental change of circumstances, as already accepted for unilateral undertakings,231 even though the Vienna Convention included its own specific article in this respect. E Registration? The registration of treaties is a duty under UN Charter, Article 102 for all UN members. According to the latter: Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.

But the penalty for its breach is not the voidability or even nullity of the agreement, which is a concept that was abandoned after the League of Nation’s demise.232 Under its paragraph 2, a non-registered treaty or international agreement instead may not be invoked by a party to it before any organ of the United Nations, which specifically includes the ICJ as one of the UN’s principal organs.233 Despite the fact that this sanction has apparently not been applied strictly in the realm of treaties,234 the question, as to whether unilateral declarations ‘shall’ also be registered under UN Charter, Article 102(1) may arise. As this duty exists for ‘every treaty and international agreement’ entered into by any member of the United Nations, the answer should be a straightforward ‘no’, as unilateral assurances simply do not constitute a ‘treaty or agreement’. Attention has, however, been drawn to the fact that the drafters of the Charter apparently considered ‘unilateral engagements of an international character which have been accepted by the State in whose favour such an engage-

230   Jacqué, ‘Promesse unilatérale’, n 97 above, 343 also contemplates an analogue application of Art 61. 231   For more on revocation see p 251 et seq. 232   Article 18 of the Covenant read: ‘Every treaty and international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered’. 233   See UN Charter, Art 7(1). 234   Klabbers, Concept of Treaty, n 106 above, 84.



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ment has been entered into’,235 as covered by this Article.236 This is rather surprising not only on account of its wording as such, but all the more so in light of the Article’s predecessor, Article 18 of the Covenant of the League of Nations, which had spoken of ‘every treaty and every international engagement entered into’. While the latter would have included promises as unilateral ‘international engagements’, the word ‘agreement’ now introduced makes any such subsumption more than difficult and strongly indicates the conclusion that under UN Charter, Article 102, no such obligation can exist. Although Klabbers may be right when, in briefly addressing the matter, he considers that ‘agreement’ was ‘a generic term’ intended to embrace all those ‘agreements that would possibly fall through the cracks if reference could only be made to treaties’,237 a promise simply is not an ‘agreement’, and it need not be ‘accepted by the State in whose favour it was made’, as the drafters envisaged.238 State practice, too, underscores this finding, as the registration of unilateral assurances is a rare event, with the Egyptian declaration being the one common example in this area.239 The latter shows that the registration of a unilateral declaration is possible and likely to be accepted by the United Nations; it is even desirable under the spirit of Article 102, as it will make commitments undertaken by states public. Any such action will, as mentioned, in addition be indicative and helpful in assessing a declarant’s actual intention to be legally bound.240 However, especially in light of the Article’s clear wording underscored by a lack of state practice or judicial decisions in this regard, a unilateral commitment does not presently need to be registered. In other words, not doing so is not ‘punishable’ under UN Charter, Article 102(2). F  Impact of the Addressee’s Reaction As will be recalled, the ILC in its Guiding Principle 1 considers that ‘[d]eclarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations’. This use of ‘may’ has been 235   UNCIO Docs, vol 13, Commission IV, 705, as cited by Michael Brandon, ‘Analysis of the Term Treaty and International Agreement for Purposes of Registration under Article 102 of the United Nations Charter’ (1953) 47 American J International Law 49, 53. 236   See Klabbers, Concept of Treaty, n 106 above, 82. 237   Ibid 82. 238   See in this respect Brandon, ‘The Term Treaty and International Agreement in Art. 102 UNC’, n 235 above, especially 53–54. See also the criticism voiced by Dehaussy and Mensbruegghe in respect of the Secretary General’s position that the term ‘agreement’ might be understood to cover unilateral engagements and also unilateral acts such as the Egyptian declaration, as cited in ch two, n 108. 239   Apart from declarations under the Optional Clause which have to be registered under ICJ Statute, Art 36(5). 240   See p 226.

248  The Law on Promises criticised above,241 especially on account of the fact that the Commission has provided no guidance as to the additional factors which are necessary for a promise to be binding, besides that of a state’s publicly manifested will to be bound. The ILC’s finding, so it was said above, is especially dubious as it claims to be ‘very directly inspired by the dicta in the Judgments handed down by the International Court of Justice on 20 December 1974 in the Nuclear Tests cases’.242 Yet, for the ICJ, statements ‘made publicly and manifesting the will to be bound’ actually are binding.243 Although the Commission chose not to offer any explanation in this regard, there are in fact conceivable scenarios in which the ILC’s finding will be correct, ie where a state makes a public statement manifesting an intent to be bound, but without the statement having the desired effect. The first scenario in which this will be the case (and here there will presumably be little opposition from the ICJ) is where the promised undertaking is incompatible with ius cogens, as already addressed above. Strictly speaking, the ILC’s ‘may’ is hence correct; such scenarios will, however, not only be rare but the Commentary provides no indication that it is only these cases which were meant. Statements made by an incompetent representative strictly speaking do not reveal a state’s intent and the same can be said where the statement is vitiated by error, fraud or other means. Guiding Principle 3 might, however, shed some light on an additional setting, where a declaration is considered ‘publicly’ made and manifesting a state’s will to be bound, but is still not binding upon the declarant, and which falls into the subject matter of this chapter: the reactions of the addressee(s). It will be recalled that Guiding Principle 3 elaborates that: To determine the legal effects of such declarations, it is necessary to take account of their content, of all the factual circumstances in which they were made, and of the reactions to which they gave rise.244

The Commentary refers directly to the Nuclear Tests cases, the Frontier Dispute case, as well as the Armed Activities on the Territory of the Congo and the Military and Paramilitary Activities in and against Nicaragua cases in order to support this proposition. And indeed, as elaborated above,245 the declaration’s content along with the circumstances of its making will play an important part in analysing whether the declarant actually manifested an intent to be legally bound. The reactions of the addressees have, however, not been mentioned by the ICJ in this regard and, of course, they can hardly be referred to in determining whether the declaration has   See p 188.   ILC, ‘Draft Articles on the Law of Treaties with Commentaries’, n 123 above, Commentary to Guiding Principle 1, para 1, first sentence. 243   See p 188. 244   Guiding Principle 3, emphasis added. 245   See p 211 et seq. 241 242



Further Requirements  249

manifested an intention to be bound or not. The addressee cannot turn a vague and ambiguous statement into one considered as clearly manifesting a legal will, nor vice versa. The reactions will only reflect how the addressees understood and interpreted the statement and reveal whether or not the statement was considered ‘welcome’ or not. The last two cases before the ICJ referred to above confirm this. In both the Frontier Dispute and the Armed Activities on the Territory of the Congo cases, the addressees claimed that the statements made manifested an intent to be legally bound, but the Court opined otherwise. This finding is all the more true if the Commentary’s reference to ‘reactions of other State’s concerned’ is not meant to be restricted to the beneficiaries of a statement addressed thereby. The Principle is drafted very broadly, as it directs attention simply to the ‘reactions to which they [the declarations] gave rise’. A state which has not been addressed may of course provide its opinion on a statement, but its position cannot have any impact on the undertaking’s legal effect. For the addressee, the situation is, however, slightly different. While it cannot influence whether or not a state has manifested an intent to be bound, its behaviour may have an impact where such an intention has been found to exist. The ILC has differentiated in the commentary between states taking cognisance of commitments undertaken, and states challenging or rejecting them, but there is, of course, another possibility, that of mere silence. Unfortunately, the Commentary only tells us that the reactions of states concerned are ‘important’, but does not indicate in which way.246 The answer to this question has, in part, already been provided when the basis of the undertaking’s legal bindingness was elaborated, but since the ILC mentioned the reactions (of the addressee) in the same terms as the content and the circumstances in determining a statement’s legal effect, there shall be no room for doubt left in this respect: To begin with, the ICJ has been very clear in stating that a positive reaction of the addressee is in no way required in order for the declaration to become binding, as ‘nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States is required for the declaration to take effect’.247 In other words, if the addressee remains silent and inactive, the statement, if manifesting an intent to be legally bound, will remain binding. Similarly, where the addressee chooses to ‘accept’ the declaration, this reaction will have nothing to add to the already binding nature of the unilateral undertaking. The ‘acceptor’ cannot turn the promise into an offer and, thereby, the undertaking into a treaty commitment, although the addressee, as stated, may of course welcome a statement and (non-technically speaking) ‘accept’ it as settling a dispute or the like. A positive reaction by the 246 247

  See p 189 et seq.  ICJ Nuclear Tests (Australia v France) (1974), n 6 above, 267, para 43, emphasis added.

250  The Law on Promises addressee going beyond a mere statement and consisting of reasonable actions made in direct reliance on the statement, might furthermore (as is addressed in more detail below) have an impact under the estoppel doctrine and impose additional restraints on a promise’s revocability.248 The third possible reaction, that of rejecting an undertaking, will, however, have a direct impact on the bindingness of the statement made – which in no way alters the finding of the ICJ that a reaction is not required for the statement to be binding. Since the bindingness of a unilateral undertaking has been grounded on the principle of good faith and, more precisely, the legitimate expectations raised in the addressee that the declarant will adhere to the word given, the basis for the act’s compelling nature has been described to necessarily collapse where the addressee displays that no such expectations exist. In other words, and as elaborated in more detail above, the presumption of trust, which explains how even with no reaction from the addressee a declaration may become binding, as the addressee will usually take it into account and rely upon it, is rebutted where a declaration is rejected by its addressee.249 The situation thereby becomes comparable to one where the state has only promised itself to do something. Should it change its mind, it will be allowed to act accordingly, in the absence of any reliance on the declaration being worthy of protection and requiring adherence to the promise given. Where a declaration is rejected, there can be no legal constraints on the statement’s revocation on a good faith basis.250 In summary: the addressee’s non-reaction has no impact; its ‘affirmative’ action, unless going as far as triggering an estoppel effect, adds nothing to the declaration’s binding nature; where its undertaking is rejected, however, the declaring state is not compelled to uphold what it has declared. G  Summarising the Requirements for a Legally Binding Promise The requirements to which a promise is therefore subject have been found to be the following: a declaration has to be a unilateral manifestation of will to be legally bound, made by a state’s competent representative and communicated to the addressee. It should not, as such, be subject to any defects, although amongst the latter not all will immediately result in the declaration being void, some only give rise to its voidability and leave the final decision to the state which has made the declaration. The undertaking must not, in addition, infringe ius cogens (and in this writer’s opinion any other obligation, known to have been undertaken by a state, which 248   For more on an undertaking’s revocability see p 251 et seq; on promises and estoppel see p 277 et seq. 249   See p 201 et seq, particularly pp 204–07. 250   For the peculiarities which allowed the ICJ in the Nuclear Tests cases to hold otherwise, see p 127 et seq.



The Revocability of Promises  251

is of ‘fundamental importance’ and as such should be interpreted as not tolerating the existence of a subsequent and legally valid contrary obligation) and it must not have been rejected by the addressee. VI  THE REVOCABILITY OF PROMISES

Once a legally binding undertaking has been identified, both the declarant and the addressee are likely to raise what is a core question to be answered in the law on promises, which is whether such undertakings may be revoked and, if so, subject to what kind of restrictions. A  Necessary Limitations Despite its being a legal question of pivotal importance, there is a lack of state practice and jurisprudence in this regard and scholars have not come to a consensus. Legal commentators, instead, offer the full range of possible answers to the question posed, including that of promises being ‘freely’ revocable.251 Skubiszewski, in a footnote to his finding that ‘as a rule, the State can modify or revoke its unilateral act at will and at any time’,252 at least unless general international law or treaty law imposed some barriers, in this context emphasises that: Revocability and modification should not, of course, be confused with the binding force of the unilateral act. [Internal cross-reference omitted]. The State may unilaterally give a legal undertaking without depriving itself of the right to terminate or modify it for some future time. The position has some analogy to that of the State which is bound by a treaty but retains the right to denounce it or to withdraw from it.253

And surely, revocability and modification should not be confused with a unilateral act’s binding force, as an undertaking can be considered ‘binding’, without thereby having to be irrevocable and unmodifiable for all future time. But, although not to be confused, it is, on the other hand, not to be ignored that the questions of a unilateral undertaking’s bindingness and its revocability are intimately related and interdependent. As has been said when discussing the basis of a state’s obligation assumed through a promise, once a state is considered able to revoke an under­ taking as it pleases and without external constraints, there will be nothing left of the act’s ‘bindingness’.254 The above-cited finding of a state’s power to revoke an undertaking ‘at will and at any time’ does therefore, and 251   As will be seen below, this position was also advocated within the ILC; see also Wilhelm Wengler, Völkerrecht (Berlin, 1964) vol I, 304 and especially 308. 252   Skubiszewski, ‘Unilateral Acts’, n 11 above, 234, para 64. 253   Ibid 238, note 50. 254   See p 194 et seq.

252  The Law on Promises despite the footnote arguing to the contrary, touch directly upon a unilateral act’s bindingness. In a legal framework in which a state may terminate its undertaking at will and at any time, it could at all times freely decide whether or not it presently has to adhere to the promise made; it would therefore not be ‘bound’ by what it has once promised, nor could its addressee trust that the behaviour promised would actually be performed. Revocation and bindingness therefore cannot be treated as two completely separate issues, and some limitations on the former as a result of the latter need to apply. Skubiszewski intends to overcome this problem by taking recourse to good faith, which could impose possible limits on a state’s power of revocation, since it speaks in favour of the maintenance of a state’s act which did not display the author’s intention of retaining its full freedom of action and where ‘another State relies upon the act in its relations with the act’s author’.255 But while the protection of expectations raised in the addressee has been identified above as the basis of the act’s legal bindingness, the assumption of free revocability altered by good faith is problematic. Where the ground rule is one of unconstrained revocability ‘at will and at any time’, the addressee may not legitimately (and where this rule is known usually will not) put any faith on the unilateral declaration as creating a legally binding obligation. It is, in this writer’s opinion, therefore contradictory to lay down unconstrained revocability as a ground rule, and then modify the latter on the basis of whether or not the addressee chose to rely upon the declaration made. The law must first stipulate whether or not the addressee may rely on a statement as a legally binding undertaking, a stipulation which, with free revocability, would have been answered in the negative. To take an example from German civil law, the latter stipulates that a contract in which immovable property is sold requires notarisation in order to be valid. If this is the rule, the fact that one of the parties relied on a merely written contract to be fulfilled, cannot alter it and the ‘good faith’ principle as enshrined in the German Civil Code will not change this finding.256 The opposite approach has rightly been criticised by Rubin, who in his article on the Nuclear Tests cases stressed: If the international community were not misled by the unilateral declaration and did not conceive it as creating a direct legal obligation, no significant question of good faith would seem to arise. The sole legal question would seem to be a mere technical one of whether an express revocation should be required prior to a state’s acting in a manner inconsistent with its unilateral declaration, or whether the inconsistent action implying revocation should be conceived to be sufficient to satisfy the legal requirements, if any, flowing from the general obligation of good faith.257 255 256 257

  Skubiszewski, ‘Unilateral Acts’, n 11 above, para 66.   Extreme cases of ‘inequity’ aside.   Rubin, ‘Unilateral Declarations’, n 24 above, 10–11.



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But once the legal bindingness of a promise is accepted as a starting point, such a finding implies a necessary limitation on a state’s power of revocation. An addressee may consequently rely on the declaration made and expect such reliance to be protected under the legal principle of good faith. In altering Rubin’s citation to reflect the present status of inter­ national law – ‘if the international community is led to believe that a unilateral declaration creates a direct legal obligation’ (as is by now clearly the case with the ICJ, the ILC and the majority within legal doctrine emphasising the legal bindingness of promises in order to allow states to be able to trust unilateral assurances) – the result is that such expectations are now protected under the legal principle of ‘good faith’. A finding according to which a state’s declaration is binding, hence, implies that its power of revocation must somehow be limited, as the expectations of its fulfilment are now protected under the principle of good faith. The precise limitations on a state’s power of revocation, however, still remain to be determined. B  Between the Vienna Convention and a ‘More Flexible’ Approach While most commentators have adopted this position and reject an undertaking’s unrestrained revocability, the answers differ as to how much trust should be protected under the good faith principle. A number of scholars have gone as far as to adopt the position at the very extreme opposite of the spectrum, arguing that an assurance given by unilateral means is irrevocable.258 But although asserting that promises cannot be taken back, these authors seem to allow for exceptions and, in fact, to accept the position that unilateral undertakings can hardly be ‘more binding’ than their conventional counterparts.259 The limited grounds of termination which are applicable in the law of treaties are, hence, usually accepted as being applicable, mutatis mutandis, to promises where an assurance is classified as irrevocable. Jacqué has expressly said so, and for Suy, who considers that states may not ‘go back’ on their legal undertaking, this consequence is equally clear, as he wants to enlarge the understanding of the word ‘pactum’ in pacta sunt servanda to include promises.260 Although doing 258   See Suy, Actes unilatéraux, n 89 above, 152, who, in adopting Paul de Visscher’s choice of words as Agent for Honduras in the arbitration before the King of Spain (award rendered 23 December 1906) wrote: ‘Les Etats doivent savoir que la vie internationale requiert la sécurité et que pour cette raison il ne leur est pas permis de revenir sur leurs propres déclarations lorsque celle-ci ont déterminé un autre Etat à leur accorder confiance et crédit’; Jacqué, Eléments, n 221 above, 256 : ‘la promesse ne pourra être retirée à partir du moment où son destinataire en a eu connaissance’; see also Venturini, ‘Actes unilatéraux’, n 70 above, 421–23, especially 422.  259   As emphasised by eg Fiedler, ‘Einseitige Versprechen’, n 86 above, 67 and Rubin, ‘Unilateral Declarations’, n 24 above, 10. 260  Suy, Actes unilatéraux, n 89 above, 44–46 and Eric Suy, Unilateral Acts as a Source of

254  The Law on Promises so has not found many followers in the literature on the subject, there is considerable support for the thesis that the rules on the terminability of treaty obligations should be applied by analogy also to unilateral assurances.261 Those authors who go into more detail in this respect consequently describe promises as being revocable in accordance with any terms incorporated in the promise itself or where the addressee consents thereto. Other than that, situations as envisaged by Vienna Convention, Article 61 (supervening impossibility of performance)262 or Article 62 (fundamental change of circumstances) are said to allow for the undertaking’s revocation.263 While the transferral of the rules of the Vienna Convention to promises in this area of fundamental importance might be considered welcome by the scholars referred to above, it should not be ignored that to do so is presently simply a proposition. There is neither state practice to point to, nor is this position backed by the ICJ’s dicta, which could again serve as a guiding light in this area, at least unless rejected by a state consensus to the opposite. ‘Irrevocability’ is in addition by no means a necessary or a logical result flowing from the application of the ‘good faith’ principle. Identified as protecting the expectations placed on a promise as a legally binding undertaking, it must necessarily impose some restrictions on a promise’s revocability in order to do so, but it does not necessitate applying the very same (and strict) rules to assurances which are applied to treaties as flowing from the pacta sunt servanda principle. Given the lack of state practice and strong dicta in this respect, the revocability of promises is therefore an area in which a broad consensus within the ILC would have been of great help. But it was apparently precisely on account of these two factors that such a consensus could not be established. In turning to the Commission, it may first be observed that International Law: Some New Thoughts and Frustrations’ in Droit du pouvoir, pouvoir du droit: mélanges offerts à Jean Salmon (Brussels, 2007) 639. Jacqué, in his article ‘Promesse unilatérale’, n 97 above, 344 considered ‘[l]es conditions de révision et de révocation de la promesse unilatérale sont fort proches de celles prévues dans le cadre du droit des traités pour la suspension ou l’extinction des obligations nées d’une convention internationale’.  261   See Carbone, ‘Promise in International Law’, n 86 above, 172, for whom the ICJ in the Nuclear Tests cases seems to ‘point towards a régime under which the discipline of revocation of promise is similar to that in force on the denunciation of treaties’ and for whom ‘[s]uch a conclusion seems to be both well-balanced and worthy of acceptance’. See also Francisco Villagrán Kramer, ‘Les actes uniltéraux dans le cadre de la jurisprudence inter­nationale’ in International Law on the Eve of the Twenty First Century: Views from the International Law Commission (New York, 1997) 157 and, as just cited in n 260 Jacqué, ‘Promesse unilatérale’, n 97 above, 343–44. Similarly, Sicault, ‘Engagements unilatéraux’, n 70 above, 650 et seq, for whom the grounds of revocation are presently rather feeble (‘mince’, 654), but, apart from revocation according to the terms included in a promise or by mutual consent, the rebus sic stantibus principle applied; agreeing with Suy, also Charpentier, ‘Engagements unilatéraux’, n 73 above, 378. 262   See p 243 et seq. 263   See Jacqué, Sicault and Charpentier as cited n 261 above. Similarly, Goodman, ‘Acta Sunt Servanda?’, n 67 above, 69, last two paragraphs.



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the above depicted positions found in the literature on the topic all surfaced quickly and at an early stage of its work amongst its members, even though the revocability of unilateral undertakings was not addressed in more detail by the Special Rapporteur until his Ninth and final Report. The revocability question was nevertheless raised especially within the 1998 debate on Cedeño’s First Report, and again in 2002 after some of the Commission members had changed, and the ILC was presented with a largely recapitulative overview of the topic in the Special Rapporteur’s Fifth Report. The relevant part of the discussion held in 1998 is summarised in the ILC Yearbook as follows: A number of members made observations regarding the problem of the revocation of unilateral promises. Some commented that the ability of a State to revoke a unilateral promise which it had made should depend, at least in part, upon its intention when it performed that act. Thus, if it had intended that its promise be revocable, then it should be susceptible of revocation, subject to whatever conditions or restrictions that State might have imposed upon itself in that regard . . . Conversely if the State which had made the promise had intended that it be irrevocable, then it should not, in principle, be subject to revocation.264

Turned into a legal principle and applied in practice, this position would probably amount to emphasising the importance of special terms included in a state’s declaration and addressing the undertaking’s revocability; as held by many scholars these terms would then govern the future execution of the act. Yet, as states are usually reluctant to make promises which immediately draw attention to the possibility of their future revocation,265 the more important question will be how to treat statements in which any such indications are lacking. In this respect, and in continuing with the summary provided in the ILC Yearbook, the following was said: With regard to those cases in which it was not possible to identify any intention on the part of the declarant State, one member expressed the view that, since the legal relations created by a unilateral promise were not reciprocal in nature, such a promise should be presumed to be revocable at will by the State which had made it.266

Revocability ‘at will’ was therefore proposed in the Commission, yet it triggered a negative response along similar argumentative lines as presented above: Several members, however, were opposed to this conclusion, stating that, were this so, the binding nature of such acts under international law would be quite illusory and the expectations of those States in whose favour they were made 264   ILC, Report on the Work of its Fiftieth Session, General Assembly, Official Records, Fiftieth Session, Supplement No 10, A/53/10 (1998) 57–58, para 185. 265   See p 264 et seq. 266   ILC, Report of its Fiftieth Session, A/53/10, n 264 above, 58, para 185.

256  The Law on Promises would lack protection.267

ILC members, however, did not automatically jump to the conclusion that promises should necessarily be considered ‘irrevocable’ unless the addressee consented, as: On the other hand, it was observed that, were unilateral promises to be presumed to be of indefinite duration and not to be susceptible of revocation without the consent of the State or States in whose favour they were made, then States would be reluctant ever to make such promises. Alternatively, they would find themselves compelled in certain circumstances to resile from them. Accordingly, there should be some, albeit not unlimited, ability on the part of a State which had made such a promise to revoke it.268

In the following, it was also remarked within the Commission that the law of treaties might provide some guidance in this respect, yet attention was drawn especially to the ICJ’s holding in the jurisdictional phase in Military and Paramilitary Activities in and against Nicaragua, where the Court pronounced in respect of a declaration made under the Optional Clause (the judgment will be addressed in more detail below). It is interesting to see that once the Commission had, to a certain extent, been reshuffled in 2002, a very similar discussion arose. It, too, was articulated along the lines first of free revocability, triggering a response in favour of ‘irrevocability’ (ie treaty rule transferral), only to prompt a call that it was necessary to establish a ‘middle ground’. As the 2002 ILC Yearbook summarises: There was also a discussion in the Commission about the termination of the obligation created by a unilateral act. It was noted that in the case of a treaty there was a procedure and an agreed methodology which must be respected, whereas, in the case of a unilateral act, only estoppel, acquiescence or the existence of a treaty, custom or other obligation prevented an equally unilateral termination. However, according to another view, a unilateral act could not be revoked at any time because a State which had unilaterally expressed its will to be bound was, in fact, bound . . . Unilateral acts, like treaties, lead to situations in which States were caught against their will; once expressed, their commitment was irrevocable, yet the treaty or act had no effect unless invoked by other States. Nonetheless, the point was also made that a unilateral act could be terminated in good faith and that the technique of revocation deserved its place in the study of means of terminating unilateral acts.269

The Special Rapporteur opted for the general irrevocability of obligations undertaken by promises, a position which was apparently to be understood   Ibid 58, para 186.  Ibid. For the different positions and their exact wording see especially the remarks made by Yamada, Hafner, Goco, Pambou-Tchivounda and Herdocia Sacasa at the end of ILC, 2526th Meeting, n 12 above, para 69 et seq. 269   ILC, Report of the Fifty-fourth Session, A/57/10, n 12 above, 206–07, paras 361–62. 267 268



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as the ‘irrevocability’ position presented above, ie allowing for a unilateral undertaking to be amended or revoked only by consensus, according to the terms incorporated in it or on account of a fundamental change in circumstances or in the case of supervening impossibility of performance.270 This position was never completely given up, but his Ninth Report sent some mixed signals,271 indicating that Cedeño eventually moved closer to what Tomuschat has described as ‘the mainstream that preferred a solution purporting carefully to balance the different interests at stake’.272 According to the Special Rapporteur, the ‘undertaking need not be regarded as a perpetual obligation from which the State can never free itself’.273 Instead, and citing Charles de Visscher, the special circumstances of a case should allow a ‘relative, flexible’ position to be adopted.274 Guiding Principle 8, which the Special Rapporteur proposed, however, provided no room for a more flexible ‘revocation or termination’.275 Instead, it first listed the rather unproblematic aspects of an act’s automatic termination, where a specific time limit or condition had been included in the promise, or where a new peremptory norm had emerged.276 Only two scenarios allowing for subsequent willed revocation were mentioned, ie where the subject matter had ceased to exist, or where a fundamental change of circumstances had taken place, although the latter, oddly, only referred to cases where the fulfilment had thereby become ‘impossible’. The question if and how a promise may be revoked which does not announce its own lifespan was therefore not expressly addressed, but Cedeño’s proposal contained no clause that allowed for 270   See Victor Rodriguez Cedeño, Fifth Report on Unilateral Acts of States, Addendum 2, UN Doc A/CN.4/525/Add.2 (2002) 11, para 184 and Victor Rodriguez Cedeño, Sixth Report on Unilateral Acts of States, UN Doc A/CN.4/534 (2003) 27–28, paras 116–19, with the latter not being restricted only to recognition and according to which: ‘In sum, unilateral acts can be said to be unmodifiable in the broad sense of the term, unless the opposite can be inferred from the act itself or derived from circumstances or conditions provided for therein, or, as we shall see below, from external situations’, para 118. 271   See Cedeño, Ninth Report, Addendum, n 142 above, 30, para 87 and 32, para 92, contra 31, para 88 and especially 35, para 101. 272   Tomuschat, ‘Unilateral Acts’, n 43 above, 1498. 273   Cedeño, Ninth Report, Addendum, n 142 above, 35, para 101. 274  Ibid. 275   While the Special Rapporteur had suggested distinguishing between automatic ‘termination’ of a unilateral undertaking and an act’s ‘revocation’ in the form of a new wilful act (see Cedeño, Ninth Report, Addendum, n 142 above, 29, para 83 and 35, para 101), the suggested principle followed this maxim only half-heartedly, as it provided that an act may be ‘terminated or revoked by the formulating State’ on the grounds listed therein, see Cedeño, Ninth Report, n 135 above, 3, Guiding Principle 8. 276   A parallel approach was thereby proposed to that followed in Vienna Convention, Art 64. In the latter, the continued dissent amongst Commission members as to whether a treaty was to be considered void once a new peremptory norm emerged or merely terminated is, however, still reflected in the Article’s wording which simply pretends that both approaches are compatible and announces that in such scenarios ‘a treaty . . . becomes void and terminates’; for more see Anne Lagerwall, ‘Article 64, Convention de Vienne de 1969’ in Olivier Corten and Pierre Klein (eds), Les Conventions de Vienne sur le droit des traités (Brussels, 2006) vol III, 2299, 2335–39.

258  The Law on Promises revocation on other than the above-mentioned grounds. His task was, of course, complicated by the fact that he was still dealing with the entire subject of unilateral acts and not only that of promises. A ‘more flexible’ position on revocation would therefore have opened the gates to easier ways of revocation also for waivers and acts of recognition, even though in these areas, there is much less reason to doubt their irrevocability.277 For this reason alone it is not surprising that the ILC’s final outcome deviates substantially from the Special Rapporteur’s proposal. As will be seen, however, it simply abstained from answering the question and deciding between a more flexible and a rigid bar on revocation. Instead, a couple of specific circumstances and the effects they will have on the revocability of promises are listed, but the treatment of all others, ie the ‘average’ promise, is left open to question. C  Guiding Principle 10: Providing an Answer (Only) for ‘Specific Circumstances’ Turning to the Guiding Principle finally adopted by the ILC takes us (as in other areas of their application) directly to the ICJ’s dicta contained in the Nuclear Tests cases. In respect of the French undertakings, the ICJ had stated: The Court finds that the unilateral undertaking resulting from these statements cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration.

The ILC copied this scrap of dictum into its Guiding Principle 10, according to which a unilateral declaration which has created legal obliga­tions for the state making it hence can ‘not be revoked arbitrarily.’ To bar an ‘arbitrary’ revocation, of course, immediately triggers the question how the term ‘arbitrary’ is to be understood. Herodocia Sacasa referred to the ICJ’s wording in the ILC by interpreting non-arbitrary as indicating a ‘not unlimited’ power of revocation,278 which is in line with the above finding that necessary limitations must exist, but it does not help in determining them. As Jacqué has remarked, referring to arbitrariness reminds a lawyer of the prohibition on the abuse of a legal right,279 as a result of which the limits imposed on a state to revoke its declaration would, however, be anything but strict. For Jacqué, it is possible to speak of an abuse (in the rare cases) where a state intends to revoke its undertaking without a motive, merely to abdicate its responsibility or in order to 277 278 279

  On the revocation of a waiver see p 35, on that of recognition see p 32.   See ILC, 2526th Meeting, n 12 above, 57, para 77.   Jacqué, ‘Promesse unilatérale’, n 97 above, 343.



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harm the beneficiary.280 But although the ILC could not reach a consensus which allowed it to go beyond the Court’s not very informative terminology in this respect, it did agree on some indicators and an ‘open-ended list of criteria’,281 which are to serve in assessing whether a revocation would, in fact, be arbitrary or not. Guiding Principle 10 reads in full: A unilateral declaration that has created legal obligations for the State making the declaration cannot be revoked arbitrarily. In assessing whether a revocation would be arbitrary, consideration should be given to: (a) any specific terms of the declaration relating to revocation; (b) the extent to which those to whom the obligations are owed have relied on such obligations; (c) the extent to which there has been a fundamental change in the circumstances.

The ILC’s Commentary emphasises that the ICJ had not excluded a state’s power to terminate a unilateral act, but only its arbitrary withdrawal or amendment. There could hence: be no doubt that unilateral acts may be withdrawn or amended in certain specific circumstances. The Commission has drawn up an open-ended list of criteria to be taken into consideration when determining whether or not a withdrawal is arbitrary.282

Although aspects (a) (‘specific terms’) and (c) (a ‘fundamental change in the circumstances’) are, as just seen,283 regularly mentioned in articles or debates on the matter as allowing a declaration’s revocation, they are usually not debated under the heading of a declaration’s arbitrary or nonarbitrary withdrawal. Yet, at first sight, there appears to be nothing wrong with doing so. Indeed, where a fundamental change of circumstances ‘within the strict limits of the customary rule enshrined in Article 62 of the 1969 Vienna Convention on the Law of Treaties’, as the Commentary says,284 has occurred, the declarant hardly acts ‘arbitrarily’ in revoking the declaration. A unilateral declaration may hence ‘be rescinded’ in this case, as the Commentary says.285 Similarly, where a state acts according to the terms stipulated in its undertaking, it is not behaving arbitrarily, but in fact only keeping within the undertaking’s expressly announced limits. The ILC’s decision to include the three above-cited aspects under a common principle in assessing a revocation’s arbitrariness is, nevertheless, 280   Ibid. Surprisingly, the ‘non-arbitrary’ revocation scenarios subsequently mentioned by Jacqué are, however, only those which are also codified in the law of treaties. 281   ILC, Guiding Principles with Commentaries, n 46 above, 380, Commentary to guiding Principle 10, para 2. 282   Ibid, emphasis added. 283   See p 253 et seq. 284  ILC, Guiding Principles with Commentaries, n 46 above, Commentary to Guiding Principle 10, 381, para 3. 285  Ibid.

260  The Law on Promises problematic, as it might lead to the misunderstanding that the Commission had found a coherent concept in determining a promise’s revocability. The ILC, after all, determines that arbitrary revocation is ‘prohibited’ and then lists different scenarios, with the Commentary explaining that there could be no doubt that unilateral acts ‘may be withdrawn or amended in certain specific circumstances’. This finding could easily be interpreted as meaning that unilateral acts may be withdrawn or amended only in certain specific circumstances. If this were true, the controversial positions within the Commission would have been overcome in favour of a consensus on a ‘default rule’, according to which a promise usually (ie absent special circumstances) cannot be revoked. And indeed, why should the fundamental change of circumstances allowing revocation be expressly mentioned, if promises were revocable even where the circumstances (including a ‘state’s mind’) had merely changed. The e contrario argument of including the rebus sic stantibus clause hence seems to indicate that promises are usually not revocable. The Commission would then have answered the question on the revocation of promises by setting strict limits and by, effectively, adopting a Vienna Convention-like approach. As a closer look at the Commentary on paragraph (a) and especially on paragraph (c) shows, such an interpretation of Guiding Principle 10 would, however, be erroneous. To begin with aspect (a), the ‘special terms’ relating to revocation and included in a declaration: the oddly worded commentary here does not emphasise the possibility of a state revoking its declaration according to the terms incorporated, as is usually done when referring to a declaration’s wording in this regard. Instead, it stresses the restraining power of such a stipulation, as the declaration cannot be revoked unless the conditions laid out have been met.286 Here, the Commission considers a state obliged to remain within the self-imposed limitations. This would, however (and again e contrario) mean that where no such special terms hindering revocation have been included, a declaration must be more easily revocable; otherwise, the inclusion of special terminology would not matter. Whether the ILC therefore really assumed a general rule of non-revocation, as the clausula rebus sic stantibus seems to indicate, already becomes doubtful; and the analysis of aspect (b) confirms that it did not do so, since it turns out to militate strongly for the opposite ‘ground rule’ according to which promises are in principle (though not necessarily immediately) revocable. Paragraph (b), as cited, refers to ‘the extent to which those to whom the obligations are owed have relied on such obligations’ and the Commentary explains that the ILC contemplated a situation where ‘its addressees have relied on it in good faith and have accordingly been led “detrimentally to change position or suffer some prejudice” ’.287 286 287

  See the clarification included in note 982 within the Commentary, ibid 380.   Ibid Commentary to Guiding Principle 10, 380–81, para 3.



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The Commission, in the last part of this sentence, quotes the ICJ and adopts the wording it used in the Military and Paramilitary Activities in and against Nicaragua case. There, however, the Court referred to the ‘estoppel’ principle, which explains why it referred to a detrimental change in position on the part of the addressee. The ICJ said in full: Furthermore, as the Court pointed out in the North Sea Continental Shelf cases [reference omitted] estoppel may be inferred from conduct, declarations and the like made by a State which not only clearly and consistently evinced acceptance by that State of a particular regime, but also had caused another State or States, in reliance on such conduct, detrimentally to change position or suffer some prejudice.288

While estoppel is addressed below in more detail, it is at this point only important to note that in an estoppel scenario, a state is (suddenly) no longer allowed to alter its earlier position on account of the addressee having not only relied on the statement made, but having in addition detrimentally changed its position or having suffered some prejudice, as the Court stressed in the quotation above. Faced not only with simple but with detrimental reliance on the part of the addressee, the estoppel scenario hence limits the declarant’s freedom to go back on its word in order to protect the addressee from actually suffering the impeding detriment. This means that by pointing to estoppel, paragraph (b), via its com­ mentary, refers to ‘special circumstances’ in which a declaration may not be revoked. Yet, if the ‘non-arbitrary’ principle already rigidly barred revocation (absent a fundamental change of circumstances or other ‘special factors’ such as the addressee’s consent), there would be little need to stipulate that the exceptional scenario, in which the addressee has relied to its detriment, will have the very same effect of barring revocation. There would, in other words, be no need for the estoppel protection as an exception to the rule, where the rule is already that of non-revocability. A closer analysis, therefore, provides a contradictory result, if we examine the ILC Principles in order to discern whether a promise may usually, ie absent special circumstances, be revoked or not. Emphasising the effect of a fundamental change in circumstances, e contrario, seems to imply that a promise may usually not be revoked, while stressing the limiting power of special terms and the restraining force resulting from the estoppel principle both indicate that the revocation of promises absent these factors is not already barred. What is thereby revealed is that the controversial debates within the ILC as to whether promises are freely revocable, or whether they must, in this respect, be subject to a treaty or a more flexible regime, ended in no consensus, which is, hence, reflected in Guiding 288  ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Jurisdiction and Admissibility, Judgment of 26 November 1984, [1984] ICJ Rep 392, 415, para 51, emphasis added.

262  The Law on Promises Principle 10. The different opinions remained unresolved and have only seemingly been tied together under one concept, by using the ICJ’s reference to ‘arbitrariness’. Such a common concept, however, does not exist and what the Commission has in fact done, is to simply address special scenarios on the legal treatment of which most scholars, irrespective of their opinion as to the ‘ground rule’ in this area, can agree. For those who generally opt for free revocability, the exceptional estoppel scenario must remain of particular relevance in protecting the addressee from suffering considerable detriment in extreme cases. For proponents of a treaty rule transferral, revocation without the addressee’s consent is already barred in these cases, yet mentioning the estoppel principle can do no harm, as the latter will merely lead to the same result, ie that a promise cannot be revoked. For the Vienna Convention rule advocates, revocation, in light of a fundamental change of circumstances, is possible (as an exception), while a supporter of free revocability can also live with this finding, which will for him or her only make the undertaking ‘all the more’ revocable. Those opting for a more ‘flexible’ approach could, apparently, also agree that these special scenarios represented reasonably clear-cut cases, as they lie at both ends of the conceivable spectrum. Hence, it appears that what the ILC members could agree on was how to treat such special settings, but on nothing more. How revocation of the ‘average promise’, ie one where no special terms are included, no fundamental change of circumstances has taken place and the addressee is not protected by estoppel, is to be dealt with, is therefore still open to question. With the Commentary on the aspects mentioned, in effect, pointing in both directions, a systematic reading of the term ‘arbitrary’ is not possible in order to illuminate this question. While a ‘ground rule’ on revoking promises has therefore not been established, at least the legal treatment of the following ‘special scenarios’ seems to be covered by a consensus: (1) where specific terms are included in the declaration, it can be revoked (only)289 according to the terms included; (2) where a fundamental change of circumstances has taken place as defined in Vienna Convention, Article 62, a declaration can be revoked; (3) where the addressee is protected under the estoppel principle on the grounds that it would suffer detriment in case of revocation, the latter is barred. Although not included in the Guiding Principles, there seem to be a couple of other scenarios for which also a consensus on how they are to be treated exists: 289   The collision with other ‘special scenarios’ such as a fundamental change in circumstances probably set aside.



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(4) where the addressee consents to revoke the undertaking, it may be revoked;290 (5) where a declaration includes a condition or a time limit, it will terminate as declared;291 (6) where the addressee rejects the undertaking, the declarant is no longer bound vis-à-vis the latter by its promise.292 While the legal treatment of promises and their revocation (or automatic termination) in these specific circumstances is fairly clear, the underlying, and central, question as to whether promises may generally and outside such settings be revoked or not, is not answered and will now be addressed in more detail.  D  Specific Circumstances Aside: Determining a ‘Ground Rule’ on Revocation As seen, the ILC reached no consensus on an existing or future ‘ground rule’ as to whether or not the ‘average’ promise may be revoked, ie a promise which does not fall within the above-mentioned specific scenarios that either clearly allow or hinder a revocation. To recall, Guiding Principle 10 indicates that a declaration which contains specific terms may only be revoked accordingly. It also emphasises that where a fundamental change of circumstances has taken place, an undertaking may be rescinded. In an estoppel scenario, on the other hand, revocation will not be possible. But what Guiding Principle 10 does not answer is what will happen if none of these special scenarios are fulfilled. In other words: can a promise including no special terms be rescinded by a state on account of a change of policy, provided that the addressee will suffer no considerable detriment293 thereby? (i)  Towards a ‘More Flexible’ Approach The answers provided by scholars and ILC members to this question have already been cited as ranging from unrestrained revocability, through general irrevocability to a more flexible position. The position allowing the termination of an undertaking, at will and any time, has been rejected as incompatible with the ‘binding’ nature of a unilateral undertaking. The adoption of the strict rules applicable to treaties would answer the above   Or is terminated, if the parties conclude a treaty to this effect.   Since thereby the undertaking will simply have the legal effect it was announced to have. 292   Since then the basis of the obligation will collapse. On the impact of the addressee’s reaction on the promise made see p 247 et seq, also p 205 et seq. 293   For more on estoppel as protecting the addressee, see p 277 et seq. 290 291

264  The Law on Promises question in the negative, and even outside an estoppel scenario, a promise therefore (special terms or a fundamental change of circumstances aside) could not be revoked. The proposition to treat obligations assumed by promises in a parallel fashion to their consensual counterpart is, however, not necessitated on the basis of the good faith principle. The latter only requires some (yet not necessarily the same rather strict) limitations in order to establish a promise’s bindingness and protect the addressee’s reliance thereon. Similarly, by following the ICJ’s dicta, only an ‘arbitrary’ revocation is prohibited, which is fully compatible with allowing a state to revoke an undertaking even outside the scenarios mentioned in the Vienna Convention. Not backed by state practice or the ICJ’s dicta and in the absence even of a consensus amongst scholars (the ILC debates well illustrating the differences in opinion), the adoption of treaty provisions is presently only a proposition for progressive development in this area. The advantages and disadvantages of doing so should therefore be carefully assessed, and some of the more negative aspects of a general ground rule of irrevocability have been raised within the Commission. Especially those who opted for a more ‘flexible’ approach stressed that states may be reluctant ever to undertake a unilateral obligation through a promise should this mean that their hands would remain tied for all future times.294 It is, of course, true that even under an adoption of the Vienna Convention rules, states could evade this problem by proclaiming a specific regime for revocation in the declaration itself. But as the depiction of unilateral declarations in chapter two has shown, states might very well be reluctant to declare an undertaking only to immediately draw its beneficiary’s attention to the undertaking’s revocability. In answering the questionnaire circulated by the ILC, Sweden went as far as considering the absence of such regulation within the declaration itself as being part of the nature of a unilateral act: While treaty regimes usually contain provisions on issues like termination, suspension and withdrawal, it is in the nature of unilateral acts that they do not regulate the corresponding issues. For this reason, there is a need for general rules on the subject.295

While it is not necessary to go quite as far, such stipulations are undoubtedly rare and probably for good reason, as they might be understood as emphasising and highlighting rather the limits of the obligation solemnly announced than the obligation itself. It therefore appears to make a (psychological) difference whether a solemn promise is held to be revocable according to a general legal framework, or whether an undertaking is usually irrevocable and a state, in order to alter it, will hence have to sol  See the text to n 268 above.   See the Swedish reply to question 9 on the possible revocability of a unilateral act in ILC, Government Replies to the Questionnaire, n 2 above, 21. 294 295



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emnly announce not only the undertaking, but continue by setting out the regime for its revocation. Although the obligation undertaken may be the same in both scenarios, the effect will be different; even a (civil) marriage can end in divorce according to the law codified in this respect, yet the ‘I do’ would surely lose some of its power in the eyes of the beloved addressee, were the ground rule altered to be that of complete irrevocability, whereby the very same vow would now be complemented by an express statement listing all possible grounds for the wedding bond’s termination. Requiring states to expressly announce the limits of their undertakings might, therefore, be directly opposed to what states actually want to achieve by their solemn promise.296 If necessary, states might therefore choose not to adopt the undertaking at all. The argument for express terms to be included as regards altering the scope of an obligation works better the opposite way, as even where an undertaking can be revoked subject to a more flexible regime, a state remains free to ‘add on’ to its obligation express terms limiting the grounds of revocability. In addition, as chapter two has shown, in the realm of promises it is in particular the oral promise which has been at the centre of attention. As such, it constitutes a quick and informal tool to assume an immediate obligation. What may be an advantage for states looking for a mechanism to do so has nevertheless also been identified as one of a promise’s more dangerous characteristics.297 Along with the impact a hastily assumed undertaking will have, this danger will only increase if the obligation undertaken is considered to be basically irrevocable. Finally, Tomuschat in his article has raised awareness of another consideration which speaks in favour of a more flexible approach: At a time when the democratic principle is gaining ground as a decisive factor for political decision-making both at the domestic and international levels, it seems to be even less justifiable to consider as set in stone a promise that was made in a specific historical context.298

The problem identified with a regime of general irrevocability is, hence, that it will compel the population of a state to remain perpetually bound by an undertaking which its predecessors’ representatives have once assumed, provided that the latter did not insist on a unilateral exit strategy when adopting the undertaking. Unless they have done so, under 296   See also Sicault, ‘Engagements unilatéraux’, n 70 above, 652–53, who in respect of a time limit integrated into the declaration made says: ‘En effet, le recours à une telle limite dans le temps pourra souvent être interprété de manière négative par les destinataires et, dès lors, l’engagement unilatéral émis avec de telles restrictions irait à l’encontre du but recherché par son auteur’. For declarations under the Optional Clause this practice has, nevertheless, become rather common, see, eg Juan José Quintana, ‘The Nicaragua Case and the Denunciation of Declarations of Acceptance of the Compulsory Jurisdiction of the International Court of Justice’ (1998) 11 Leiden J International Law 97, 106–07. 297   See Tomuschat, ‘Unilateral Acts’, n 43 above, 1496. 298   Ibid 1497.

266  The Law on Promises a ground rule of irrevocability, present and future generations therefore could not simply ‘opt out’ of the promise made (the limited exceptions of a fundamental change of circumstances and the beneficiaries’ consent aside). In pointing to this problem, Tomuschat, of course, sees the other side of the coin and the danger which lies in a rule allowing for an easier revocation of obligations undertaken as potentially destabilising the stability and the trust that can be placed in an international under­taking. He accordingly suggests a compromise should be achieved between a state’s freedom of action, on the one hand, and the expectations raised in the addressee as having received a binding undertaking, on the other.299 And surely, if every change of government allowed for a complete reassessment of the obligations undertaken, trustworthy long-term agreements would become impossible. The ability to place trust in an undertaking’s continued existence ranging beyond the next election period in a given country is a necessary precondition in many areas of international cooperation. Many legal commitments, be they targeting areas of nuclear disarmament, climate change, decreasing fishing stocks or investment regulation, would lose their effectiveness if made subject to permanent re-evaluation by every single state, despite it having pledged continued adherence to them. In this dilemma or relationship of tension between a population’s freedom of continued self-determination and the necessity for stable obligations, the difference between the unilateral and the bilateral instrument chosen for the obligation to arise might become decisive. In other words: what is true for the agreements discussed above need not necessarily apply to unilateral undertakings. In addition, since the pacta sunt servanda principle, with its limited possibility of revocation, already establishes a rather inflexible yet thereby very stable mechanism for a state to assume an obligation and ensure its continued cooperation with one or several states, the unilateral assurance could fill the gap by presenting itself not only as a more flexible counterpart in assuming an obligation, but also as a more flexible one in rescinding it, at least as a ground rule. A state would nevertheless remain free to expressly assume an irrevocable or largely irrevocable obligation, similar to that contained in a treaty, by announcing its decision to do so in express terms. Where a state has done so, the addressee will be allowed to trust in the perpetual existence of the undertaking assumed and its trust will be legally protected. But where no such announcement has been made, an undertaking could not generally be relied upon as being irrevocable. Here, a compromise between the declarant’s freedom and the necessity to allow for trust and stability in international assurances would lead to a ‘more flexible’ regime. But what in fact does this mean? 299

  Ibid 1497.



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(ii)  Reasonable Notice Requirement Sicault, in taking the mechanism incorporated in some treaties as a blueprint, considered a ‘double delay’ to be a sensible solution. According to this idea, a state cannot revoke its undertaking for a certain limited period, after which revocation becomes possible but again will only be effective after another time limit has passed. For Sicault, such a solution does not place an excessive burden on the declarant while simultaneously protecting the rights of the addressee.300 And indeed, it appears to be equally balanced and to form a ‘middle ground’ between the two extreme positions of unrestrained and complete irrevocability. The addressee is allowed to rely on the statement made, yet under certain limits which nevertheless guarantee the obligation assumed by the declarant through unilateral means, but one from which it can be released should it consider a revocation to become necessary. But to achieve this result, a double delay is not strictly necessary and can instead be boiled down to only a single one, according to which a state cannot revoke its undertaking with immediate effect. As long as the time span before a revocation becomes effective is long enough to allow the addressee to readapt its position to the developing legal scenario, it will be adequately protected; especially so as the estoppel doctrine will, in any event, serve as an ultimate safety net for extreme situations. In other words, should the addressee, while acting reasonably, have changed its position to now suffer considerable detriment once the undertaking is revoked, estoppel will hinder a state from revoking its obligation.301 But only in these cases would the undertaking become de facto irrevocable, a consequence which does not put an unjustifiable strain on the declarant, since reasonable reactions to its statements are usually, as such, also foreseeable ones. Although this ‘more flexible’ approach has here been introduced as a proposition to counter the negative implications an adoption of the Vienna Convention rules might have, it is, in fact, backed up by ICJ dicta. While the ICJ in the Nuclear Tests cases might have already hinted at imposing a more liberal regime when it only barred ‘arbitrary’ revocation, it was not very precise in what it actually meant. But despite this lack of precision on the revocability of undertakings in the Nuclear Tests cases, it would be wrong to present the Court’s judgments as being otherwise devoid of any guidance in this matter. Rather, the Military and Paramilitary Activities in and against Nicaragua judgment on the jurisdiction and admissibility of the claim is particularly important and telling on the issue of the revocability of unilateral promises. Reference has already been made to that holding when discussing the treatment of a unilateral declaration made pursuant to ICJ Statute, Article 36(2). In order to fully grasp the extent of the 300 301

  See Sicault, ‘Engagements unilatéraux’, n 70 above, 653.   See p 277 et seq.

268  The Law on Promises answer provided by the Court to the question addressed here, the following important facts need to be recalled.302 The United States had accepted the ICJ’s jurisdiction in making a declaration pursuant to ICJ Statute, Article 36(2) on 14 August 1946, in which it had stipulated that the declaration will ‘remain in force for a period of five years and thereafter until the expiration of six months after notice may be given to terminate this declaration’.303 This declaration of 1946 (which expressly announced a ‘double’ delay as just discussed) was followed by a second declaration on 6 April 1984. That day, the United States deposited a notification with the UN Secretary-General, according to which all disputes with Central American states were to be excluded from the ambit of the obligation undertaken in 1946. In respect of the six-months notice period proclaimed in 1946 (the only one that mattered as the five years after its proclamation had already lapsed), the new notification stipulated the following: Notwithstanding the terms of the aforesaid declaration, this proviso shall take effect immediately and shall remain in force for two years, so as to foster the continuing regional dispute settlement process.304

Since Nicaragua, as a Central American state, had filed its application with the Court three days after the United States had notified the SecretaryGeneral, the decisive question was whether or not the United States had the right to (immediately) terminate their original under­taking. The ICJ approached this question as follows. According to the Court, declarations under the ‘Optional Clause’, and hence those now before it, were: facultative, unilateral engagements that States are absolutely free to make or not to make. In making the declaration a State is equally free either to do so unconditionally and without limit of time for its duration, or to qualify it with conditions or reservations. In particular, it may . . . specify how long the declaration itself shall remain in force, or what notice (if any) will be required to terminate it.305

The judgment thereby affirmed that a state may introduce numerous qualifications into its freely made unilateral undertaking, including those pertaining to the duration of the undertaking made. The Court continued: 302   For comments on the Court’s judgment see, eg HW Briggs, ‘Nicaragua v. United States: Jurisdiction and Admissibility (1985) 79 American J International Law 373; Thomas M Frank, ‘Icy Day at the ICJ’ (1985) 79 American J International Law 379; for the aspects relevant here, see especially Quintana, ‘The Nicaragua Case and the Denunciation of Declarations of Acceptance’, n 296 above; also Francisco Orrego Vicuña, ‘The Legal Nature of the Optional Clause and the Right of a State to Withdraw a Declaration Accepting the Compulsory Jurisdiction of the International Court of Justice’ in Liber Amicorum Judge Shigeru Oda (2002) vol 1, 463–79. 303  ICJ, Military and Paramilitary Activities, Jurisdiction and Admissibility (1984), n 288 above, 398, para 13, emphasis added. 304   Ibid, emphasis added. 305   Ibid 418, para 59.



The Revocability of Promises  269 However, the unilateral nature of declarations does not signify that the State making the declaration is free to amend the scope and the contents of its solemn commitments as it pleases. In the Nuclear Tests cases the Court expressed its position on this point very clearly [citation and reference omitted].306

The judgment continues by citing the passage from the Nuclear Tests cases judgment according to which unilateral acts made with the intention to be legally bound establish a legal undertaking for the state making them.307 In addressing the revocability and modifiability of unilateral undertakings under the Optional Clause, the Court, in other words, referred directly to its finding of the binding force of unilateral under­ takings in the Nuclear Tests cases. As has already been illustrated in chapter one,308 it nevertheless continued by explaining that the declarations, while being unilateral acts, ‘establish a series of bilateral engagements with other States accepting the same obligation of compulsory jurisdiction’. With a series of bilateral engagements established by the declarations under the Optional Clause, it may be worth briefly (re)considering309 whether the ICJ’s findings which followed are relevant for the average promise, which does not give rise to such bilateral engagements. Once posed, the answer must clearly be ‘yes’, it is relevant, because the Court did not treat the engagements established by the various unilateral declarations as treaty engagements, but saw the ‘network’ as being established by various unilateral undertakings. Otherwise, there would have been no need to refer to the Nuclear Tests cases in the first place – pointing to pacta sunt servanda would have been enough and more effective (yet misguided as the undertakings are created by a unilateral act). The Court, in addition, continued by emphasising that good faith played an important role in this ‘network’ of (unilateral) engagements, only to again refer directly to its finding in the Nuclear Tests cases, by incorporating into its judgment the citation according to which good faith serves as the basis of a unilateral act’s bindingness. The Court, in these two passages and in the following, therefore does not establish the limits of the declaration’s revocation in reference to any ‘bilateral’ entanglement created, but in direct reference to its finding on the bindingness of unilateral declarations in the Nuclear Tests cases.310 What it thereby has in fact done is to answer the question which is pressing here, since it established how the good faith principle  Ibid.   See pp 120–21. 308   See p 70. 309   See p 69 et seq. 310   See again p 69 et seq and in particular the references provided in ch one, n 205 and accompanying text. For an analysis of this part of the Nicaragua judgment see also Quintana, ‘The Nicaragua Case and the Denunciation of Declarations of Acceptance’, n 296 above, for whom at 111: ‘declarations under Article 36, paragraph 2 to 5 of the Statute of the Court constitute unilateral acts of states and as such are governed by a special set of rules of international law that accord a privileged place to the principle of good faith’. 306 307

270  The Law on Promises will limit a state’s freedom in terminating its unilateral undertaking. The Court’s finding must consequently be of general relevance for all declarations falling under the ambit of its holdings in the Nuclear Tests cases, from which the Court started its doctrinal analysis, ie for all promises. After having emphasised the importance of good faith in international relations in reliance on its Nuclear Tests cases holding, the ICJ went on to address whether the United States was consequently free simply to disregard its six months notice period for any termination of its 1946 declaration. The US argument, according to which the new notification had not actually contained a ‘termination’ but only a ‘modification’, which as such did not fall under the self-imposed notice requirement, had already been rejected by the Court in the following words: The truth is that it is intended to secure a partial and temporary termination, namely to exempt, with immediate effect, the United States from the obligation to subject itself to the Court’s jurisdiction with regard to any application concerning disputes with Central American States, and disputes arising out of events in Central America.

In now assessing the consequences of the US-announced notice requirement, the Court started by establishing that the United States, by its 1946 declaration, had entered into an obligation vis-à-vis other states parties to the Optional Clause system. The latter are, indeed, the addressees of any Optional Clause declaration and there will be no doubt that an obligation hence existed. In respect of the precise regime allowing its termination, the Court found the following: Although the United States retained the right to modify the contents of the 1946 Declaration or to terminate it, a power which is inherent in any unilateral act of a State, it has nevertheless assumed an inescapable obligation towards other States accepting the Optional Clause, by stating formally and solemnly that any such change should take effect only after six months have elapsed as from the date of notice.

The first of two important findings contained in this passage is that, in the opinion of the Court, the United States, by making its unilateral declaration, retained the right to modify its content or even terminate it, as the latter was ‘a power which is inherent in any unilateral act of a State’. An obligation assumed by a unilateral undertaking is, therefore, not irrevocable in the eyes of the ICJ. In determining the remaining question whether and, if so, which limits exist on a declaration’s revocability, statements which include terms as to their own revocability and those which do not should be distinguished. As seen, the Court went on to address the first category in the above quotation, in respect of which it made its second important finding within this passage. The ICJ considered the United States to have assumed an inescapable obligation vis-à-vis its addressees in respect of the six months notice requirement by ‘formally and



The Revocability of Promises  271

solemnly’ declaring that it would follow this procedure. The ICJ thus held the expressly assumed limit on revocation to be ‘inescapable’ and therefore not itself modifiable or revocable. For unilateral promises in general this means that the bar imposed under ‘good faith‘ in the eyes of the Court is, indeed, that self-imposed limits on a unilateral undertaking’s revocation cannot later be ignored. In this respect, the Court’s ruling backs the ILC’s finding, according to which the limiting character of special terms governing a declaration’s revocation have to be respected. The six-months notice period was therefore found by the Court to be an obligation on the United States; but thanks to the peculiarities of the Optional Clause system, the argument as to whether Nicaragua could invoke the US declaration in a suit before the Court was not fully closed thereby. The United States claimed that since the declaration made by Nicaragua included no time limit for revocation, that declaration was, as a result, freely revocable,311 ie subject to a right of immediate termination at the will of the Nicaraguan state (and not irrevocable as Nicaragua had claimed).312 On the basis of this argument, the United States invoked the reciprocity element established by the ICJ Statute, as under Article 36(2), a state undertakes the obligations included in its unilateral declaration only vis-à-vis ‘any other state accepting the same obligation’. The United States hence argued that since the Nicaraguan declaration was freely revocable, Nicaragua had not ‘accepted the same obligation’ in its statement and, for this reason, could not benefit from the more far-reaching US undertaking. Instead, the United States argued, it should be allowed, vis-à-vis Nicaragua, to benefit from the right of immediate termination flowing from the non-specific Nicaraguan declaration. While the Court already dismissed the US argument invoking reciprocity in order to depart from the terms used in its own undertaking, it nevertheless proceeded to identify that the US argument also hinged on the understanding that declarations which contain no provision as to their length are freely revocable. In this respect, the Court made the following, important finding: Moreover, since the United States purported to act on 6 April 1984 in such a way as to modify its 1946 Declaration with sufficiently immediate effect to bar an Application filed on 9 April 1984, it would be necessary, if reciprocity is to be relied on, for the Nicaraguan Declaration to be terminable with immediate effect. But the right of immediate termination of declarations with indefinite duration is far from established. It appears from the requirements of good faith that they should be treated, by analogy, according to the law of treaties, which requires a reasonable time for withdrawal from or termination of treaties that contain no provision regarding the duration of their validity. Since Nicaragua has in fact not manifested any intention to withdraw its own declaration, the question of what reasonable period of notice would legally 311   See ICJ, Military and Paramilitary Activities, Jurisdiction and Admissibility (1984), n 288 above, 416, para 55. 312   Ibid 417, para 56.

272  The Law on Promises be required does not need to be further examined: it need only be observed that from 6 to 9 April would not amount to a ‘reasonable time’.313

According to the ICJ, unilateral declarations of ‘infinite duration’ therefore may not be terminated immediately. Instead, and following from the requirements of good faith, they require a ‘reasonable’ time for withdrawal. Since three days notice was clearly not a reasonable period, the ICJ did not have to go into more detail at this point. In the just cited paragraphs, the Court has therefore found declarations under the Optional Clause to be unilateral declarations which on account of good faith requirements cannot be freely revoked or amended. Instead, a ‘reasonable’ time for any withdrawal is necessary. What the ICJ has thereby said is that flowing from good faith (and in direct reference to the Nuclear Tests cases): (1) unilateral declarations are revocable, (2) where special terms have been included on their revocability these have to be followed, and (3) unilateral declarations not containing any provision can only be terminated after notice has been given beforehand and after a ‘reasonable’ time has passed. It is interesting to see that the Court has argued by analogy to the law of treaties in order to establish the ‘reasonable’ period of revocation. It has thereby drawn a very different consequence from the analogy than most scholars have done, for whom a parallelism to the law of treaties has usually been thought to impose much stricter limitations. The reason for this difference in the outcome of the treaty analogy is that the ICJ has focused only on and jumped straight to Vienna Convention, Article 56(2), when it referred to unilateral declarations of infinite duration to be treated similarly to treaties that contain no provision for their termination. Article 56 reads in full: Denunciation of or withdrawal from a treaty containing no provision regarding termination, denunciation or withdrawal 1.  A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty. 2.  A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.

Under Article 56(1), treaties which contain ‘no provision regarding termination, denunciation or withdrawal’ are hence usually not subject to denunciation or withdrawal. Only where it was otherwise intended or 313  ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, Judgment of 27 June 1986, [1986] ICJ Rep 14, 419–20, para 63, emphasis added.



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implied by the nature of the treaty may a party denounce or withdraw from a treaty under the 12 months’ notice requirement in Article 56(2). The ICJ, nevertheless, went straight to paragraph (2) in its analogy, which is in keeping with its finding that a unilateral undertaking may generally be revoked. The ICJ thereby appears to be assuming an analogy to Article 56(1)(b) and hence to treaties where ‘a right of denunciation or withdrawal may be implied by the nature of the treaty’. The nature of the unilateral act, in other words, opened the gateway for applying Article 56(2) by analogy. Even though the ICJ was, as seen, not required to pronounce on the exact time-span required under a ‘reasonable’ notice period, its allusion to paragraph (2) of this Article therefore points to a minimum requirement of ‘12 months’ notice’.314 In continuing to follow the ICJ’s jurisprudence as guidance in this field, the more flexible approach to the revocation of promises, which imposes less restraints on the revocation of a promise than those found in the Vienna Convention for the typical treaty, can be fleshed out in the way just shown.315 In light of the apparent consensus on how to treat a number of specific scenarios, it is their interplay with these findings which remains to be determined. E  Consolidating the Approach: A Ground Rule from which to Deviate in Specific Circumstances As seen, good reasons militate in favour of a more lenient regime on revocation of obligations undertaken by promises than that in place for treaty undertakings under the Vienna Convention.316 In following the Court’s 314  On this aspect see also Quintana, ‘The Nicaragua Case and the Denunciation of Declarations of Acceptance’, n 296 above, 115–18, who emphasises that the determination of what is reasonable will depend on the circumstances of the particular declaration. Quintana is himself inclined to consider a shorter period of six to nine months, with a minimum of three months, a reasonable period for termination of declarations under ICJ Statute, Art 36(2) but admits that ‘there is strong evidence which suggests that an analogical application of this standard [ie requiring 12 months’ notice] to Article 36 declarations would meet with a favourable response from the Court’, at 116. 315   Among the relatively few states (12) that have responded to the ILC’s first questionnaire, it is especially the reply by Israel to the (very broad) question on the revocability of (all) unilateral acts which reflects such a ‘flexible position’ on the revocation of promises. For Israel, a state can limit its right of revocation, but where it does not do so ‘the possibility of revocation, subject to certain conditions, should be accepted . . . In this regard it is worth examining whether the principle of good faith, for example, should require that reasonable notice be given prior to revocation, though such a condition may not be practical in every instance’, in ILC, Government Replies to the Questionnaire, n 2 above, 20–21. 316   Besides the arguments and references provided above, see also the evaluation of the present legal regime on declarations under the Optional Clause after the Nicaragua judgment by Quintana, ‘The Nicaragua Case and the Denunciation of Declarations of Acceptance’, n 296 above, 119, which, mutatis mutandis, also rings true for promises in general: ‘the Court’s position reflects a compromisory, equilibrated view on the subject, which denies validity to both the unreal proposition that Optional Clause declarations embody perpetual commitments,

274  The Law on Promises elaboration on the limits imposed by good faith on the revocation of unilateral declarations under the Optional Clause (and established in direct reference to the Nuclear Tests cases), the ‘compromise’ to be achieved in protecting the declarant’s freedom of self-determination and the bene­ ficiaries’ expectations thereby looks as follows. Functioning as its cornerstone is the rule that promises are revocable, yet not ‘freely and at any time’. Revocation instead requires ‘reasonable notice’ to be given to the addressee, in which a state announces its intention to revoke its promise. This prior warning and the period which follows until a revocation can become effective protect the addressee by allowing it to adapt to the declarant’s new position. In following the consensus reflected in Article 56(2) for generally terminable treaty obligations to which the ICJ has pointed, this period appears usually to require a state to announce its intention to revoke (at a minimum) 12 months before its undertaking is to cease having its effect. As actus contrarius, such notice can be delivered in the same way as the original undertaking. For erga omnes obligations this would in particular mean that another public statement is sufficient, and required, in which a state declares its intention to rescind its undertaking, effective (at the earliest) 12 months after the pro­ clamation has been made. While this is the ‘ground rule’, the revocation of promises will be treated differently where ‘specific circumstances’ are present. To begin with, where special terms are included in the original declaration, these will govern an undertaking’s revocability and thereby impose tighter or lesser limitations. A fundamental change in circumstances, the treatment of which appears to be generally agreed upon, may, according to the ILC, allow for a state to ‘rescind’ its obligation. Under the depicted framework such a fundamental change is not a necessary requirement for a declaration to be revoked; however, the ‘fundamentally changed’ circumstances (which should include a supervening impossibility of performance) might allow the declarant to revoke its declaration without having to adhere to the notice period usually required.317 In a similar vein, and at the opposite side of the spectrum, revocation may still be completely barred under the distinct (but in this respect important) international law principle of estoppel, whereby an addressee who has altered its position reasonably and to its detriment will be protected.318 Under the ‘no arbitrary‘ revocation rule, the rare cases of clearly abusive behaviour (ie revoking an undertaking in order to harm the addressee) will also remain prohibited. The ground frozen to eternity, and the somewhat cynical view according to which states can withdraw their acceptances of the jurisdiction just as easily as they have made them. While the former would be dangerously idealistic and could even give origin to a débandade from the Court, the latter would render completely illusory the notion of a compulsory jurisdiction’. 317   For the Vienna Convention’s approach, see Art 65 et seq. 318   For more see p 277 et seq.



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rule of allowing revocation when coupled to a reasonable notice period is therefore fully compatible with the ILC’s Guiding Principle 10 which, as seen, provides exceptions for specific scenarios at both ends of the spectrum, however, the lacuna in respect of how to treat the ‘average’ promise is now filled. In the assessment whether or not a declaration was ‘arbitrarily revoked’, the question whether or not ‘reasonable notice’ has been given would therefore have to be added. The ILC’s Guiding Principle 10 could hence be altered to read as follows: Guiding Principle on the Revocability of Promises: 1.  A promise can be revoked, but not arbitrarily. In assessing whether or not a revocation is arbitrary, consideration should be given to: (a) whether the declarant has given reasonable notice to its addressee before revoking the undertaking; (b) whether the declarant acts in accordance with specific terms included in its declaration and relating to revocation; (c) whether the declarant can claim a fundamental change of circumstances as having taken place, which should allow it to terminate its undertaking even without adhering to the declaration’s terms or the usually required reasonable notice period. 2.  A promise cannot be revoked where the addressee has not only relied on it, but has in addition reasonably been led to alter its position in a such a way according to which it would now suffer detriment should the undertaking be revoked.

Since the estoppel principle has little to do with the question whether or not the declarant has good reasons to revoke its undertaking, and hence whether that state acts ‘arbitrarily’ in revoking its declaration or not, estoppel has received its own paragraph in the amended Principle presented above. Besides these grounds, which allow for an undertaking’s revocation, there are other aspects which will lead to the automatic termination of a unilateral promise. They have already been addressed above as being fairly unproblematic and will be recalled to include the following three scenarios: where (1) the right received through the declarant’s undertaking is rejected by the addressee, (2) the beneficiary consents to terminate the undertaking, or (3) a condition or time limit was included in the declaration itself.319 F  Concluding Remarks on the Revocability of Promises There can be little doubt that, when depicting the law on promises, the ice we are moving upon becomes at its thinnest when addressing the power of a state to revoke the obligations assumed by its unilateral pledge. The 319

  See pp 262–63.

276  The Law on Promises above approach has progressed step by step by first presenting the areas where the ground is relatively stable. Whether a state is allowed to revoke its undertaking or not in the special scenarios covered by the Guiding Principles is, as seen, much clearer than whether it may generally do so or not. Once the ‘ground rule’ for promises was addressed, the waters therefore became muddier and the solution provided above cannot claim to reflect the law, which is, as such, already firmly entrenched. In this respect there is simply too much disagreement, too little state practice and only limited jurisprudence. However, what can and has been done is to fill out the blanks resulting from an agreement only on how to deal with special scenarios, in depicting the direction the road is currently taking. We have done so not only by using (in this writer’s opinion) the best arguments as guidance, but by following a strong tendency that is visible within the ILC (as has been seen, it has even been identified as the ‘mainstream position’ therein)320 which opted for a more flexible approach. The latter is furthermore strongly supported and was fleshed out with meaning by the ICJ’s decision in the Military and Paramilitary Activities case on jurisdiction and admissibility, a decision which in the context of a promise’s revocation has not received its deserved attention. As such, the above depicted amended Guiding Principle 10 presents a legal scenario which, as to its ‘ground rule’, would therefore benefit from more support, especially from state practice and jurisprudence. Its outline is, however, clearly discernable and the resulting legal framework appears to be well balanced. VII  MODIFYING PROMISES

On the issue of the modification of promises, the finding by the ICJ in response to the US argument that it was merely modifying and not revoking its undertaking in the Military and Paramilitary Activities in and against Nicaragua case (as cited above)321 can be taken to have led the way. Where a state intends to modify its promise only in order to avoid the original obligation, this modification will be treated as a partial or temporary revocation that is consequently governed by the rules applicable to a promise’s revocation. As the same reasoning on limiting a state’s power of revocation applies for these sort of amendments, the ICJ’s approach is indeed the only sensible one. Although Guiding Principle 10 expressly addresses only limits on a unilateral declaration’s revocation, the Commentary thereto also backs this position, as it considers a state’s power of ‘arbitrary withdrawal (or amendment)’ to be excluded.322 The criteria considered   See Tomuschat, ‘Unilateral Acts’, n 43 above.   See p 270. 322   ILC, Guiding Principles with Commentaries, n 46 above, 380, Commentary to Guiding Principle 10, para 1. 320 321



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applicable to an undertaking’s revocation will hence be equally applicable for amendments which only restrict the scope of an undertaking without, however, completely rescinding it.323 Where a state modifies its under­ taking by extending its obligations, it may do so freely and with no other restrictions than those imposed on all promises under international law (ie especially no ius cogens infringements). VIII  PROMISES AND ESTOPPEL

The principle of ‘estoppel’ has surfaced not only during the work and debates within the ILC,324 but also in various scholarly writings on the legal effects of unilateral acts in general or promises in particular.325 As just seen above in addressing the question of a promise’s revocability, this study makes no exception. To some extent, the following pages can be read as an extended footnote to the (informed) finding above, according to which estoppel will hinder a state from revoking its promise (only) in the (exceptional) cases where its (below listed) prerequisites are met. That an entire section rather than an actual footnote is required in this respect is explained by the fact that the uncertainties connected to the estoppel principle, characterised as a ‘concept in evolution’326 that lacks ‘particular coherence’,327 are probably as numerous as those raised by the existence of legally binding promises themselves. In order to describe the interplay of the two principles, it is therefore necessary first to briefly identify and summarise the characteristics of estoppel, before proceeding to illustrate its relationship to promises. A Estoppel The history of the international law principle of ‘estoppel’ (sometimes also referred to as the rule of preclusion) and its evolution to its present   See also Sicault, ‘Engagements unilatéraux’, n 70 above, 665.   For the Special Rapporteur see Cedeño, First Report, n 12 above, 24–25, paras 128–31; Cedeño, Second Report, n 209 above, 3–4, paras 11–14; Cedeño, Third Report, n 97 above, 6, paras 23–27; Victor Rodriguez Cedeño, Seventh Report on Unilateral Acts of States, UN Doc A/CN.4/542 (2004) 76–77, paras 196–201. For discussions within the Commission and the different opinions expressed therein, see, eg ILC, Report of its Fiftieth Session, A/53/10, n 264 above, 55, para 158 et seq; ILC, Report of its Fifty-second Session, A/55/10, n 194 above, 92, para 539 et seq. 325   See, eg Fiedler, ‘Einseitige Versprechen’, n 86 above, 46–48; Gigante, ‘Unilateral State Acts’, n 67 above, especially 347 et seq; Jacqué, ‘Promesse unilatérale’, n 97 above, 335–39 and Jacqué, Eléments, n 221 above, 256; Suy, ‘Unilateral Acts as a Source’, n 260 above, 640–41. 326   Müller and Cottier, ‘Estoppel’, n 25 above, 116. 327   Brownlie, Principles, n 1 above, 644. 323 324

278  The Law on Promises form has been described in various scholarly writings.328 Coming from the Anglo-Saxon domestic concept of the same name, it is now established and accepted in international law as a distinct and independent international legal principle. The ICJ, too, has recognised it by discussing its application to the facts before it in various cases and has thereby, as will be seen, helped to identify more closely the contours of estoppel under international law. Despite the introductory caveat according to which estoppel is still evolving and lacks coherence, there is hence ample material available in order to try to establish its characteristic features. A perusal of the doctrine and jurisprudence reveals the following. Where applicable, estoppel will hinder the state against which it is invoked from acting in a manner deemed ‘inconsistent’ with its previously made allegations or earlier behaviour. As such, the ‘typical effect’ of estoppel has been identified as barring a state ‘without regard to truth and accuracy, from adopting successfully different subsequent statements on the same issue’.329 Where a state should try to do so, it is ‘estopped’, or ‘precluded’, from acting as intended. Whether estoppel functions only as a procedural principle which hinders inconsistent behaviour to be relied on before a court, or as a material rule of substantive international law, has been subject to some disagreement. Its substantive material value has, however, been described as now ‘generally accepted’.330 Even if this finding appears to be a slight exaggeration in light of various scholarly writings to the opposite,331 the general tendency in legal doctrine indeed appears to move in that direction.332 The ICJ’s jurisprudence has, in addition, been convincingly shown to reflect an understanding of estoppel that goes beyond its use as a merely procedural tool which has effect only by hindering a certain position, and allowing evidence of its ‘truth’ to be 328   See, eg DW Bowett, ‘Estoppel before International Tribunals and its Relation to Acquiescence’ (1957) 33 British YB International Law 176; C Dominicé, A propos du principe de l’estoppel en droit des gens (1968); Antoine Martin, L’estoppel en droit international public précédé d’un apercu de la théorie de l’estoppel en droit anglais (Paris, 1979); IC MacGibbon, ‘Estoppel in International Law’ (1958) 7 International and Comparative Law Quarterly 468. See also Müller, Vertrauensschutz, n 89 above, 5 et seq; Kolb, La bonne foi, n 5 above, 357–93. Further references provided by Müller and Cottier, ‘Estoppel’, n 25 above, 118–19. 329   Müller and Cottier, ‘Estoppel’, n 25 above, 116. 330   Ibid 117. 331   See especially Martin, L’estoppel, n 328 above, 263–71 and the further references provided by Kolb, La bonne foi, n 5 above, 383, note 179. As Kolb empasises, Martin, however, indeed seems to draw his conclusion that estoppel operated only as a procedural defence largely from its ‘defensive character’. Yet, ‘[l]a question de savoir à quel niveau opère cette défense, celui de la preuve ou celui du droit subjectif, est distincte’, Kolb, La bonne foi, n 5 above, 385. 332   For scholarly support see especially Kolb, La bonne foi, n 5 above, 384 with further references. Fitzmaurice, writing in 1961, and referring to the ‘rule of preclusion’ as the nearest equivalent in the field of international law to the common law rule of estoppel, wrote that it was ‘certainly applied as a rule of substance and not merely as one of evidence or procedure’, see ICJ, Temple of Preah Vihear (Cambodia v Thailand), Preliminary Objections, Separate Opinion Fitzmaurice [1961] ICJ Rep 52, 62. See also MacGibbon, ‘Estoppel’, n 328 above, 512.



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heard by a tribunal.333 By considering estoppel to be a substantial principle its defensive, shielding character is, of course, not denied – it remains a defence, but one applicable as a substantive rule of international law.334 In respect of estoppel’s requirements, two different concepts have been advanced and it is essential to distinguish a ‘wide’ understanding of estoppel from the (now dominant) more restrictive interpretation of the same principle. Under the former, estoppel functions as a ‘general rule of inconsistency’ which has its legal effect irrespective of any detriment found to exist on the part of any third and interested state. Understood this way, a state, in the words of MacGibbon, ‘ought to maintain towards a given factual or legal situation an attitude consistent with that which it was known to have adopted with regard to the same circumstances on previous occasions’.335 The result would be that a state which has adopted and made known a position at a given time will have to stick to it, as any subsequent change of position would be barred as ‘inconsistent’ behaviour. On the basis of this understanding, state action could and would regularly trigger estoppel, which may in part explain why Brownlie has found ‘a tendency among writers to refer to any representation and conduct having legal significance as creating estoppel, precluding the author from denying the “truth” of the representation, express or implied’.336 Under the more sensible337 restrictive approach, a state is estopped from changing its behaviour only where doing so would prejudice or result in a detriment for another state, because the latter has altered its behaviour in legitimate reliance on the former state’s conduct.338 As estoppel is said to focus on the detriment which a declaration causes to the addressee in relation to the declarant, it will also apply where the declaration results merely in an advantage for the declarant state.339 Under the narrower   See the analysis provided by Kolb, La bonne foi, n 5 above, 383–85.   See also Kolb, La bonne foi, as cited in n 331 above. 335   MacGibbon, ‘Estoppel’, n 328 above, 512. 336   Brownlie, Principles, n 1 above, 643. 337   For criticism of the wider notion see, eg Kolb, La bonne foi, n 5 above, 369–70 and Müller and Cottier, ‘Estoppel’, n 25 above, 117. 338   This ‘altered’ behaviour might also consist of having done ‘nothing’, ie having refrained from acting, where a state would otherwise have acted. 339   In this respect the following passage taken from Fitzmaurice’s separate opinion in the Temple of Preah Vihear case is commonly referred to: ‘The essential condition of the operation of the rule of preclusion or estoppel, as strictly to be understood, is that the party invoking the rule must have “relied upon” the statements or the conduct of the other party, either to its own detriment or to the other’s advantage. The often invoked necessity for a consequent “change of position” on the part of the party invoking preclusion or estoppel is implied in this. A frequent source of misapprehension in this connection is the assumption that change of position means that the party invoking preclusion or estoppel must have been led to change its own position, by action it has itself taken consequent on the statements or conduct of the other party. It certainly includes that: but what it really means is that these statements or this conduct, must have brought about a change in the relative positions of the parties, worsening that of the one, or improving that of the other, or both’, ICJ, Temple of Preah Vihear, Preliminary Objections, Separate Opinion Fitzmaurice (1961), n 332 above, 63. 333 334

280  The Law on Promises concept it is hence merely such ‘detrimental behaviour’ which is barred, and it is barred precisely in order to protect the reliance legitimately placed on the conduct or declarations of the other state. In other words: ‘[c]lear and unequivocal representation, prejudice or detriment are not simply addenda; they trigger the very justification for specific protection of settled expectations’.340 Not every change of position is therefore immediately considered ‘inconsistent’ behaviour, as the reason for hindering a state from changing its position lies less in the changed behaviour as such, but primarily in the protection of the legitimate expectations raised in the other state. If the latter has legitimately placed reliance on another state’s conduct, it should not suffer any harm therefrom.341 Between these two competing notions of estoppel, legal doctrine, after leaning towards the wider version, has now taken a fairly clear stand in favour of the narrower concept,342 which is also strongly supported by numerous, and more recent, ICJ judgments. It was in its 1969 judgment in the North Sea Continental Shelf cases (later, in 1984, self-characterised by the Court as ‘apparently . . . the judgment that gave the most precise definition of the conditions for invoking the doctrine of estoppel’)343 that the ICJ very clearly opted in favour of a more restrictive understanding of the estoppel principle. There, it said: it appears to the Court that only the existence of a situation of estoppel could suffice to lend substance to this contention – that is to say if the Federal Republic were now precluded from denying the applicability of the conventional regime, by reason of past conduct, declarations, etc, which not only clearly and consistently evinced acceptance of that regime, but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice.344   Müller and Cottier, ‘Estoppel’, n 25 above, 117.   See Müller, Vertrauensschutz, n 89 above, 11: ‘Es kommt zum Ausdruck, daß die estoppel-Doktrin eben genau betrachtet nicht bei einem generellen Verbot widersprüchlichen Verhaltens anknüpft, sondern bei der sozialen Notwendigkeit, daß eine Partei, durch das nach den Umständen berechtigte Vertrauen in das Handeln der andern nicht geschädigt oder sonst benachteiligt werden darf’. (My translation: ‘What this means is that the estoppel doctrine, when regarded up-close, does not actually focus on a general prohibition of inconsistent behaviour, but concentrates on the social necessity that a party may not be harmed or disadvantaged by its, in view of the circumstances, legitimate reliance on the actions of others’). 342   Müller and Cottier, ‘Estoppel’, n 25 above, 117. 343  ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States), Judgment of 12 October 1984, [1984] ICJ Rep 246, 309, para 145. 344  ICJ, North Sea Continental Shelf (1969), n 159 above, 26, para 30. For earlier jurisprudence already moving in this direction see especially ICJ, Barcelona Traction, Light and Power Co, Ltd, Preliminary Objections, Judgment of 24 July 1964, [1964] ICJ Rep 6, 25, where the Court in respect of the estoppel claim before it was ‘not able to hold that any true prejudice was suffered by the Respondent’. For other and older judgments, some of which are in favour of the restrictive understanding of estoppel, some in support of the wider notion, and the various views expressed in the separate opinions in ICJ, Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment of 15 June 1962, [1962] ICJ Rep 6, see Martin, L’estoppel, n 328 above, 73–173. 340 341



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The Court confirmed this finding in the Military and Paramilitary Activities in and against Nicaragua judgment, using the words to which the ILC has made reference in its comment on a promise’s revocability and which have already been mentioned in that context. The relevant paragraph will be recalled to read as follows: Furthermore, as the Court pointed out in the North Sea Continental Shelf cases [references omitted], estoppel may be inferred from conduct, declarations and the like made by a State which not only clearly and consistently evinced acceptance by that State of a particular regime, but also had caused another State or States, in reliance on such conduct, detrimentally to change position or suffer some prejudice.345

Since then, the ICJ has continued to confirm the requirement of detrimental reliance in further holdings and it has done so by adopting very clear wording.346 In light of this development it is therefore no exaggeration to speak of a consistent jurisprudence in this respect. Under the narrower concept, estoppel is hence described by legal doctrine to be applicable where the following factors are present:347 (1) a state’s conduct or a declaration which is clear and unequivocal; (2) triggering the effective, legitimate reliance in good faith of another subject of international law on that conduct or declaration and inciting it to act or refrain from acting in a way which (3) would result in a detriment or prejudice were the state against which estoppel is invoked now allowed to alter its position. In respect of criterion (1), it is the declaration rather than the conduct which is of primary interest here, as promises necessarily require an express declaration.348 Having an eye already on the relation between promises and estoppel, it may be questioned whether a single declaration as such can give rise to an estoppel, or whether numerous ‘consistent’ declarations would always be required (see the ICJ quotations above). 345  ICJ, Military and Paramilitary Activities, Jurisdiction and Admissibility (1984), n 288 above, 415, para 51. 346   See ICJ, Land, Island and Maritime Frontier Dispute (El Salvadore v Honduras), Application by Nicaragua to Intervene, Judgment of 13 September 1990, [1990] ICJ Rep 92, 118, para 63: ‘So far as Nicaragua relies on estoppel, the Chamber will only say that it sees no evidence of some essential elements required by estoppel: a statement or representation made by one party to another and reliance upon it by that other party to his detriment or to the advantage of the party making it’; ICJ, Land and Maritime Boundary (Cameroon v Nigeria: Equatorial Guinea Intervening), Preliminary Objections, Judgment of 11 June 1998, [1998] ICJ Rep 275, 303, para 57: ‘An estoppel would only arise if by its acts or declarations Cameroon had consistently made it fully clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral avenues alone. It would further be necessary that, by relying on such an attitude, Nigeria had changed position to its own detriment or suffered some prejudice’. 347   For the following see especially Martin, L’estoppel, n 328 above, 294 et seq; also Kolb, La bonne foi, n 5 above, 359 et seq with numerous further references. 348   Whereby it forms an exception to most other unilateral acts which may be made implicitly, see p 78 and p 29 et seq.

282  The Law on Promises As Kolb emphasises, however, repetition will only be one of numerous means to strengthen the impact of a state’s declaration or behaviour: ‘[l]es actes sans assise temporelle doivent compenser par leur solemnité, leur importance et d’autres circonstances l’absence continuité’.349 A single, solemn declaration may hence be sufficient. In respect of the declaration itself, international law does not distinguish between declarations of fact and declarations of law, and will apply estoppel to both sort of statements made.350 The Court, as quoted, has indeed applied estoppel to the question whether a state had accepted a certain legal regime. In order for a state to be estopped by a declaration or action, the latter will have to be attributable to it. In other words, and similar to what has been said about promises, for a declaration to have an estoppel effect, it needs to have been issued by a competent organ. It must also have been made ‘freely’, ie not under illegitimate pressure or other influences rendering the will expressed defective.351 Under criterion (2) effective ‘legitimate’ reliance is required.352 Whether reliance has been legitimate or not, is, of course, a judgment call and here again an ‘objective’ analysis will be required along the lines of whether or not a state could have reasonably relied on the statement made.353 This important question will be taken up again, when turning to the interplay of estoppel and promise below. Criterion (3) is, as seen, also of heightened importance. Under it, the addressee must, as a result of its legitimate reliance, suffer a prejudice should the declarant be allowed to alter its position. Whether estoppel necessarily requires a material damage, or may take into account immaterial damages suffered, is not entirely clear, yet there is a good argument to be made that a monetary disadvantage is not presently required for estoppel to be triggered.354 The detriment must in any event not be too remote. In order for the requirement of ‘detrimental reliance’ to function as a true criterion, it is furthermore clear that the discontinuance or nonperformance of the expected (beneficial) behaviour as such is not enough, because if the ‘non-fulfilment’ of a declaration that indicated a position 349   Kolb, La bonne foi, n 5 above, 360. The PCIJ in the Serbian Loans case indeed spoke of a clear and unequivocal representation: ‘it is quite clear that no sufficient basis has been shown for applying the principle [of estoppel] in this case. There has been no clear and unequivocal representation by the bondholders upon which the debtor State was entitled to rely and has relied. There has been no change in position of the debtor State’, PCIJ, Serbian Loans, Judgment of 12 July 1929, Series A 20, 4, 39. 350   For this question see Kolb, La bonne foi, n 5 above, 361 et seq; Müller, Vertrauensschutz, n 89 above, 10, note 22; Elihu Lauterpacht, ‘The Development of the Law of International Organization by the Decisions of International Tribunals’ (1976) IV Recueil des Cours de l’Académie de Droit International de La Haye 377, 462; also Martin, L’estoppel, n 328 above, 274. 351   See Bowett, ‘Estoppel’, n 328 above, 190; Martin, L’estoppel, n 328 above, 276–86 and Kolb, La bonne foi, n 5 above, 373–77, the latter with further references. 352   See Kolb, La bonne foi, n 5 above, 364–65. 353   For more see Martin, L’estoppel, n 328 above, 289–93. 354   For more see Kolb, La bonne foi, n 5 above, 366 et seq.



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favourable to another state was itself to serve as the required detriment, the criterion would lose its value, whereby the difference between the narrow and the extensive understanding of estoppel would be diminished. The idea is that estoppel will protect the addressee from suffering a detriment as a result of having relied on the statement (‘detrimental reliance’); in other words, a detriment which it would not have suffered had the declaration never been made. This is why the declarant state, which chose to announce its position, is not allowed now to harm the other state by altering it. What is required is therefore a detriment other than the simple loss of the advantage provided in the declaration itself.355 Against such a detriment, the beneficiary is protected through estoppel. B  Promises and Estoppel: Distinct but Interacting Legal Principles On the basis of the above sketched features, the relation of the estoppel principle to the doctrine of promises can now be addressed. (i)  Two Distinct Legal Principles To begin with, it is clear that the position held by Schwarzenberger in 1957, for whom the ‘typical minimum effect’ of a unilateral act was that of an estoppel,356 is by now untenable, as otherwise the evolution towards a general acceptance of the requirement of ‘detrimental reliance’ for estoppel to be invoked would simply be ignored. Schwarzenberger’s analysis at the time was squarely based on the broad understanding of estoppel as a general rule of inconsistency.357 Where only some sort of impending prejudice will allow a state to invoke estoppel under the (now dominant) narrower concept of that principle, not every unilateral act (protests completely aside) can be said to have an estoppel effect. Surely, not every promise will therefore lead to an estoppel. For this reason alone, it is also not convincing to go as far as to ground the binding effect of promises, or that of all unilateral acts, on the estoppel principle. When Gigante did so in his note written in 1969, he, too, assumed the requirement of detrimental reliance not to be a necessary prerequisite and a ‘broadened’ concept of estoppel to be applicable in   See especially ibid 369.   Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, 3rd edn (London, 1957) vol 1, 553. 357   For Schwarzenberger, whom Kolb characterised as being particularly liberal in the application of estoppel, see Kolb, La bonne foi, n 5 above, 366, note 67, under estoppel: ‘a subject of international law is precluded from denying the truth of a statement made earlier by a duly autorized representative of the existence of a fact in which such representative has by word or conduct led others to believe’, Georg Schwarzenberger, A Manual of International Law, 5th edn (London, 1967) 631. 355 356

284  The Law on Promises international law. Only on the basis of this finding, which was supported by other scholarly writings at the time and some jurisprudence, could Gigante conclude that ‘a unilateral act, without resulting in detrimental reliance by the addressee or benefit to the declarant can, nevertheless, lead to an estoppel’.358 At the time of writing, Gigante, however, did not have the ICJ’s ruling in the North Sea Continental Shelf cases (issued that very year) before him, as it does not appear in his analysis of the Court’s jurisprudence; nor was he, of course, able to foresee the Court’s and legal doctrine’s subsequently clear positioning in favour of the criterion of detrimental reliance.359 Once it is accepted as one of the ‘essential elements required by estoppel’,360 the bindingness of a unilateral act, and especially that of promises, cannot be based on estoppel, since no such requirement exists in order for such unilateral undertakings to become binding. In respect of the binding nature of promises, the ICJ’s jurisprudence leaves no room for doubt in this regard, as it considers no reaction of any sort, let alone any comportment to its detriment, to be necessary on the part of the addressee: ‘nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other states, is required for the declaration to take effect’.361 The Court, in addition, had at no point argued for the effect of ‘foreclosure’ or ‘estoppel’ in the Nuclear Tests cases. Instead, it understood the declarations to have resulted in a binding obligation, as they were found to evince their declarant’s intention to become bound. While Müller and Cottier in their article on estoppel concede that the ICJ in the Nuclear Tests cases did not refer to estoppel, they propose that: estoppel could provide a more specific scheme to explain the binding effect of these statements. It is suggested that such declarations were intended to induce a certain conduct by the Court and the other parties, which, if the declarations were not observed, would be detrimental to the addressees.362

But even this proposal is more than doubtful, because the question under estoppel would not so much be whether the declarations were ‘intended to induce a certain conduct’, but whether they reasonably could and actually have encouraged another state to alter its behaviour. No such alteration, and hence detrimental reliance, was, however, present in the case before the Court. As Australia and New Zealand considered the declarations made by France as insufficient, they clearly did not make any additional dispositions (or refrained from taking certain action) in the belief   Gigante, ‘Unilateral State Acts’, n 67 above, 351.   See p 279 et seq. 360  ICJ, Land, Island and Maritime Frontier Dispute (El Salvadore v Honduras), Application to Intervene (1990), n 346 above, 118, para 63. 361  ICJ, Nuclear Tests (Australia v France) (1974), n 6 above, 267, para 43, emphasis added. 362   Müller and Cottier, ‘Estoppel’, n 25 above, 118. 358 359



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that the statements would be fulfilled. Even with reliance assumed, there is also no indication that either state would have suffered an additional detriment as a result of having trusted France, should the latter threaten to begin another series of tests, other than that their expectations in the declarations made would have been disappointed. In this context, a remark on the considerable drawbacks which would result from estoppel forming the basis of a promise’s legal effect should be made. Estoppel is a very strict ‘all-or-nothing’ principle, as it leads, once triggered, to (complete) foreclosure. A state which was up until now free to alter its behaviour is, via estoppel, suddenly hindered completely from doing so, as contrary claims are ignored; estoppel thereby provides for no middle ground, nor does it gradually increase the protection of the addressee by, for example, only temporarily hindering the declarant from altering its behaviour. For promises, estoppel where applicable will result in full irrevocability in practice, as every alteration is barred in view of the detriment caused as the adoption of a contrary position is ignored and cannot become legally effective. Were the binding legal effect of promises based on estoppel, they would, as a result, have very different legal features from the ones depicted above: promises would, as such, be devoid of a legal effect when made, and they could not simply be relied upon by an addressee.363 Instead, their (then very strict) legal effect would only be triggered where the addressee alters its behaviour in a particular way (ie to its detriment). This last aspect underlines estoppel’s primary raison d’être which is not so much that of fostering trust in state declarations as such but to keep imminent damage at bay.364 The ICJ has therefore taken a very different dogmatic route when it assumed a unilateral pledge to become binding as such and to create an ‘international obligation’ which can be trusted by the addressees who are ‘entitled to require that the obligation thus created be respected’.365 The Court not only refrained in the Nuclear Tests cases from taking recourse to estoppel, but it has in its subsequent decisions continued to distinguish between the two lines of reasoning. In none of the judgments in which it referred to the Nuclear Tests cases in analysing whether a state’s declaration was a binding assurance has the Court raised the question whether a detriment had been suffered by the addressee, nor has it used the lack   See also Fiedler, ‘Einseitige Versprechen’, n 86 above, 47.   See ibid 48, for whom promises in the ambit of the estoppel principle might receive additional, validating support therefrom but whose bindingness cannot be wholly based on that principle: ‘Die Begründung der Verbindlichkeit einseitiger Versprechen aus Treu und Glauben oder estoppel muß sich der dogmatischen Folgen und vor allem der praktischen Auswirkungen bewusst sein. Insgesamt gesehen kann die Lokalisierung des völkerrechtlichen Versprechens in der Einwirkungszone von estoppel nur eine ergänzende, flankierende Absicherung bewirken, nicht jedoch die Verbindlichkeit völkerrechtlicher Versprechen selbst umfassend belegen’. 365  ICJ, Nuclear Tests (Australia v France) (1974), n 6 above, 268, para 46. 363 364

286  The Law on Promises thereof in order to explain its finding that no obligation existed. In all these cases, its jurisprudence on the principle of estoppel was not referred to in establishing the legal principles involved; and vice versa the same is true: in none of the above-cited judgments which have addressed estoppel is a reference to the ICJ’s own jurisprudence on promises included. And rightly so, as they are, as seen, distinct in their legal features. The fact that most of legal doctrine366 has followed the Court by not taking recourse to estoppel in order to explain a promise’s binding force is, for the above-mentioned reasons, therefore to be supported. Two questions, however, remain to be answered: the first is whether a promise can nevertheless lead to estoppel, provided that the latter’s prerequisites are met; and the second is whether a declaration which indicates a state’s future action, but is not a promise under the interpretative standard described above, may nevertheless estopp the declarant from later changing its behaviour. (ii)  Promises Triggering Estoppel Turning to the first question, whether a declaration that is held to be a promise can also lead to an estoppel, might at the very outset trigger the counter question whether this inquiry is not really superfluous. Since promises are already binding undertakings, what would an additional estoppel effect have to add? Fitzmaurice in his separate opinion in the Temple of Preah Vihear case stressed that where an obligation exists, there is no need for estoppel, in the following words: However, in those cases where it can be shown that a party has, by conduct or otherwise, undertaken, or become bound by, an obligation, it is strictly not necessary or appropriate to invoke any rule of preclusion or estoppel, although the language of that rule is, in practice, often employed to describe the situation. Thus it may be said that A, having accepted a certain obligation, or having become bound by a certain instrument, cannot now be heard to deny the fact, to ‘blow hot and cold’. True enough, A cannot be heard to deny it; but what this really means is simply that A is bound, and, being bound, cannot escape from the obligation merely by denying its existence. In other words, if the denial can 366   As portrayed at p 201 et seq, the vast majority of scholars assume a promise’s bindingness to be based on good faith with no reaction and no detrimental reliance being required on the side of the addressee. Estoppel is thereby at least implicitly rejected. Expressly rejecting the understanding that the legal bindingness of promises might be based on estoppel, see, eg Fiedler, ‘Einseitige Versprechen’, n 86 above, 47–48; Jacqué, ‘Promesse unilatérale’, n 97 above, 339. Even though the development in legal doctrine towards the requirement of detrimental reliance, as driven by the Court’s more recent and now consistent jurisprudence, is not mentioned, see also Goodman, ‘Acta Sunt Servanda?’, n 67 above, 62–64. For the Special Rapporteur, who also distinguished the two concepts, and various comments made in the Commission, see the references provided in n 324 above. Contra Bollecker-Stern, ‘Essais nucléaires’, n 89 above, 330.



Promises and Estoppel  287 be shown to be false, there is no room or need for any plea of preclusion or estoppel.367

This analysis by Fitzmaurice is to the point, as long as the effect of the existing obligation can be said to be the very same as that which would also flow from estoppel. If so, there is indeed ‘no need’ to raise estoppel. Where a state is under a treaty obligation to follow a certain course of conduct, there is nothing to be gained from invoking estoppel should it now intend to take a position inconsistent with that obligation. It is enough to point to the obligation itself. The same can be said where a state has issued an act of recognition: the legal effect of that unilateral act needs no additional support from estoppel. But for promises, the picture might be different, as the latter, unlike acts of recognition or the standard treaty obligation, can be revoked within the above elaborated framework. As this is the case, invoking estoppel in respect of a promise is not necessarily a senseless undertaking as it would then entirely preclude a state from altering its behaviour. The ‘additional’ legal effect due to estoppel protecting the addressee from suffering any detriment would thereby effectively hinder the revocation of the obligation undertaken. Estoppel would hence not simply be invoked in order to ‘underline’ an already existing obligation but, in effect, to limit the possibility of its revocation to the advantage of the addressee. The question whether a promise may estopp the declarant is hence not merely of academic interest but may result in a very palpable outcome for the declarant as well as its addressee(s). Checking the estoppel requirements in respect of a declaration that has been identified to constitute a promise will reveal the following. In order for a declaration to later estopp a state, it has been said that it must be ‘clear and unequivocal’.368 Promises in order to be qualified as such will already have met the very same threshold (as declarations need to be ‘clear and specific’),369 and there will consequently be no obstacle posed in this respect. It has already been said that in international law not only statements of fact but also those of law are capable of triggering estoppel,370 and importantly in this respect, that the international legal concept of estoppel is understood as capable of being triggered by declarations addressing the future conduct of a state;371 367  ICJ, Temple of Preah Vihear, Preliminary Objections, Separate Opinion Fitzmaurice (1961), n 332 above, 63. See also Jacqué, ‘Promesse unilatérale’, n 97 above, 337, who, in following Fitzmaurice, hence considers: ‘Dès lors, si l’auteur de la promesse a clairement entendu se lier, point n’est besoin d’invoquer l’estoppel, il suffit que le destinataire établisse la réalité de l’engagement pour lui faire produire des effets’. 368   See especially Martin, L’estoppel, n 328 above, 274 et seq; Kolb, La bonne foi, n 5 above, 360 et seq, with further references in his note 26. Also Bowett, ‘Estoppel’, n 328 above, 184–85. 369   See p 218 et seq. 370   See n 350 above. 371   According to Martin, L’estoppel, n 328 above, 274: ‘la question de savoir si – pour reprendre la terminologie anglaise – l’estoppel ne peut resulter que d’une representation ayant porté de façon déterminée sur des existing facts, et non d’une déclaration d’intention, telle une promesse de faire quelque chose, qui vise des événements futurs, donc incertains, fort

288  The Law on Promises promises are regularly referred to as potentially leading to an estoppel by scholars372 and the ICJ has not hesitated to take declarations as to a state’s future conduct into account in its test of whether estoppel could be invoked in the case before it. In the Land and Maritime Boundary case between Cameroon and Nigeria, for example, the Court considered that: an estoppel would only arise if by its acts or declarations Cameroon had consistently made it fully clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral avenues alone. It would further be necessary that, by relying on such an attitude, Nigeria had changed position to its own detriment or suffered some prejudice.373

As seen, the Court in the Frontier Dispute case between Burkina Faso and Mali was faced with a similar scenario. In the latter, the question was, however, whether Mali’s Head of State had accepted the outcome of the Mediation Commission’s decision as binding by its unilateral declaration, and was now compelled to follow through with the promise made, and not merely barred from ignoring its declaration as a result of estoppel. The question which is raised by employing estoppel in relation to such declarations (whereby it also appears to lose some of its merely and strictly shielding character), is hence that of the interplay between the two principles. Once a declaration is held to be a promise, it will, as seen, have overcome the initial hurdle for a state to be subsequently estopped from altering its behaviour, as it will have made a clear and unequivocal declaration announcing its future actions.374 Whether estoppel is triggered by a promise or not will consequently come to hinge on whether the addressee has reacted to its own detriment in reliance on the declaration made. Yet, and importantly, the question asked here is not simply a factual one, ie whether or not there has been a reaction that will prejudice the addressee. Instead, a judgment call is introduced at this point, as the addressee’s reliance has been said to have to be ‘legitimate’. The question, in other words, controversée dans les pays de la common law (probléme du promissory estoppel), ne semble guère avoir retenue l’attention au plan international’. 372   See especially the authors mentioned in n 325 above; also Martin, L’estoppel, n 328 above, 258, note 7, in which Martin agrees with Jacqué, Eléments, n 221 above, 256, that promises might become irrevocable where they lead to an estoppel, as held also by Müller and Cottier, ‘Estoppel’, n 25 above, as cited in the text to n 362 above. It should in addition be recalled that the ILC in paragraph 3 of its Commentary to Guiding Principle 10 on revocability cites the ICJ’s passage on estoppel from the Military and Paramilitary Activities in and against Nicaragua case in explaining a scenario that will hinder revocation, see pp 260–61. 373  ICJ, Land and Maritime Boundary (Cameroon v Nigeria), Preliminary Objections (1998), n 346 above, 303, para 57. The ICJ, in the North Sea Continental Shelf and Military and Paramilitary Activities in and against Nicaragua judgments in the passages cited above, has similarly analysed whether state declarations had signalled the acceptance of a particular (legal) regime and had thereby triggered estoppel. For more see the text to nn 344, 345 above. 374   For the impact of a finding that a declaration is not a promise on the application of the estoppel principle, see p 290 et seq.



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is whether the declaration was of such a nature as to reasonably lead the addressee to alter its behaviour as it did.375 In now assessing whether the addressee has acted reasonably or not, the framework applicable to promises cannot simply be ignored, where the declaration is one in which a state assures that it will comport itself in a certain manner in the future. For a statement which constitutes a binding promise, the addressee necessarily has to take into account that according to the legal framework operable in that area, a promise can be revoked where a state has given reasonable notice of its intention to do so. If this is the case, the recipient of a promise cannot therefore simply make far-reaching arrangements to its future detriment in reliance on the perpetual existence of the promise as such. Should it decide to do so and thereby ignore the legal framework attributable to promises, it cannot later invoke estoppel to protect itself, as the amount of reliance placed on the undertaking would not be ‘legitimate’. The evaluation of the addressee’s behaviour in this regard would be similar to where, for example, a treaty over a lease of territory has been signed between states A and B, which allows for it to be terminated with 12 months’ notice. Should state B, in possession of the lease, rent the territory or property thereon out to a private contractor for a longer fixed period, it will not be able to shout ‘estoppel’ in its defence, should the lease be terminated by state A according to its terms. That state B will suffer damage (as it will breach its lease with the private contractor), because it has altered its behaviour (rented out the property) in reliance on the continuing existence of the lease, will not help, as its reliance on the obligation continuing was not legitimate. That the addressee may not ignore a promise’s revocability, however, does not alter the fact that the declarant has announced a certain future behaviour and even compelled itself to follow through with it by creating a legal obligation. Whether the addressee has acted reasonably in altering its position will, apart from the limits imposed by the legal framework, therefore depend primarily upon the nature of the action announced. Where the pledged future conduct (rather than the belief in its perpetual existence) will, as such, have a considerable effect on the addressee (its territory, population, wildlife, financial assets, etc), the latter’s immediate and potentially detrimental shift in position may very well be reasonable. Where this is the case, it will, as such, also be foreseeable for the declarant, who consequently cannot be considered to be unduly burdened by subsequently facing a claim of estoppel were it to announce an alteration of behaviour. In these cases it is, as seen, the damage that the addressee would otherwise suffer by having reasonably relied on the undertaking which will allow it to invoke estoppel. 375

  For more see Martin, L’estoppel, n 328 above, 286 et seq.

290  The Law on Promises However, it should be clear that on account of its rather far-reaching effect, estoppel will only be triggered as a last resort, as the reasonable notice period introduced by the ICJ for revoking a promise functions as the first safety valve in protecting an addressee from actually suffering any damage. As described above, the word ‘reasonable’ has been said to point towards the 12 month period laid down in Vienna Convention, Article 56(2). Yet, understood as a minimum requirement, a reasonable period which provides the addressee with the possibility to readapt may of course be considerably longer, depending on the circumstances. Before a state is therefore completely barred from adopting a new position via estoppel, it must be ascertained whether a longer revocation period would not adequately protect the addressee by providing it with more time to alter its position in the face of an intended revocation. Only in (the probably rather rare) scenarios where the detriment cannot otherwise be avoided, will an undertaking therefore become de facto irrevocable for the declarant (at least unilaterally)376 under the estoppel principle. But even in these cases, there is no reason not to provide the declarant with the possibility to revoke its undertaking provided that the damage suffered by the addressee can be and has been compensated by the declarant. Should it decide to do so, the detriment the addressee was facing would vanish and, with it, one of the underlying elements that trigger estoppel. As a result, the obligation could therefore again be revoked within the normal promise framework (ie a ‘reasonable notice’ period provided). Estoppel therefore does not simply steamroll over a promise’s legal effect by applying to every promise made while ignoring the legal framework established above. Instead, it will have its additional protective effect only where it is required as an ultimate last resort, an ultimate safety net in place to protect the addressee from suffering uncompensated damage as a result of having legitimately relied on the undertaking made. The reference to it in the Commentary to the ILC’s Guiding Principle 10,377 just as its express inclusion in the altered version of that Principle on the revocability of promises as proposed above, should be understood as such.378 (iii)  ‘Non-Promises’ Triggering Estoppel? What remains to be addressed is the impact which a finding that a declaration announcing the future action of a state is not a promise will have on the assessment whether it may later estopp the declarant. Müller and Cottier seem to be saying that it is in particular where an intention to be   A consensual cancellation is, of course, possible.   See ILC, Guiding Principles with Commentaries, n 46 above, 380–81, Commentary to Guiding Principle 10, para 3, referred to and cited at p 260. 378   See p 275. 376 377



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bound cannot be established that the estoppel effect can be of importance, when they write: Of course the doctrine of estoppel may be dispensable if the intention to be bound seems to be well established in a particular case. However, it is usually very difficult, if not impossible, to prove intention as a subjective element of a party’s behaviour.379

For Jacqué, too, recourse to estoppel is possible where the intention of a promise’s author is uncertain.380 And indeed, at first it appears to be only logical that since estoppel does not make any reference to a state’s manifested intent to be bound, a finding that the latter is lacking should be of little impact when applying estoppel to the case at hand. Yet, in light of the way in which a state’s manifestation of will is ascertained when determining whether it has made a promise or not, this conclusion appears to be inaccurate. To return to the quotation from Müller and Cottier as provided above, the finding in its last sentence that proving intention is usually impossible, is certainly true. But the standard of interpretation applied to declarations of states in order to assess whether they are promises or not has shown (and precisely for the reason that the addressee does not know what the declarant really intends) that this proof is not actually required. It is instead a reasonable outside evaluation that will be conducted by the addressee, just as by a court, in determining whether a declaration may be relied upon as a legal undertaking. As will be recalled, under such an ‘objective’ (ie outside) analysis, it will have to be ascertained whether, under a restrictive interpretation, a declaration of a state constitutes a clear and specific indication of its future actions that is supported by circumstances which emphasise the declaration’s importance, before allowing for the latter to be interpreted as a legal undertaking. Only where this is the case will a state be understood as having manifested an intention to be bound by its statement. If this analysis comes to the conclusion that the declaration in question was too vague, or the circumstances of its making indicated that no legal undertaking can be assumed to exist, the result will be that the statement in question was, at most, a political sign of goodwill. The question raised here is therefore whether such statements, while not promises, can nevertheless have an estoppel effect on their declarant. While it is true that estoppel does not ask whether a state intended to be bound, it does, however, enquire whether a state has legitimately relied on a declaration. But, and solely in reference to declarations which indicate a state’s future(!) behaviour (ie potential promises), this means that the very same questions as those which have already been raised and answered when ascertaining whether a declaration qualified as a promise or not, 379 380

  Müller and Cottier, ‘Estoppel’, n 25 above, 118.   Jacqué, ‘Promesse unilatérale’, n 97 above, 337.

292  The Law on Promises must arise. The question is not simply whether or not the addressee has relied on a declaration made to its detriment, as the fate of the declarant would then be placed fully in the hands of its addressee. Instead, it asks not only whether or not the addressee altered its position in response to the declaration, but in addition whether this reaction by the addressee was reasonable, ie whether it can be called ‘legitimate’. As already seen above when focusing on the basis of a promise’s bindingness, under a trust or reliance-centred approach, the judgment call has to be made as to whether a state’s declaration was trust-worthy: could the declaration by state A indicating its future behaviour be legitimately taken by state B as a ground for altering its behaviour? It is therefore no surprise that for estoppel to apply (and within the literature on estoppel), all the questions which needed to be addressed within the promise analysis spring back to life: Was the state representative competent?381 Did he or she act under pressure, was there fraudulent conduct, ie was the declaration possibly defective?382 And especially: was the declaration ‘clear and unequivocal’ in respect of the future conduct which it announced?383 But if here a different standard was to be applied than when evaluating whether or not a statement was ‘clear and specific’ under the promise analysis, the result would lead to a striking incoherence in the legal system. In effect, the widely accepted and relied upon distinction between binding legal commitments and non-binding declarations (of intent, goodwill, etc) would be ‘circumvented’ by estoppel, as the distinction would be rendered devoid of much of its importance if via the back-door of estoppel any statement could become de facto binding. The answers provided to the reliance questions now dressed in estoppel clothing will consequently have to be the very same as when they were posed within the promise context. If declarations, which indicate a state’s future and beneficial behaviour to an addressee, have in the promise context been considered as not meeting the adequate threshold and hence not worthy as being relied upon as legal undertakings which determine a state’s future actions, the same result will have to be applied here. The addressee, strictly legally speaking, cannot legitimately base itself on such non-promise indicators of a state’s future behaviour and alter its position accordingly. Should it do so, it will not be able to claim estoppel vis-à-vis the other state, which has merely indicated what it considered it would (possibly) do. While the assessment conducted under estoppel vis-à-vis declarations which indicate a state’s future actions will necessarily run parallel to that conducted when concluding that a declaration was not clear and specific enough to be a promise, the matter is different for declarations in which 381   For estoppel and this question see the analysis by Martin, L’estoppel, n 328 above, 276– 86 and Kolb, La bonne foi, n 5 above, 276–86. 382   See the text to n 351 above. 383   See text to n 368 above.



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a state analyses its own past behaviour. It is here where the primary field of application of estoppel to ‘non-promises’ will lie. If a state makes its interpretation known to another state, then these additional, and subsequent remarks, made after a non-promise has been made, might become important under the estoppel principle. In this respect, the same is true as for non-treaty obligations. The above citation of Fitzmaurice’s opinion in the Temple of Preah Vihear judgment continues by making this point: Such a plea [of estoppel] is essentially a means of excluding a denial that might be correct – irrespective of its correctness. It prevents the assertion of what might in fact be true. Its use must in consequence be subject to certain limitations. The real field of operation, therefore, of the rule of preclusion or estoppel, stricto sensu, in the present context, is where it is possible that the party concerned did not give the undertaking or accept the obligation in question (or there is room for doubt whether it did), but where that party’s subsequent conduct has been such, and has had such consequences, that it cannot be allowed to deny the existence of an undertaking, or that it is bound.384

But here it is not the non-obliging declaration itself that therefore triggers estoppel, rather it is the declarant’s subsequent own conduct or its representations judging its own, past behaviour that will do so. Taking the Armed Activities on the Territory of the Congo case as a hypothetical example to illustrate this point, it means the following. It will be recalled that the declaration made by Rwanda to withdraw all its reservations was considered by the ICJ to be, at most, ‘a declaration of intent, very general in scope’,385 which could not be understood as a legal commitment. Had the Democratic Republic of the Congo now claimed to have detrimentally shifted its position in reliance on this statement, this reliance alone would not have been enough to estopp Rwanda from subsequently deciding to withdraw its declarations; the reason being that the question whether the DRC was able to rely on this statement in determining its future actions must be answered in the negative. The announcement was too vague to base trust on it. If otherwise assumed, the whole analysis of whether a statement is a binding undertaking or not would be undermined, as a result of which the declarant would be in the constant danger of having to follow statements which were not legal undertakings but rather announcements of intent, very general in scope. However, had Rwanda, after its declaration, continuously referred to or otherwise by its conduct made it clear that it considered its declaration as having given rise to an obligation to withdraw its reservations, then this subsequent conduct could have given rise to an estoppel, barring Rwanda from suddenly adopting 384  ICJ, Temple of Preah Vihear, Preliminary Objections, Separate Opinion Fitzmaurice (1961), n 332 above, 63, emphasis added. 385  ICJ, Armed Activities on the Territory of the Congo, Jurisdiction and Admissibility (2006), n 40 above, para 52, for more see p 169 et seq.

294  The Law on Promises the opposite position of asserting that such an obligation had never been undertaken, given, of course, detrimental reliance on the part of the DRC. This, however, would involve something other than applying an estoppel effect directly to the declaration made, which was held not to be a promise itself. (iv)  Recapitulating Remarks on the Interplay of Promise and Estoppel As seen, the principle of estoppel has not only a legal effect but also prerequisites of its own, as a result of which a promise’s bindingness is not based on estoppel, nor will each and every promise have an estopping effect for the state making it. Their area of application may, however, overlap and a promise can therefore also estopp the declarant if the pre­ requisites for estoppel are fulfilled. The undertaking will thereby become de facto irrevocable. But as the addressee has to take the general revocability of promises into account, and is protected first and foremost from suffering damage via a reasonable period of prior notice before a revocation is effective, estoppel will only be triggered as an ultimate last resort and in cases where impeding damage cannot otherwise be deflected and has not been compensated. Where a declaration which indicates a state’s future action is held to be a mere declaration of intent or goodwill, it cannot as such legitimately be taken as a reliable announcement of future action, let alone one on which reliance may be placed in a form that, if disappointed, will cause additional detriment. Any such behaviour by the addressee will hence not bar the declarant from later altering its position. Where a non-binding announcement has been made, however, a state can, by its subsequent conduct, of course still trigger an estoppel effect. IX  SUMMARISING THE LEGAL FRAMEWORK

Before continuing to chapter four which provides a brief outlook and some thoughts on the future of promises as a legal institution, it may be helpful first to summarise the findings included in this chapter on the Law of Promises. It is, after all, on this basis that the usefulness of promises as a tool for a state to commit itself will be addressed. As will be recalled, the present chapter began by illustrating that promises are indeed missing from the list in ICJ Statute, Article 38(1), which is commonly understood as listing the ‘sources of international law’. Its silence in this regard, however, has been shown to have prevented neither the ICJ nor scholars (or most of the states which answered the ILC’s questionnaire) from very clearly asserting that states can undertake obligations through unilateral pledges. The cases depicted in chapter two illustrated that states indeed make use of unilateral assurances, the



Summarising the Legal Framework  295

capacity of which to create legally binding obligations is not doubted. The lacuna in the Statute notwithstanding, the ILC’s conclusion that states currently ‘possess the capacity to undertake legal obligations through unilateral declarations’ was therefore found to adequately reflect international law as presently applied by courts and tribunals, just as it is understood by practitioners (including, but not limited to, those arguing before the ICJ) and the overwhelming majority of scholars, alike. Even without the Court’s Statute being revised to reflect legal realities, the lacuna presented by promises not being listed amongst the sources of law might fade away over time, should the principles which have primarily been established by the World Court’s case law continue to be accepted and thereby entrenched as customary international law through the practice of states. A closer analysis of the ILC’s Guiding Principles, based primarily on the ICJ’s judgments in the Nuclear Tests cases, revealed that various and indeed central aspects were left unclear in the Commission’s final version, thereby severely hampering the Principles capacity to be truly ‘guiding’. Some of these aspects have already been addressed in chapter one of this study when determining the nature of a promise, which necessitated in particular identifying the features of a declaration’s unilateral character. The present chapter has focused on open questions, including in particular the precise basis for a promise to be binding, the standard of interpretation to be applied to unilateral pledges of states, the impact of the addressee’s reaction to the undertaking proclaimed, general and additional requirements for a promise to be binding and, last but not least, the revocability of promises and the impact the principle of estoppel might have in this area of law. In so doing, the identification of the principle of ‘good faith‘ as explaining the constraining force and hence a promise’s bindingness for the declarant has been confirmed (in rejecting in particular an argument based on a state’s sovereign decision or intent to commit itself), while further arguing that this implied that the reliance of an addressee on the promise received is protected. This reliance does not have to be expressed by the state to which the promise is directed, as this chapter has gone on to argue that it is presumed to exist, apart from the addressee’s indications to the contrary. The legal framework thereby adequately reflects the social interaction which has taken place between the states involved: the addressee is presented with what is (for it legally speaking) always an advantageous declaration as through it an additional right is acquired, invokable against the declarant. Since the declarant does not ask for any positive reaction in the form of the addressee’s acceptance, no such reaction can be expected from the addressee, who will nevertheless usually take note of the new undertaking and rely upon it in its future actions. This presumption of reliance, of course, still allows the addressee at all times to rebut it and reject the ‘gift’ made.

296  The Law on Promises The follow-up question triggered by this finding was to ask on which declarations a state may in fact rely as a binding undertaking. In other words, in which scenarios will a state’s reliance on a declaration be protected as ‘legitimate’? It is here where the distinction of political and legal undertakings has been said to come into play and with it the focus shifted to what can be interpreted as a ‘state’s manifestation of will’ to commit itself legally. Judged from an outside perspective of a reasonable observer, the analysis will use a restrictive interpretation and concentrate on the text of a declaration and its surrounding circumstances. A state will need to use ‘clear and specific’ wording in announcing its future course of action. And where this is the case, a declaration will, in addition, need some sort of supporting context underlining its importance, in order for it to constitute a manifestation of will to be legally bound. However, the clearer the wording in respect of a legal obligation having been intended, the less the requirements in this respect will be. Where, as is usual, a state does not expressly flag its announcement as including a legal commitment, the circumstances will be of considerable importance in order to assess whether a declaration is a mere political pledge and sign of goodwill, or a legally binding promise. As seen, the courtroom setting has to be understood as putting state representatives on notice that their spoken word will be relied on as a legal assurance. Declarations made in direct reference to ongoing proceedings will in addition, as the ICJ has said, not be considered ‘in vacuo’ but as being made also for the ears of the Court and hence as reliable, ie legal, commitments. Solemn announcements, official notifications or the fulfilment of additional formalities (be it even the registration of a unilateral declaration with the United Nations) will, for a reasonable observer, also be taken as stressing the heightened impact a state intends its declaration to have. Coupled to a clear and specific statement, even where restrictively interpreted, the result will hence be a legal obligation undertaken in the form of a promise. Where this is so, a promise may therefore be invoked against the declarant before legal institutions and will trigger the latter’s responsibility (for compensation or giving rise to countermeasures) should it be breached. The study moved from there to making it clear that the declaration will only be a promise where an acceptance is not requested by the declarant, which necessitated a closer look at the differences in law and in the declaration itself (as an act of communication) between an offer and a promise. It moved on to identify a couple of further requirements which, once a manifestation of will to enter into a legal commitment has been found, need to be fulfilled. A promise will, as such, need to be made by a competent representative and, in order not to be void or voidable, must not suffer from any defect. In order to become binding, a promise has to be communicated to the addressee, a ‘requirement’ which, in fact, is an integral part of the manifestation of a state’s will to undertake a legal



Summarising the Legal Framework  297

obligation vis-à-vis the addressee. Although frequently and misleadingly referred to as requiring a ‘publicly’ made declaration, the intentional act of communicating the promised course of conduct to the addressee is, however, sufficient, even if made behind closed doors. Other than that, an undertaking has to be ‘legal’ in that it may not infringe a norm of ius cogens without becoming void. (It has in this respect been proposed that the same should be true for previously and openly adopted legal obligations of special importance, which allow for no contradicting subsequent obligations to be valid, as the damage caused cannot simply be compensated by means of state responsibility.) The study continued by pointing out that the registration of a unilateral declaration is by no means a requirement in order to invoke the latter before a UN institution, as UN Charter, Article 102 will not apply; but that such registration might, nevertheless, be important in the aboveaddressed assessment as to whether a state has manifested an intention to be legally bound by making its declaration. In assessing the impact of the addressee’s reaction, its silence has been identified as being of no consequence for the declaration’s bindingness. A positive reaction will usually merely underline and manifest the addressee’s actual reliance, which has already been presumed to exist and will, as such, be of separate and heightened importance only in the exceptional case where it triggers estoppel. Where the addressee, however, chooses to reject the promise made, the latter will no longer be compelling for the declarant; with no reliance being placed on the declaration made, there is nothing left to protect under the ‘good faith’ principle. Having established the requirements for a binding legal undertaking in the form of a promise, this led to the question whether a promise may be revoked, which has, as seen, been answered affirmatively. A state can revoke its promise, but the expectations raised in the addressee that a state will comport itself in a certain manner need to be respected and protected. Special terms as to revocation included in the declaration and a fundamental change in circumstances aside, international law has been said to protect the faith placed on an undertaking by providing the addressee with time to readapt to the new legal situation. It therefore requires the declarant to provide ‘reasonable’ notice of its intention to revoke the undertaking made. In mirroring Vienna Convention, Article 56(2), to which the ICJ’s jurisprudence points, the minimum requirement in this respect, as a rule of thumb, appears to be at least a 12-month delay. Where the dispositions which the addressee has made have been reasonable as well as considerable, the reasonable notice period may, however, require a longer readaptation period for the addressee. Only as a last resort, where the resulting damage or disadvantage for the addressee legitimately relying on a declaration that has encouraged it to act cannot be compensated by the declarant, will a promise’s revocation become de facto impossible

298  The Law on Promises under the safety net provided by the estoppel principle. The regime in place for revocation thereby carefully balances the two interests at stake. This, in a nutshell, is what this chapter has presented the Law on Promises to be. Its aim was not to move towards new concepts to be implemented de lege ferenda, but to establish the present legal framework by using the ICJ’s dicta and the strong support of the latter as reflected in the ILC’s Guiding Principles as guidance, while adhering to an interpretation of systematic coherence. It is in respect of the revocability of promises where the territory appeared the most uncharted. The above-presented approach is, however, backed by more than merely (good) scholarly arguments, but as seen supported in particular by the ICJ’s interpretation of ‘good faith’ as establishing the limits on the revocation of unilateral declarations under the Optional Clause in direct reference to the Nuclear Tests cases. The interplay between promise and estoppel, to which Guiding Principle 10 in light of its commentary points, in addition, can only be taken duly into account where a more flexible approach for the revocation of promises is otherwise followed. It is on the basis of these legal features that the future of promises as a legal institution will be briefly addressed.

4 Looking Ahead: A ‘Promising’ Future?

T

HE INTRODUCTION TO this book found that while promises are commonly mentioned amongst unilateral acts in public inter­ national law textbooks,1 scholars who have attempted to elaborate the precise legal rules governing such undertakings are far from numer­ ous. The primary explanation for this lack of interest has been said to arise from the understanding that binding unilateral assurances of states, ie promises, are a rare phenomenon in international law.2 The assumption that states have no motive to undertake obligations by unilateral means has already been rejected as unfounded,3 but the underlying ‘bilateral mindset’ expressed in this finding appears to have multifarious roots, which explains why it has remained difficult for the doctrine of promises to develop further on the international plane. It is likely that the fact that promises are not provided for in most municipal legal systems will (even if only subconsciously) have had an impact on international lawyers, who, after all, are usually professional ‘hybrids’, equally at home in at least one municipal legal system. Their understanding in such a fundamental mat­ ter of how legal commitments between subjects of law can be construed is therefore likely to have influenced their perception of binding under­ takings at the international level. The fact that the dogmatic construction of unilaterally obliging assurances within international law is relatively new only enhances this effect. As the ‘History of Promises’ has shown, the early part of the twenti­ eth century has seen a number of rulings in which international courts relied on unilateral assurances as giving rise to binding commitments, and there is state practice coupled to scholarly support from this time. However, it was not until the ICJ in the Nuclear Tests cases set out its posi­ tion in crystal clear words that the existence of binding promises of states could no longer be (successfully) marginalised as a misguided minor­ ity interpretation of cases and state practice within the legal profession. Although the Court’s holding, along with its subsequent decisions that refined the doctrine elaborated therein, have had an impact on both state   See those listed amongst the ‘scholarly support’, Introduction, n 49.   See p 4 et seq. 3  Ibid. 1 2

300  Looking Ahead: A ‘Promising’ Future? practice and scholarly writings, the judgments nevertheless do not appear to have unleashed the ground-breaking effect a true Marbury v Madison international equivalent4 would have been expected to provoke. One of the principal answers to the question as to why they failed to do so is to be found in the fact that many features of the legal framework applicable to promises appeared to remain in the dark. Particularly as the uncertainties reached into areas of pivotal importance (for example, revocation), prom­ ises have remained capable of prompting sceptically raised eyebrows, even in debates amongst public international lawyers. However, as more and more of the question marks with which the topic is peppered are deconstructed, this critical perception is likely to con­ tinue to change, and states, for the reasons mentioned in the Introduction, might very well increase their use of promises. In other words, the more the Court’s jurisprudence continues to grow and the consensus on the existence of state promises as unilaterally obliging acts comes to include also the precise legal framework applicable thereto, the more likely it is that the use of such assurances by states will intensify. What this chapter will therefore address is the impact such a development might have on the international plane. The following pages therefore provide a brief out­ look and some thoughts on the prospects, as well as the (alleged) dangers, connected to promises, should they indeed become a more prominent tool in inter-state relations. I  STRAITJACKET VS EMPOWERING RULE

When the ILC set about its work on unilateral acts, Simma warned his peers about creating a straitjacket for states by adopting guidelines which deprive a unilateral act of its flexibility, and thereby states of the flexible instrument said to be currently at their disposal.5 Meant as a warning for an attempt at codification, this caveat can be directed at any ‘develop­ ment’ in the area of promises. Whether it is more jurisprudence in this area or merely a chapter in a book such as this one, which strives to enhance the understanding of promises’ legal features, the warning points to the practical consequences which the application of legal rules to unilat­ eral pledges will have, be they newly developed or only elucidated as already existing. Although the term is rarely used, this ‘straitjacket’ con­ cern appears to be looming in the background and, where this is the case, will fuel scepticism in respect of any law regulating unilateral assurances 4   Thomas M Franck, ‘Word Made Law: the Decision of the International Court of Justice in the Nuclear Test Cases’ (1975) 69 American J International Law 612. 5   ILC, Summary Record of the 2524th Meeting, UN Doc A/CN.4/SR.2524 (1998) 41, para 82.



Straitjacket vs Empowering Rule 301

of states.6 If a state really has to ‘recognize that what it solemnly says it will do, or more importantly, what it says it will not do, becomes a part of that trellis of reciprocal expectations on which the fragile international system grows’7 (to quote Thomas Franck), the result might be that states simply refrain from making pledges on the international level.8 Were this true, the evolution which has elevated pledges outside treaties from mere indicators of goodwill to binding commitments would hence rather ham­ per than improve international cooperation. The perception that the doc­ trine of promises might function as a millstone around a politician’s neck when acting on the international stage may, in part, also be motivated by a feeling that promises are a ‘dangerous legal device’,9 a loose cannon, which can be turned against an unwary declarant who may not see the blow coming. Promises could function rather as a trap than a useful tool, and one which can close on a state should it not manoeuvre in the inter­ national arena with exceptional care. But while this warning is to be taken very seriously and into consideration, particularly with regard to any pro­ gressive development in this field, and it is both true and important to emphasise that states need to weigh their words carefully, it would be a misconception to view the law which is presently in place and described above to already function as a ‘straitjacket’. Were such a position adopted, it would have to ignore numerous factors while simultaneously basing itself on some false assumptions. To begin with, it would be false to address promises on the assumption of an existing dichotomy between a (hastily made) oral unilateral pledge, on the one hand (ie the promise), and a (carefully drafted) written treaty on the other, because there is a lack of formal requirements for treaties, just as for promises, and promises might, of course, be made in written form: the Suez Canal declaration, the Austrian notification of its neutrality, the declaration on the use of war material vis-à-vis Austria and some of the negative security assurances circulated in the General Assembly were all made in written form. And just as a unilateral promise can deliberately be issued in writing, so can treaties be concluded orally. The argument 6  See Wilfried Fiedler, ‘Zur Verbindlichkeit einseitiger Versprechen im Völkerrecht’ (1976) 19 German YB International Law 35, 62: ‘Unausgesprochen im Hintergrund steht daher die Befürchtung, durch allzu starre Verrechtlichung internationer Beziehungen deren Anpassunsfähigkeit zu mindern und die zwischenstaatliche Kooperation entscheidend zu hemmen’. 7   Franck, ‘Word Made Law’, n 4 above, 616. 8   Rubin, for example, in the direct aftermath of the Nuclear Tests cases judgments warned that states might be discouraged from publishing their ‘intentions’ as they could be miscon­ strued, see Alfred P Rubin, ‘The International Legal Effects of Unilateral Declarations’ (1977) 71 American J International Law 1, 30. 9  Christian Tomuschat, ‘Unilateral Acts under International Law’ in Droits et Culture. Mélanges en l’honneur du Doyen Yadh Ben Achour (Tunis, 2008) 1487, 1496, has referred to unilateral declarations as a dangerous legal device, especially as ‘[d]ecisions may be taken lightly, without any of the protective mechanisms of treaty-making becoming operational’.

302  Looking Ahead: A ‘Promising’ Future? that arose in particular in respect of the declaration by Minister Ihlen in the Eastern Greenland case, as will be recalled, has not focused on whether the undertaking was unilaterally binding vs bilaterally non-binding. The bindingness resulting from these oral declarations was accepted as such, and the question was merely whether the declaration was an oral offer that had been accepted or whether it was an oral promise, binding as such. The perceived ‘danger’ for a state of hastily issuing a binding decla­ ration which will give rise to a far-reaching legal obligation is, therefore, already present on the international level, as oral offers are accepted. It is, however, true that oral declarations have played a more important part in the evolution of the doctrine of promises than they appear to have occupied in the area of treaties.10 The danger for states of assuming an obligation orally could hence be considered (at least) heightened by the doctrine of promises which allows even an assurance not asking for an acceptance to give rise to a binding obligation. Yet, any such argument would, of course, have to assume that the legal profession would other­ wise reject an assurance’s bindingness even where the latter is ‘solemnly’ made in clear and specific words, instead of construing the communica­ tion in these scenarios as an offer coupled to a tacit acceptance.11 Where this is the alternative, the interpretation of the statement as a legally bind­ ing promise will, in fact, provide less of a straitjacket in light of the ‘more flexible’ revocation regime in place for promises made. The warning that states might find themselves trapped by their declarations against their intentions was, in addition, especially understandable before and in the direct aftermath of the Nuclear Tests cases, as the Court’s finding of a bind­ ing unilateral assurance was widely felt to have been applied to state­ ments that should not have been (nor should in the future be) held to express an intention to create a legally binding obligation. In line with the view expressed by various dissenters, the declarations appeared to be too vague for any such assumption. But the scenario has changed since then. As the framework presented in chapter three has shown, it would be mis­ leading to look at the standard of interpretation solely through the Court’s Nuclear Tests cases’ holdings. Since then, more than 30 years have passed and the ICJ has had the opportunity for some fine-tuning of the standard of interpretation applied to unilateral pledges of states. Under the restric­ tive approach, which concentrates on a clear and specific announcement of a future course of conduct expressed in a declaration, the importance of which is underlined by additional circumstantial factors, the danger of politicians stumbling into an unforeseen legal obligation has been effec­ tively minimised. A legal ‘straitjacket’ is therefore not currently in place.   See also ibid 1495.   For attempts to construe a unilateral assurance as either an offer or acceptance see espe­ cially the debate on the Austrian declaration of neutrality at p 104 et seq; see also the discus­ sion on the declarations on the protection of minorities at p 88 et seq. 10 11



Straitjacket vs Empowering Rule 303

In addition, where the rules applicable to declarations of states are made clear and not left vague, the result is not only that the addressee may rely on a statement made, but that the declarant can differentiate and assess beforehand what impact its declaration is likely to have. The clearer the legal framework is, the less of a trap there is for a state to walk blindly into. With a clear standard of interpretation, and especially a restrictive one as presently in place, which bases itself strongly on a textual analysis of whether a state proclaims a certain course of action in clear and specific terms, the evaluation provided by a Court becomes much more foresee­ able. It is, in fact, rather the absence of clear guidelines which is danger­ ous for states, as their actions may then be found to trigger all kinds of unforeseen and unforeseeable legal consequences. The danger would be all the greater where a principle according to which states may assume legally binding obligations through their unilateral declarations is already in place (as with promises), but its specific features are left unclear. Any such scenario would be problematic not only for the acting state and its addressee, but also for the international legal order and in particular the ICJ, because where a court’s judgment is unpredictable through the rele­ vant law remaining in the dark, states will be reluctant to put themselves into the hands of international judges to solve their disputes. To acheive a strengthening of international law and the increasing use of international jurisprudence, the remaining black holes within the international legal system need to be illuminated. Defending them as creating more flexibil­ ity for states will, in fact, have the opposite result. While illuminating the legal principles governing the interpretation of assurances of states is just as important as the restrictive standard found to be applied in this respect, neither alleviate another problem promises are diagnosed to have: that they require no ratification. As gen­ erally understood, ratification can refer to the final act creating an under­ taking’s bindingness at either the international or national level. At the inter­national level, there is indeed no requirement of ratification as an extra, formal step, which will provide the document with its final legal validity on the international plane, such as a deposition of the declara­ tion with a registrar.12 But not all treaties in fact require ratification at the inter­national level, as revealed in Vienna Convention, Articles 11 and 14, which list ratification as only one amongst other means to become bound. In addition, with a promise, a state representative remains always free to expressly assume an obligation under the condition of further ratification at the international level, pending the approval of the undertaking by a competent body within its own state. The problem identified when emphasising the lack of ratification proce­ dures hence lies more at the national level: most municipal legal systems 12

  See pp 246–47.

304  Looking Ahead: A ‘Promising’ Future? do not seem to require any parliamentary involvement in order to create a binding legal obligation through a unilateral act, even where the very same obligation in a treaty would need its blessing. This danger of bypassing the national (democratic) legislative body is, however, not one which is inher­ ently connected to promises – it exists similarly for other unilateral acts, such as acts of recognition or waiver – and, of course, it is not a problem caused by international law. It remains for the national level to decide whether its executive is allowed to unilaterally assume an undertaking without parlia­ mentary involvement. As the case before the German Constitutional Court in respect of the cruise missiles deployed on its soil has shown (or, more precisely, the criticism which that judgment triggered),13 there is indeed a good argument to be made that national ratification procedures should be extended to cover any far-reaching obligation, and irrespective of whether a unilateral or bilateral mechanism is used by the executive. A state repre­ sentative could, under an altered municipal law, very well be compelled to seek parliament’s approval before making a unilaterally binding promise. In contemplating any such requirement of parliamentary involvement, it should, however, be taken into account that promises might thereby lose some of their flexibility, as they could no longer be as swiftly employed. The ‘intermediate model’ adopted, for example, in Sweden and Denmark has already been mentioned,14 under which such undertakings do not need full parliamentary approval but a hearing before a Council or Committee com­ prised of some parliamentary representatives is sufficient. It should also be kept in mind that under the Law on Promises as described above, a state will usually not trigger an obligation of the same rigidity as a non-qualified treaty obligation. In this respect, the wider flexibility in adopting the under­ taking is mirrored by the framework allowing its revocation. While the dangers posed by the doctrine of promises therefore seem manageable, it provides states with a power they do not have without it. In this respect, the doctrine has features in common with the pacta sunt servanda principle in place for treaties. Despite its general acceptance, the latter could similarly be described as restraining a state in its future actions and compelling it to act as offered once the offer is accepted, whereby its freedom to do as it likes is limited. But to consider pacta sunt servanda to form a straitjacket for states would, of course, mean looking at only a small fraction of the bigger picture, as the principle functions essentially as an empowering rule for states.15 Once in place, states may assume a legal   For a discussion of the case see p 148 et seq.   See ch three, n 175. 15  Speaking of a ‘power conferring rule’ for pacta sunt servanda also Roberto Lavalle, ‘About the Alleged Customary Law Nature of the Rule Pacta Sunt Servanda’ (1982) 33 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht 9, 20–21. Lavalle, however, goes too far by assuming that this function is pacta sunt servanda’s only purpose, as a consequence of which Lavalle, relying on Hart, draws (in this writer’s opinion) the wrong conclusion that the fulfilment of treaty obligations does not constitute compliance with that norm. A ‘power 13 14



Straitjacket vs Empowering Rule 305

obligation which they otherwise could not do. As long as the legal frame­ work is reasonably clear, this is not a burden, as a state remains free to choose whether it comports itself in a manner which creates an obligation or not. The big advantage it now has, therefore, is that it can assume a legal obligation where intended. Without the pacta sunt servanda principle, a state could make all sorts of pledges that it intends to fulfil the terms agreed upon, but there would be no legal certainty for the addressee that it will really do so. Once the rule is introduced, the full ‘legal apparatus’ (ie the principles of state responsibility, the provision for countermeas­ ures, the ability to claim fulfilment before international institutions such as the ICJ, and a state’s general reputation for adhering to the law) can be called on as support by the state making(!) the declaration, in order to persuade the addressee to believe that the offer/acceptance can indeed be relied upon. And the very same is true for promises:16 where a state intends to announce a future course of action which it wants its addressee(s) to believe in, to rely on and place trust in (for some of the reasons mentioned in the Introduction and illustrated in the cases in chapter two), the doc­ trine of promises now allows for it to do so and establish a legally reliable commitment. A state is not of course forced to do so, yet through adequate wording and proclamation, it can now adopt a unilateral commitment of its own choosing. A rather recent example of the result of a lack of such an ‘empowering’ tool might serve as an illustrative side-note in this context. It presented itself in German municipal law in the context of the worldwide financial crisis in 2008. In the face of various banks staggering on the brink of bankruptcy, the conferring rule’, after all, may very well as its flipside also lay down a norm of conduct which can be breached and the obligations resulting from which are to be followed as such. 16   That a parallel rule of acta sunt servanda for all unilateral acts (also called declaratio est servanda), or promissio est servanda for promises, has sometimes been put forward is there­ fore not surprising; for such proposals see, eg Cedeño, ILC, 2524th Meeting, n 5 above, 35, para 25; Victor Rodriguez Cedeño, Fifth Report on Unilateral Acts of States, Addendum 2, UN Doc A/CN.4/525/Add.2 (2002) 2–6, including a Draft Article 7 entitled ‘Acta sunt serv­ anda’; also Camille Goodman, ‘Acta Sunt Servanda? A Regime for Regulating the Unilateral Acts of States at International Law’ (2006) 25 Australian YB International Law 43, 65 et seq. No such formula has been used here. The reason not to do so is that by grounding the concept of binding promises on a latin phrase will as such add nothing to the doctrine presently in place. While it could nevertheless be used in a merely descriptive way, it does not have the historical backing of that long-standing bedrock principle for contracts and treaties to which it alludes. As such, it is likely to trigger more confusion rather than help in determining the legal framework for promises. See also Lukashuk, ILC, 2524th Meeting, n 5 above, para 47: ‘The Special Rapporteur, guided by practice, rightly defined the rule giving rise to the bind­ ing force of the unilateral act as the principle of good faith. So there was no need to invent any special rule such as declaratio est servanda, proposed by the Special Rapporteur at para 157 [of his First Report]. The principle of good faith was enough’. Candioti, ILC, Summary Record of the 2526th Meeting, UN Doc A/CN.4/SR.2526 (1998) para 58, considered the development of such a principle albeit unobjectionable also unnecessary, and the basis of good faith to be sufficient. Critically also Tomuschat, ‘Unilateral Acts’, n 9 above, 1494–95.

306  Looking Ahead: A ‘Promising’ Future? German government feared its citizens could lose their trust in the banking system altogether. The dreaded worst case scenario was that of thousands of people storming their banks in order to withdraw their money. In order to avoid such a run on the banks, which could severely destabilise the whole banking system, and to calm the German population as quickly as possible, Chancellor Merkel and her financial minister, Steinbrück, appeared before the national press and promised their population that its money was safe and guaranteed by the state.17 The problem which not surprisingly was quickly identified, especially by the opposition, was that the legal value of this oral intra-state assurance was, at best, completely unclear. Calls to put in place a law to secure the legal validity of this (wide-ranging) financial assurance hence quickly became loud and frequent. And indeed, despite the Merkel-Steinbrück pledge, the level of distrust amongst the German population and the fear of losing their money remained considerable,18 even though it did not in fact get out of hand and lead to the extreme reac­ tions feared. However, had the position, emphasised especially by the leftwing German party ‘Die Linke’, gained more ground, according to which the oral announcements were ‘not worth the microphone which they had been coughed into’,19 the result could have been very different. The prob­ lem which Merkel and Steinbrück were facing when they wanted to estab­ lish the German citizens’ immediate trust in the stability of their savings (drafting a law is after all not a matter of minutes), was that although they made a promise in this regard, the intra-German legal framework in fact destabilised the trust that could be placed in the announcement made, as it appeared to qualify it as being no more than a mere ‘political pledge’. Rules allowing the establishment of a firm legal commitment hence have not only a limiting effect. Besides protecting the addressee who has placed trust in a statement made, they also aid the declarant, where the intention is to create a reliable commitment. For international promises, the doctrine will therefore function also as an empowering tool for states, bolstering an assurance’s reliability by providing it with a legal backing. While false promises will now hurt a state more than where the doctrine 17   Chancellor Merkel said: ‘Wir sagen Sparerinnen und Sparern, dass ihre Einlagen sicher sind. Auch dafür steht die Bundesregierung ein’ (‘We tell all depositors that their savings are secure. The government does also vouch for this.’, my translation), see Spiegel-Online, 5 October 2008, ‘Merkel und Steinbrück im Wortlaut, ‘Die Spareinlagen sind sicher’’, avail­ able at www.spiegel.de/wirtschaft/0,1518,582305,00.html. 18   A survey conducted shortly after the announced guarantee revealed that only 55 per cent of those questioned trusted that their savings and bank accounts were secure, while 37 per cent said they were not, see ZDF Politbarometer (October 2008), cited in ‘Deutsche ver­ lieren Glauben an Sicherheit der Spareinlagen’, Focus-Online, 10 October 2008, available at www.focus.de/politik/deutschland/finanzkrise-deutsche-verlieren-glauben-an-sicherheitder-spareinlagen_aid_339613.html. 19   As claimed by a member of the executive committee of the ‘Die Linke’ party, see ‘Frau Merkel muss Garantiezusagen für private Spareinlagen per Gesetz absichern’, 8 October 2008, available at www.linksfraktion.de/wortlaut.php?artikel=1566944463.



Unilateral Promises and Bilateral Commitments 307

is not in place (as its responsibility is triggered should it breach its decla­ ration), the state which intends its audience actually to believe and trust its words and act accordingly may create a more stable expectation that it will act as announced. II  UNILATERAL PROMISES AND BILATERAL COMMITMENTS

As the doctrine of promises allows states to commit themselves legally through a unilateral assurance, two further questions are bound to arise: the first is why, in light of the pacta sunt servanda principle, an additional legal mechanism was created and accepted on the international level, even though most municipal legal systems do not contain a comparable tool. Secondly, with promises operating along-side treaties, it might be questioned whether there is not a danger of states using unilateral prom­ ises to ‘circumvent’ the more rigid rule in place for treaties, for which, after all and apart from a subsequent inter-party consensus to the oppo­ site, pacta sunt servanda. A  Why Allow for Legally Binding Promises at the International Level? That states make use of unilateral declarations, and that their bindingness has become accepted, are two findings which as such are reason enough to focus on the applicable legal framework, and they were the driving force to write this study. An entirely different, but similarly interesting, question is why this has come to be the case. As mentioned, especially in contrast to most municipal legal systems, it may be asked why binding unilateral promises have evolved and come to be accepted on the inter­ national level. The answer to this question may be considered irrelevant for the application of the legal framework elaborated above: international courts adjudicate in reliance on binding unilateral assurances, states refer to them and scholars assert their existence. But for the future application of the Law on Promises, the question why this development has taken place is probably going to be at the back of the mind of many inter­national lawyers. Where the finding that legal systems without unilaterally bind­ ing assurances seem to work ‘just fine’ prevails in judging promises, the resulting scepticism may have very practical legal consequences. The question is hence worth some thought: why might the doctrine of unilat­ eral assurances slowly but surely have arisen on the international plane since the last century? The question whether or not there is actually a need in international law to allow states to assume unilateral commitments by a unilateral act has in fact been addressed in various sections of this study, although until now

308  Looking Ahead: A ‘Promising’ Future? not under a heading of its own. An answer to the question might begin by asking why states might intend to make use of a unilateral assurance as a nevertheless legally trustworthy pledge in light of the fact that they might as well conclude a treaty, even an oral one, and even one which includes only a one-sided, unilateral obligation (yet nevertheless requiring a mani­ festation of will by both states in order for it to arise). This question has already been raised in the Introduction, where an analysis of what might be influencing a state has been provided. To recall, a couple of factors have been mentioned. A position can be asserted more easily and quickly through a promise not asking for acceptance than through a treaty, as another state’s active participation is not necessary. Where a promise is made, no bargaining is involved by the beneficiary, but instead, a certain position is set before the addressee whereby a ‘fait accompli’ can be pro­ duced. Promises might in addition (publicly) signal a state’s goodwill and form a ‘gift’ which is immediately provided. They further allow a state to express a firm and immediate commitment to a (good) cause and irrespec­ tive of whether other states participate in the declaration or even adopt the same course of action. A firm announcement of a clear and specific course of action might also be used as a means of future self-restraint, to act as declared no matter what comes. The statement can similarly be directed to a very large audience and a declaration even to the whole ‘international community’ can as such be swiftly undertaken. It might be directed to the community of states, or indeed to a ‘hidden audience’, be it private inves­ tors, a court or a political opponent, with whom direct communication is presently and politically impossible.20 As chapter two, the History of Promises, has shown, there are for this and other reasons numerous declarations which do not reflect the offerand-acceptance structure necessitated in order for a declaration to be con­ sidered as binding under a treaty analysis. Many of them nevertheless display what, from an outside perspective, appears to be a clear intention to create a reliable undertaking.21 That international law through the legal doctrine of promises assumes such declarations to be more than a sign of goodwill has therefore in the foregoing pages been seen to stabilise, instead of undermine, the expectations which such one-sided pledges are intended to bring about. After all, they are made in order to be believed and to influence the perception and behaviour of their addressees. To support the statements made thus bolsters the impact of the declaration, just as it provides their addressees with an additional layer of security   For more see p 4 et seq.   Of the cases and state practice discussed in ch two, see the various pledges made before courts, or such assurances as the one given by Austria of its neutraliy, Egypt of its legal regime for the Suez canal, the unnamed foreign country vis-à-vis Austria on the use of war material, and some of the negative security assurances, especially (though by no means ony) the ones made by China. 20 21



Unilateral Promises and Bilateral Commitments 309

in protecting the belief and reliance on the fulfilment of the undertaking made. If this is so, however, how is it that a similar tool of legal commitment is not present in most national legal systems, where the unilateral pledge of one citizen will usually not create a legally biding undertaking vis-à-vis another? With the municipal contract and international treaty parallelism in mind, the municipal gap in this respect has been said possibly to raise some doubts as to the concept of unilaterally obliging promises as such. However, a couple of differences between the international system and the intra-state civil law situation are noteworthy. Unlike a country’s popu­ lation, which usually numbers millions or more, states remain part of a group with a limited and relatively small amount of members. This is true despite the growing importance of other international actors which may be capable of making similar declarations and are potential addressees. Such club members move about on the same plane, interact and inform each other either directly or are informed of their actions and statements via modern media. On account of the (ever-increasing) interdependence of states and their populations, the future course of action of one will often have a significant impact on that of many other states, whereby the fore­ seeability of another state’s conduct is of more importance than ever. It is, in this respect, no coincidence that states frequently make declarations in which a certain course of future conduct is openly announced, a behav­ iour which is not as commonly seen amongst private actors.22 In particu­ lar, declarations which are made by a state’s highest representative (or those especially empowered) will more often than not be of a considerable importance for their addressees (and hence a large number of people). In addition, and unlike private citizens acting and interacting on all kinds of social levels, states are in contact with each other usually in a much more formal way. Individuals performing their roles on both sides are not only speaking on their own behalf, but with limited powers. It is therefore no coincidence that politicians speak the way they do, and as any regular news viewer will have noticed, politicians have made it an art of their own to counter even the simplest ‘yes’ or ‘no’ question with an answer such as ‘let me put it this way’, only to end in a lengthy statement which gives nothing away. Public declarations of states are similarly often dissatisfying for those searching for a clear position. If politicians, there­ fore, usually employ vague and uncertain terms in their statements on the international plane, there is a good argument to be made that, when they refrain from doing so and adopt a ‘clear and specific’ statement in 22   The continuous growth of importance of other actors on the international plane (eg international organisations, NGOs or even large corporations) may make parallel legal norms ever more applicable in those areas. The parallelism will be at its strongest especially for international organisations, see pp 78–79.

310  Looking Ahead: A ‘Promising’ Future? matters which fall into their area of expertise and in circumstances which have put them on notice that the statement will be understood as having been carefully phrased, this announcement is to be relied upon as more than a mere political sign of goodwill, ie as a legal commitment. While the communication of private individuals might indeed be in some danger of being muzzled if a unilateral pledge was turned into a legally binding commitment (even here there may be room for debate), the interaction on the international plane is hence clearly different. Here, the legal frame­ work under a restrictive standard of interpretation will respond to these concerns by supporting (only) those statements with an adequate legal backing which, on account of their clear message (usually in a important matter), signal that they want to be taken seriously and may therefore be understood by the addressee to indeed mean what they say. B  Circumventing or Complementing Treaties? Although subject to limitations, the legal framework on the revocation of promises has been said not to be as rigid as the one imposed on obliga­ tions assumed by a treaty (at least where both include no terms as to their revocability). The question which might therefore be asked is whether providing states with the tool of promises could not undermine the future existence and use of treaties as a ‘more stable’ means for states to under­ take legal obligations. In this respect it is, however, important to recall that by a promise a state can only undertake a one-sided obligation for itself. While it has been said that promises as a result are not necessarily rare, it would be arguing for the opposite extreme to now assume that promises could be used to circumvent treaties and will become exceed­ ingly common: where a direct quid pro quo is sought by a state, a uni­ lateral promise is from the outset of no use. A competition between the two mechanisms of treaty and unilateral promise would hence only arise where a state wishes to receive no obligation in direct return. Such an obli­ gation may be assumed through an offer asking for nothing more than an acceptance (ie no quid pro quo), or it can be proclaimed as a hereby and herewith effective undertaking in the form of a promise. Even in these cases, the mechanism adopted by a state is likely to depend less on the regime of revocation triggered thereby than on what the declarant state hopes to achieve. Should it be interested in establishing an obligation ‘for its own good’ (ie to restrain itself, to convince a ‘hidden’ audience behind the addressee that a certain conduct is ‘outlawed’, to create a fait accompli that prevents further negotiations and debates, to fulfil an earlier pledge or obligation that it will commit itself, etc), it is likely to proclaim an obligation as created through the declaration itself. Especially where a statement is made to the international community as a whole, there



Unilateral Promises and Bilateral Commitments 311

might, in addition, be practical reasons which make the use of a promise more convenient than that of an offer asking for acceptance. Even in the limited number of scenarios where ‘competition’ might arise, the motivation behind the offer or promise made is hence usually going to be different. However, where a state has as such no preference as to whether to adopt an immediate obligation through a unilateral promise or merely offer one, it might, of course, decide to adopt a promise pre­ cisely and solely on account of the above-depicted ‘more flexible’ regime governing its revocation. But where it chooses to do so, the message sent to the addressee is also clear: you may rely, yet not as strongly and ‘per­ petually’ as if the same declaration had been included in a treaty with no clause as to its revocation. With the limits of a commitment chosen by a state being clear, the result is not that of bypassing the rule of pacta sunt servanda. With promises there is now rather merely another means available for a state to use, depending on which signal it intends to send. Promises consequently do not circumvent, but rather complement, trea­ ties in the toolbox available to states wishing to undertake a new legal commitment.

Concluding Remarks

I

N THE WAKE of the International Law Commission’s sixtieth anniversary in 2009, various publications have addressed the Commission’s merits and also some of its weaknesses.1 In the context of this book’s topic, it will be recalled that the Commission’s final output with respect to unilateral declarations capable of obliging states has met with con­siderable criticism on the above pages. The Commission’s overall effort in this field has, nevertheless (and in particular thanks to the ILC’s habit of precisely and openly documenting its every working step), served as a treasure chest of information and inspiration which was invaluable in reaching many of the findings in this book. In following in the footsteps of the International Law Commission, the initial plan for this study had, in fact, been to cover the entire subject of unilateral acts of states under international law, in order to provide an up-to-date description of that topic. Studying the ILC debates and the documents it produced during its endeavour, however, quickly revealed a major problem such an approach was bound to encounter: while some aspects within the topic appeared to be long settled and gave rise to little disagreement (such as, for example, the existence and consequences of protests or the legal effects of a waiver), others were still fraught with uncertainties. The close attention that the latter required could not be provided where the task was so broad as to cover the law on all unilateral state action. As some of the ‘subtopics’ still required full-fledged analysis, the Special Rapporteur found himself confronted with the task of having to construe the big picture even though some of the essential pieces of mosaic to be used still lacked clear determination. The book’s focus hence changed and became narrower, to deal solely with promises of states, as the latter were of great potential impact and clearly necessitated further and intensive study. With the wealth of material produced by the Commission, its final product, which underscored the importance of the available and continuously growing ICJ dicta and some scholarly writings, provided a fertile ground for further academic analysis. 1   See Georg Nolte (ed), Peace through International Law: the Role of the International Law Commission, a Colloquium at the Occasion of its Sixtieth Anniversary, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 211 (Berlin, 2009), and the articles included in the Focus Section on ‘The International Law Commission: Sixty Years of Progress in Codification’ in (2006) 49 German YB International Law 77, particularly Christian Tomuschat, ‘The International Law Commission: an Outdated Institution?’ (2006) 49 German YB International Law 77.



Concluding Remarks 313

This path, once chosen, led to a journey which nevertheless from the very beginning necessitated dealing with some questions in need of being answered for all unilateral acts. In the delimitation of the subject matter it was especially the adjective that defines this kind of state behaviour, ie its ‘unilateral’ character, which turned out to lead to a field of vast debate. After the questions raised thereby had been addressed and the unilateral act which was to be analysed had been delimited, the next problem encountered was that of a strong disagreement within the legal community on how to interpret different cases, as well as state practice, in respect of promises of states. While some authors pointed to examples dating back to the inauguration of the League of Nations, others considered the Nuclear Tests cases to have had nothing to build on, and each and every example provided has come under dogmatic fire from one or the other scholar. In order to provide the full picture, make up our own mind and allow the reader to judge for him or herself whether this position was accurate or not, the History of Promises has dealt with these examples in considerable detail. Another pivotal reason for doing so was that the law in this area has been shaped primarily through jurisprudence, which hence had to be portrayed. Despite the fact that, especially after the ICJ’s positioning within the debate in its Nuclear Tests cases’ judgments and its subsequent jurisprudence, both states and scholars were found to agree on the potential bindingness of unilateral assurances of states, the open questions within the legal framework appeared to be considerable. On closer look, however, it was not so much a bold move forward into completely uncharted territory which was necessary in order to illuminate the remaining blind spots. Systematic legal analysis with an eye on coherence allowed us to reach a number of the above-presented findings. With regard to the revocability of promises, the ICJ’s application of the principle of good faith in the Military and Paramilitary Activities in and against Nicaragua case has been decisive in order to put flesh on the bones of a ‘more flexible’ approach, which, as seen, has received the support of numerous scholars within and outside the ILC. It is especially in this area that future state practice, jurisprudence and scholarly writings should be closely monitored in order to ascertain whether the above-depicted findings continue to be further entrenched. By stepping back to look at the bigger picture presented in this study, the law on state promises can be seen not to be as sketchy and fragmented as first thought. In addition, the framework in place does not put states on too tight a leash, while nevertheless ensuring that what a state promises others in clear and specific words today, will not simply turn to dust overnight.

(Free Zones case)

PCIJ Mavrommatis Jerusalem Concessions case

Case or State practice

Issue

Declaration of state representative made before the Court

Date

26 March 1925 (judgment)

(Discussed in the book but omitted here as it was expressly classified as an offer by the PCIJ)

The British representative had stated that ‘there can be no question of our acting on any request to expropriate M Mavrommatis. If M Rutenberg was so . . . dishonest, so unreasonable, now as to ask to expropriate him . . . we should not act upon that request’, which led the Court to the following finding: ‘After this statement, the binding character of which is beyond question, the Court considers that henceforward it is quite impossible that the British or Palestine Governments should consent to comply with a request of the expropriation of M Mavrommatis’ Jerusalem Concession’.

Significance

(Beginning with the inauguration of the League of Nations in 1920 – today and as discussed in detail in chapter two)

Promises: Important Cases and Some Prominent Examples of State Practice

ANNEX I

25 May 1926 (judgment)

15 January 1930 (Adatci’s Report) – 6 April 1935 (Court’s Opinion)

5 April 1933 (judgment)

PCIJ Certain German Interests in Upper Polish Silesia case

PCIJ Advisory Opinion Minority Schools in Albania

PCIJ Legal Status of Eastern Greenland case

Oral declaration confirmed in writing by the Norwegian Minister for Foreign Affairs, Ihlen, made vis-àvis the Danish Minister

Declarations concerning the protection of minorities made vis-à-vis the League of Nations

Declaration of state representative made before the Court

The ‘Ihlen declaration’ was considered binding upon Norway by the PCIJ. Again the legal construction remained ambiguous. The Court used the word ‘promise’ numerous times which prompted parts of legal doctrine to begin to consider promises as binding in international law. The Court, indeed, never spoke of a treaty, agreement, offer or acceptance when it referred to the declaration, whose binding nature it simply considered to be ‘beyond dispute’.

The legal interpretation of the declarations made by various countries vis-àvis the League is ambiguous. The treaty nature of their assurance was, however, explicitly rejected by two state representatives (Estonia and Lithuania). In an expert opinion prepared for the League, the unilateral character of the Lithuanian declaration was addressed and left open, since the declaration was considered to be binding on that country in any event. In its advisory opinion, the PCIJ did not discuss the nature of the Albanian declaration (also referred to as an ‘instrument’ or ‘act’ but never a treaty), while clearly considering it to be binding upon Albania.

The judgment contains the following passage in respect of assurances given by the Polish representative that certain property will not be expropriated: ‘The representative before the Court of the respondent Party, in addition to the declarations above mentioned . . . has made other similar declarations which will be dealt with later; the Court can be in no doubt as to the binding character of all these declarations’.

Annex I—Promises: Important Cases and Examples of State Practice  315

Date

8 August 1945 (London Treaty)

1955

24 April 1957

Case or State practice

International Military (Nuremberg) Tribunal

State practice

State practice

Table cont.:

Egyptian declaration on the Suez Canal

Austrian declarations of neutrality

German Assurances

Issue

Egypt deposited a written unilateral declaration in respect of the Suez Canal with the UN Secretary-General. The declaration included a reaffirmation of the Constantinople Convention but also numerous new assurances and a paragraph according to which the declaration ‘with the obligations therein constitutes an international instrument’.

In fulfilment of a memorandum in which Austria had assured its intention to make a ‘declaration in a form which will obligate Austria internationally to practice in perpetuity a neutrality of the type maintained by Switzerland’, Austria enacted a constitutional law and subsequently notified governments around the world of its decision to maintain a permanent neutrality, asking them to ‘recognise’ this self-declared permanent neutrality.

Article 6 of the IMT’s Charter listed the ‘planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing’ as a war against the peace. The indictment against ‘Herman Goering et al’ included seven charges of such violations of assurances.

Significance

316  Annex I—Promises: Important Cases and Examples of State Practice

20 February 1969 (judgment)

20 December 1974 (judgments)

ICJ North Sea Continental Shelf cases

ICJ Nuclear Tests cases

French declarations to cease atmospheric nuclear testing

Germany’s conduct and statements in respect of the continental shelf

The ICJ considered it to be ‘well recognised’ that declarations made by way of unilateral acts may have the effect of creating legal obligations. When it was the intention of the state making the declaration that it should become bound according to its terms, that intention conferred on the declaration the character of a legal undertaking, the state being thenceforth legally required to follow a course of conduct consistent with the declaration. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other states, was required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the state was made. The intention to be bound had to be ascertained by interpretation of the unilateral act taking note of the declarations substance as well as the surrounding circumstances while applying a restrictive interpretation. The Court found that no formal requirements existed. The binding character of an international obligation assumed by unilateral declaration is said to be based on good faith.

The Court did not consider whether Germany had made a unilateral binding assurance as it found only estoppel to be worthy of a closer analysis since: ‘In principle, when a number of States, including the one whose conduct is invoked, and those invoking it, have drawn up a convention specifically providing for a particular method by which the intention to become bound by the régime of the convention is to be manifested – namely by the carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not carried out these formalities, though at all times fully able and entitled to do so, has nevertheless somehow become bound in another way’. Judge Ammoun in his separate opinion criticised the Court for not taking into account a ‘well-settled doctrine that a State may be bound by a unilateral act’. He himself, however, dismissed it as applicable to Germany in this case.

Annex I—Promises: Important Cases and Examples of State Practice  317

17 February 1977 (note) 8 December 1977 (UN memorandum)

13 January 1978 (UN memorandum)

8 February 1977 (declarations) – 18 January 1978 (judgment)

State practice (state declaration assessed by the United Nations)

State practice (state declaration assessed by the United Nations)

State practice ECtHR

Ireland v United Kingdom

Date

Case or State practice

Table cont.:

Declaration by the British representative made before the ECtHR and in direct reference to the Nuclear Tests cases pledging not to reintroduce certain interrogation techniques

Unilateral declarations on torture and other inhumane treatment made by states pursuant to GA Res 32/64 which had a unilateral ‘model declaration’ annexed to it

Declaration by Switzerland to the United Nations

Issue

Inspired by the Nuclear Tests cases and having decided to ‘make a statement sufficiently clear, addressed to this Court as representing the international community of free Europe, so as to enable the Court to hold at this stage that that statement constitutes an undertaking possessing legal effect’, the British representative stated the following before the ECtHR: ‘I am authorised to give, in relation to the “five techniques”, the following unqualified undertaking, and I measure my words with care. The Government of the United Kingdom have considered the question of the use of the “five techniques” with very great care and with particular regard to Article 3 of the Convention. They now give this unqualified undertaking, that the “five techniques” will not in any circumstances be reintroduced as an aid to interrogation’. The ECtHR took ‘formal note of the undertaking given before it’.

Applying a more restrictive approach, the UN Secretariat in a memorandum considered the declarations not to constitute legal undertakings as: ‘the model declaration annexed to the resolution would merely have Governments declare their “intention” to comply and to implement, rather than indicate that they “will” or “undertake to” comply and implement. On balance, therefore, the resolution suggests that no binding obligation is intended’. This was found to be confirmed by the debates which lead up to the adoption of the Resolution.

In a note to the United Nations, Switzerland stated that it ‘would . . . independently and without recognising any legal obligation in the matter, take care to prevent [its] territory from being used for the purpose of circumventing the Security Council sanctions’. In a memorandum, the UN Legal Secretariat drew the (very far-going) conclusion that Switzerland had thereby ‘unilaterally and unreservedly accepted the obligation’ not to allow the holders of Rhodesian passports entry into the country.

Significance

318  Annex I—Promises: Important Cases and Examples of State Practice

27 June 2001 (judgment)

ICJ

Declarations before the ICJ

Various declarations made by the five official nuclear weapons powers assuring not to use nuclear weapons in future against countries party to the NPT

Table continued on the following page:

LaGrand case

Negative security assurances

1978, 1982, 1995 and 2010 (declarations)

State practice

The Court emphasised that ‘[i]f a State, in proceedings before this Court, repeatedly refers to substantial activities which it is carrying out in order to achieve compliance with certain obligations under a treaty, then this expresses a commitment to follow through with the efforts in this regard’. In its ruling it unanimously took note of this commitment and held that it ‘must be regarded as meeting the Federal Republic of Germany’s request for a general assurance of non-repetition’.

The declarations have, at least in part, been considered to be binding unilateral commitments by legal commentators and (some) of their addressees. Their wording is both clear and specific. China, in addition, spoke of an unconditional undertaking, and all statements are marked by a high degree of formality. The ICJ in its advisory opinion unanimously observed that any future behaviour ‘should’ be compatible, inter alia, with these ‘undertakings’. The NPT parties, however, have expressed their wish that these assurances should be contained in a ‘legally binding instrument’ and, therefore, appear to interpret them as presently not legally binding.

Annex I—Promises: Important Cases and Examples of State Practice  319

(Order) Questions relating to the Obligation to Prosecute or Extradite case

ICJ

28 May 2009

3 February 2006 (judgment)

ICJ Case concerning Armed

Activities on the Territory of the Congo

Date

Case or State practice

Table cont.:

Declaration made by the representative of Senegal before the ICJ

Statement made by the Minister of Justice of Rwanda before the United Nations Commission on Human Rights

Issue

Belgium indicated that a solemn declaration made before the Court by the Agent of Senegal ‘could be sufficient for Belgium to consider that its Request for the indication of provisional measures had no further raison d’être, provided that such a declaration would be clear and unconditional, and that it would guarantee that all the necessary measures would be taken by Senegal to ensure that Mr Habré did not leave Senegalese territory before the Court delivered its final Judgment’. The ICJ consequently took note of the ‘formal assurance’ repeatedly made by Senegal which during the proceedings had solemnly declared that ‘Senegal will not allow Mr Habré to leave Senegal while the present case is pending before the Court’.

The Court further elaborated on its Nuclear Tests cases doctrine and observed that ‘in accordance with its consistent jurisprudence it is a well established rule of international law that the Head of State, the Head of Government and the Minister of Foreign Affairs are deemed to represent the State merely by virtue of exercising their functions, including the performance, on behalf of said State, of unilateral acts having the force of international commitments’. The Court noted that other persons too might be authorised to do so and could not rule out that this might be true for a Minister of Justice. It recalled that for a declaration to be binding ‘its actual content as well as the circumstances in which it was made’ had to be analysed. In respect of content, it further recalled that a declaration could create legal obligations only if it was made in ‘clear and specific terms’. The declaration before it, however, was not held to be specific enough in order to view it as binding. Instead it was of an ‘indeterminate character’ and lacked a precise time-frame by pledging that reservations would ‘shortly’ be withdrawn. The context of a ‘presentation of general policy’ was said to confirm this finding.

Significance

320  Annex I—Promises: Important Cases and Examples of State Practice

ANNEX II The ILC’s Guiding Principles Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations1 The International Law Commission, Noting that States may find themselves bound by their unilateral behaviour on the international plane, Noting that behaviours capable of legally binding States may take the form of formal declarations or mere informal conduct including, in certain situations, silence, on which other States may reasonably rely, Noting also that the question whether a unilateral behaviour by the State binds it in a given situation depends on the circumstances of the case, Noting also that in practice, it is often difficult to establish whether the legal effects stemming from the unilateral behaviour of a State are the consequence of the intent that it has expressed or depend on the expectations that its conduct has raised among other subjects of international law, Adopts the following Guiding Principles which relate only to unilateral acts stricto sensu, ie those taking the form of formal declarations formulated by a State with the intent to produce obligations under international law. 1.  Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith; States concerned may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected. 2.  Any State possesses capacity to undertake legal obligations through unilateral declarations. 1   Text adopted by the ILC at its Fifty-eighth session, in 2006, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/61/10). Available at http://untreaty.un.org/ilc/guide/9_9.htm, to be reproduced in (2006) II (2) YB International Law Commission.

322  Annex II – The ILC’s Guiding Principles 3.  To determine the legal effects of such declarations, it is necessary to take account of their content, of all the factual circumstances in which they were made, and of the reactions to which they gave rise. 4.  A unilateral declaration binds the State internationally only if it is made by an authority vested with the power to do so. By virtue of their functions, heads of State, heads of Government and ministers for foreign affairs are competent to formulate such declarations. Other persons representing the State in specified areas may be authorized to bind it, through their declarations, in areas falling within their competence. 5.  Unilateral declarations may be formulated orally or in writing. 6.  Unilateral declarations may be addressed to the international community as a whole, to one or several States or to other entities. 7.  A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms. In the case of doubt as to the scope of the obligations resulting from such a declaration, such obligations must be interpreted in a restrictive manner. In interpreting the content of such obligations, weight shall be given first and foremost to the text of the declaration, together with the context and the circumstances in which it was formulated. 8.  A unilateral declaration which is in conflict with a peremptory norm of general international law is void. 9.  No obligation may result for other States from the unilateral declaration of a State. However, the other State or States concerned may incur obligations in relation to such a unilateral declaration to the extent that they clearly accepted such a declaration. 10.  A unilateral declaration that has created legal obligations for the State making the declaration cannot be revoked arbitrarily. In assessing whether a revocation would be arbitrary, consideration should be given to: (i) any specific terms of the declaration relating to revocation; (ii) the extent to which those to whom the obligations are owed have relied on such obligations; (iii) the extent to which there has been a fundamental change in the circumstances.

Bibliography Books and Articles Abi-Saab, Georges, ‘Les sources du droit international: un essai de déconstruction’ in Manuel Rama-Montaldo (ed), El derecho internacional en un mundo en transfomacion, Liber Amicorum en homenaje al Profesor Eduardo Jiménez de Aréchaga (Montevidéo, 1994) 29–49 Adatci, Minéitciro, ‘Petition from Thirty-Four Persons of Russian Origin Living in Lithuania Regarding the Confiscation of their Lands under the Lithuanian Agrarian Reform Law of 15 February 1922, Report to the League of Nations Council’ (1930) 11 League of Nations Official Journal 179 Anzilotti, Dionisio, Cours de droit international (translation from the Italian by G Gidel, Paris, 1929) Arechaga, Jimenez de, ‘International Law in the Past Third of a Century’ (1978) 159 Recueil des Cours de l’Académie de Droit International de la Haye 1 Balladore Pallieri, Giorgio, Diritto Internazionale Pubblico, 7th edn (Milan, 1956) Bastid, Suzanne, Les traités dans la vie internationale (Paris, 1985) Bernauer, Thomas, Nuclear Issues on the Agenda of the Conference on Disarmament (New York, 1991) Bindschedler, Rudolf L, ‘Die Neutralität im modernen Völkerrecht’ (1956) 17 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 1 Bleckmann, Albert, ‘Anmerkungen zum Nordirland-Fall des Europäischen Gerichtshofs für Menschenrechte’ (1979) Europäische Grundrechte Zeitschrift 188 Bollecker-Stern, B, ‘L’affaire des essais nucléaires francais devant la Cour Internationale de Justice’ (1974) Annuaire Français de Droit International 299 Bonner, David, ‘Ireland v. United Kingdom, Annotation’ (1978) 27 International and Comparative Law Quarterly 897 Bos, Maarten, A Methodology of International Law (Amsterdam/New York, 1984) Bowett, DW, ‘Estoppel before International Tribunals and its Relation to Acquiescence’ (1957) 33 British YB International Law 176 Brandon, Michael, ‘Analysis of the Term Treaty and International Agreement for Purposes of Registration under Article 102 of the United Nations Charter’ (1953) 47 American J International Law 49 Brierly, James, Report by J.L. Brierly, Special Rapporteur for the Law of Treaties, A/ CN.4/23 reproduced in (1950) II Yearbook of the International Law Commission 222 —— The Basis of Obligation in International Law and Other Papers (Oxford, 1958) Briggs, HW, ‘Nicaragua v. United States: Jurisdiction and Admissibility’ (1985) 79 American J International Law 373 Brownlie, Ian, ‘The Responsibility of States for the Acts of International Organizations’ in Maurizio Ragazzi (ed), International Responsibility Today, Essays in Memory of Oscar Schachter (Leiden/Boston, 2005) 355–63

324  Bibliography Brownlie, Ian, Principles of Public International Law, 7th edn (Oxford/New York, 2008) Bunn, George, ‘The Legal Status of U.S. Negative Security Assurances to NonNuclear Weapon States’ (1997) 4(3) The Nonproliferation Review 1 Caflisch, Lucius, ‘La pratique suisse en matière de droit international public 1982’ in Schweizerisches Jahrbuch für Internationales Recht (1983) vol XXXIX 177–268 Cahier, Philippe, ‘Le problème des effets des traités à l’égard des Etats tiers’ in Recueil des Cours de l‘Académie de Droit International de la Haye (Leiden, 1974) vol 143, 589–736 Carbone, Sergio M, Promessa e affidamento nel diritto internazionale (Milano, 1967) —— ‘Promise in International Law: A Confirmation of its Binding Force’ (1975) 1 Italian J International Law 166 Cassese, Antonio, International Law, 2nd edn (Oxford, 2004) Cedeño, Victor Rodriguez, First Report on Unilateral Acts of States, A/CN.4/486 (1998) —— Second Report on Unilateral Acts of States, A/CN.4/500 (1999) —— Second Report on Unilateral Acts of States, Addendum, A/CN/500/Add.1 (1999) —— Third Report on Unilateral Acts of States, A/CN.4/505 (2000) —— Fourth Report on Unilateral Acts of States, A/CN.4/519 (2001) —— Fifth Report on Unilateral Acts of States, A/CN.4/525 (2002) —— Fifth Report on Unilateral Acts of States, Addendum, A/CN.4/525/Add.1 (2002) —— Fifth Report on Unilateral Acts of States, Corrigendum, A/CN.4/525/ Add.1/Corr.2 (2002) —— Fifth Report on Unilateral Acts of States, Addendum 2, A/CN.4/525/Add.2 (2002) —— Sixth Report on Unilateral Acts of States, A/CN.4/534 (2003) —— Seventh Report on Unilateral Acts of States, A/CN.4/542 (2004) —— Eighth Report on Unilateral Acts of States, A/CN.4/557 (2005) —— Ninth Report on Unilateral Acts of States, A/CN.4/569 (2006) —— Ninth Report on Unilateral Acts of States, Addendum 1, A/CN.4/569/Add.1 (2006) Charpentier, Jean, La reconnaissance internationale et l’évolution du droit des gens (Paris, 1956) —— ‘Engagements unilatéraux et engagements conventionnels: différences et convergences’ in Jerzy Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century (The Hague/London/Boston, 1996) 367–80 Chen, Ti-Chiang, The International Law of Recognition with Special Reference to Practice in Great Britain and the United States (London, 1951) Combacau, Jean and Sur, Serge, Droit international public, 5th edn (2001) D’Argent, Pierre, ‘Article 36, Convention de Vienne de 1969’ in Olivier Corten and Pierre Klein (eds), Les conventions de Vienne sur le droit des traités, commentaire article par article (Brussels, 2006) vol II, 1465–69 D’Aspremont Lynden, Jean, ‘Les travaux de la commission du droit international relatifs aux actes unilatéraux des états’ (2005) 109 Revue Générale de Droit International Public 163 Dahm, Georg, Delbrück, Jost and Wolfrum, Rüdiger, Völkerrecht, 2nd edn (Berlin, 2002) vol I, 3

  Bibliography 325 De Nova, Rodolfo, ‘Die Neutralisation Österreichs’ (1958) 54 Die Friedenswarte 298 Deeks, Ashley, Promises Not to Torture: Diplomatic Assurances in U.S. Courts, American Society of International Law Discussion Paper Series (December 2008) Degan, Vladimir-Djuro, ‘Unilateral Act as a Source of Particular International Law’ (1994) 5 Finnish Yearbook of International Law 149 Dehaussy, Jacques, ‘La déclaration égyptienne de 1957 sur le canal de Suez’ (1960) VI Annuaire Francais de Droit International 169 —— ‘Les actes juridiques unilatéraux en droit international public: à propos d’une théorie restrictive’ (1965) 92 Journal du droit international 41 Dominicé, Christian, A propos du principe de l’estoppel en droit des gens (1968) Dupuy, Pierre-Marie, ‘La pratique de l’article 38 du Statut de la Cour Internationale de Justice dans le cadre des plaidoiries ecrites et orales’ in United Nations Office of Legal Affairs (ed), Collection of Essays by Legal Advisers of States, Legal Advisers of International Organizations and Practitioners in the Field of International Law = Recueil d’Articles de conseillers juridiques d’Etats, d’organisations internationales et de praticiens du Droit International (New York, 1999) 377–94 —— Droit international public, 8th edn (Paris, 2006) Elaraby, Nabil, ‘Some Reflections on Disarmament’ in Christian Tomuschat (ed), The United Nations at Age Fifty: A Legal Perspective 9-24 (The Hague, 1995) Elias, TO, The Modern Law of Treaties (Dobbs Ferry, 1974) Elkind, Jerome B, ‘Footnote to the Nuclear Tests Cases: Abuse of Right – A Blind Alley for Environmentalists’ (1976) 9 Vanderbilt JTL 57 Ermacora, Felix, 20 Jahre österreichische Neutralität, 2nd edn (1975) Faßbender, Bardo, ‘Die Völkerrechtssubjektivität internationaler Organisationen’ (1986) 37 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht 17 Fiedler, Wilfried, ‘Zur Verbindlichkeit einseitiger Versprechen im Völkerrecht’ (1976) 19 German YB International Law 35 —— ‘Unilateral Acts in International Law’ in Rudolf Bernhardt, Peter MacalisterSmith and Max-Planck-Institut für Ausländisches Öffentliches Recht und Völkerrecht. (eds), Encyclopedia of Public International Law (Amsterdam/New York, 2000) vol 4 Fitzmaurice, Sir Gerald, ‘The Law and Procedure of the International Court of Justice, 1951–54: General Principles and Sources of Law ‘ (1953) 30 British YB International Law 1 —— ‘The Law and Procedure of the International Court of Justice 1951–54: Treaty Interpretation and Other Treaty Points’ (1957) 33 British YB International Law 202 —— ‘Some Problems Regarding the Formal Sources of International Law’ in Symbolae Verzijl (The Hague, 1958) 153–76 Franck, Thomas M, ‘Word Made Law: the Decision of the International Court of Justice in the Nuclear Test Cases’ (1975) 69 American J International Law 612 —— ‘Icy Day at the ICJ’ (1985) 79 American J International Law 379 Garner, James W, ‘The International Binding Force of Unilateral Oral Declarations’ (1933) 27 American J International Law 493 Gigante, A, ‘The Effect of Unilateral State Acts in International Law’ (1969) 2 NYU School of Law J International Law and Politics 333 Goodman, Camille, ‘Acta Sunt Servanda? A Regime for Regulating the Unilateral Acts of States at International Law’ (2006) 25 Australian YB International Law 43

326  Bibliography Grotius, Hugo, The Rights of War and Peace (translation, Indianapolis, 2005) vol II Guggenheim, Paul, Traité de droit international public, 2nd edn (1967) vol 1 Hafner, Gerhard, ‘Die österreichische diplomatische Praxis zum Völkerrecht’ (1981) 32 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht 301 Heintschel von Heinegg, Wolf, ‘Einseitige Rechtsakte’ in Knut Ipsen (ed), Völkerrecht, 5th edn (München, 2004) 234–40 Institut de Droit International, ‘Resolutions Concerning the Recognition of New States and New Governments’ (1938) 30 American J International Law, Supplement 185 Jacqué, Jean-Paul, Eléments pour une théorie de l’acte juridique en droit international public (Paris, 1972) —— ‘A propos de la promesse unilatérale’ in Melanges offerts a Paul Reuter (1981) 327–45 Jellinek, Georg, Die Rechtliche Natur der Staatenverträge. Ein Beitrag zur Juristischen Construction des Völkerrechts (Wien, 1880) Jennings, Sir Robert, ‘General Course on Principles of International Law’ (1967) 121(2) Recueil des Cours de l’Académie de Droit International de la Haye 325 Karl, Wolfram, ‘Protest’ in Rudolf Bernhardt (ed), Encyclopedia of Public International Law (Amsterdam, 1986) vol III 1157–59 Kennedy, David, Of War and Law (Princeton, 2006) Kersten, Jens, Georg Jellinek und die klassische Staatslehre (Tübingen, 2000) Kewenig, Wilhelm A, ‘Der Internationale Gerichtshof und die französischen Kernwaffenversuche’ in Recht im Dienst des Friedens, Festschrift für Eberhard Menzel (1975) 323–48 Khosla, Dinesh, ‘Nuclear Test Cases: Judical Valour v. Judicial Discretion’ (1978) Indian YB International Law 322 Kiss, Alexandre-Charles, ‘Les actes unilatéraux dans la practique francais du droit international’ (1961) 2 Revue Générale de Droit International Public 317 —— Répertoire de la pratique Francaise en matière de droit international public (Paris, 1962) vol I Klabbers, Jan, The Concept of Treaty in International Law (The Hague/Boston/ London 1996) Kolb, Robert, La bonne foi en droit international public. Contribution à l‘étude des principes généraux de droit (Paris, 2000) Koskenniemi, Martti, From Apology to Utopia: the Structure of International Legal Argument (Reissue with a new epilogue, Cambridge, 2005) Kramer, Francisco Villagrán, ‘Les actes uniltéraux dans le cadre de la jurisprudence internationale’ in International Law on the Eve of the Twenty First Century: Views from the International Law Commission (New York, 1997) Kunz, Josef, ‘Austria’s Permanent Neutrality’ (1956) 50 American J International Law 418 Laband, Paul, ‘Besprechung zu: Mérignhac, Traité de Droit Public International’ (1906) 20 Archiv für öffentliches Recht 302 Lachs, M, ‘Some Thoughts on the Role of Good Faith in International Law’ in Declarations on Principles, Liber amicorum diciplorumque (1977) 47–55 Lagerwall, Anne, ‘Article 64, Convention de Vienne de 1969’ in Olivier Corten and Pierre Klein (eds), Les Conventions de Vienne sur le droit des traités (Brussels, 2006) vol III, 2299–45

  Bibliography 327 Lauterpacht, Elihu, ‘The Development of the Law of International Organization by the Decisions of International Tribunals’ (1976) IV Recueil des Cours de l’Académie de Droit International de la Haye 377 Lauterpacht, Hersch, Private Law Sources and Analogies of International Law (with special reference to International Arbitration) (London/New York, 1927) —— Law of Treaties, Report of the Special Rapporteur, reproduced in (1953) II Yearbook of the International Law Commission 90 —— Recognition in International Law (New York, 1978, reprint of Cambridge, 1947 edn) —— The Development of International Law (Cambridge, 1996 (1st edn 1958)) Lavalle, Roberto, ‘About the Alleged Customary Law Nature of the Rule Pacta Sunt Servanda’ (1982) 33 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht 9 Lellouche, Pierre, ‘The International Court of Justice: the Nuclear Tests Cases – Judicial Silence v. Atomic Blasts’ (1975) 16 Harvard International Law J 614 Leutert, Jürg, Einseitige Erklärungen im Völkerrecht – Ein Beitrag zur Lehre vom Vertrauensschutz (Diessenhofen, 1979) Macdonald, R St J and Hough, Barbara, ‘The Nuclear Tests Case Revisited ‘ (1977) 20 German YB International Law 337 MacGibbon, IC, ‘Estoppel in International Law’ (1958) 7 International and Comparative Law Quarterly 468 Martin, Antoine, L’Estoppel en droit international public précédé d’un apercu de la théorie de l’estoppel en droit anglais (Paris, 1979) McWhinney, Edward, ‘International Law-making and the Judicial Process: the World Court and the French Nuclear Tests Case’ (1975) 3 Syracuse J International Law and Commerce 9 Mendelson, MH, ‘Are Treaties Merely a Source of Obligation?’ in William Elliott Butler (ed), Perestroika and International Law (Dordrecht, 1990) Menon, PK, The Law of Recognition in International Law: Basic Principles (Lewiston, 1994) Mensbrugghe, Yves van der, Les garanties de la liberté de navigation dans le canal de Suez (Paris, 1964) Meyrowitz, Henri, ‘Le débat sur le non-recours en premier aux armes nucléaires et la déclaration Soviétique du 15 Juin 1982’ (1982) XXVIII AFDI 147 Müller, Jean Paul and Cottier, Thomas, ‘Acquiescenc’ in Rudolf Bernhardt (ed), Encyclopedia of Public International Law (1992) vol I, 14–16 —— Estoppel’ in Rudolf Bernhardt (ed), Encyclopedia of Public International Law (1992) vol I, 116–19 Müller, Jörg P, Vertrauensschutz im Völkerrecht (Cologne/Berlin, 1971) Nguyen, Quoc Dinh, Pellet, Alain and Daillier, Patrick, Droit international public, 7th edn (Paris, 2002) Nolte, Georg (ed), Peace through International Law: the Role of the International Law Commission, a Colloquium at the Occasion of its Sixtieth Anniversary, Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 211 (Berlin, 2009) Obieta Chalbaud, José A, The International Status of the Suez Canal, 2nd edn (The Hague, 1970) Oppenheim, Lasa, Jennings, Robert and Watts, Arthur, Oppenheim’s International Law, 9th edn (Harlow, 1992) vol 1, Introduction and Part 1–4

328  Bibliography Parry, Clive, Grant, John P and Barker, J Craig, Parry and Grant Encyclopaedic Dictionary of International Law, 2nd edn (Dobbs Ferry, 2004) Paulus, Andreas L, Die internationale Gemeinschaft im Völkerrecht – The ‘International Commmunity’ in Public International Law: English Summary (München, 2001) Pellet, Alain, ‘Commentary to Art. 38 ICJ Statute’ in Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm (eds), The Statute of the International Court of Justice: A Commentary (Oxford, 2006) 677–792 Pfluger, Franz, Die einseitigen Rechtsgeschäfte im Völkerrecht (Zurich, 1936) Pufendorf, Samuel, Elementorum Jurisprudentiae Universalis Libri Duo (translation, Oxford, 1931) vol 2 Quadri, R, ‘Cours général de droit international public’ (1964) (III) 113 Recueil des Cours de l‘Académie de Droit International de la Haye 245 Quintana, Juan José, ‘The Nicaragua Case and the Denunciation of Declarations of Acceptance of the Compulsory Jurisdiction of the International Court of Justice’ (1998) 11 Leiden J International Law 97 Ratner, Steven R, ‘Precommitment Theory and International Law: Starting a Conversation’ (2002–2003) 81 Texas Law Review 2055 Reut-Nicolussi, Eduard, ‘Die österreichische Neutralitätserklärung vom 26. Oktober 1955’ (1956) Internationales Recht und Diplomatie 15 Reuter, Paul, ‘Principes de droit international public’ (1961) 103 Recueil des Cours de l’Académie de Droit International de la Haye 431 —— Droit international public, 6th edn (Paris, 1983) —— Introduction to the Law of Treaties (London/New York, 1995) Ritter, Jean Pierre, ‘L’affaire des essais nucléaire et la notion de judgement déclaratoire’ (1975) 21 AFDI 278 Rodley, Nigel, The Treatment of Prisoners under International Law, 2nd edn (Oxford, 1999) Rosas, Allan ‘Negative Security Assurances and Non-Use of Nuclear Weapons’ (1982) 25 GYIL 199 Rousseau, Charles, Droit international public, vol I, Introduction et Sources (Paris, 1970) Rubin, Alfred P, ‘The International Legal Effects of Unilateral Declarations’ (1977) 71 American J International Law 1 Ruda, José Maria, ‘Recognition of States and Governments’ in M Bedjaoui (ed), International Law: Achievements and Prospects (1991) 449–65 Ruiz, José Juste, ‘Mootness in International Adjudication: the Nuclear Tests Cases’ (1977) 20 German YB International Law 358 Schwarzenberger, Georg, International Law as Applied by International Courts and Tribunals, 3rd edn (London, 1957) vol 1 —— A Manual of International Law, 5th edn (London, 1967) Schweisfurth, Theodor, ‘Die “Zustimmung” der Bundesregierung zur Stationierung amerikanischer Mittelstreckenraketen in der Bundesrepublik Deutschland’ (1974) 22 Archiv des Völkerrechts 195 —— ‘International Treaties and Third States’ (1985) 45 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 653 Shaw, Malcolm N, International Law, 6th edn (Cambridge/New York, 2008) Sicault, Jean-Didier, ‘Du caractère obligatoire des engagements unilatéraux en droit international public’ (1979) 83 Revue Générale de Droit International Public 633 Sinclair, Ian, The Vienna Convention on the Law of Treaties, 2nd edn (Manchester, 1984)

  Bibliography 329 Skubiszewski, Krzysztof, ‘Les actes unilatéraux des états’ in Mohammed Bedjaoui (ed), Droit international: Bilan et perspectives (Paris, 1991) vol 1, 231–51 —— ‘Unilateral Acts of States’ in M Bedjaoui (ed), International Law: Achievements and Prospects (1991) 221–40 Strupp, Karl, Neutralisation, Befriedung, Entmilitarisierung (1933) Sur, Serge, ‘Les affaires des essais nucléaires’ (1975) 79 Revue Générale de Droit International Public 972 Suy, Eric, Les actes juridiques unilatéraux en droit international public (Paris, 1962) —— ‘Unilateral Acts as a Source of International Law: Some New Thoughts and Frustrations’ in Droit du pouvoir, pouvoir du droit: mélanges offerts à Jean Salmon (Brussels, 2007) 631–42 Suy, Eric and Angelet, Nicolas, ‘Rechtsgeschäfte, einseitige’ in Ignaz SeidlHohenveldern (ed), Lexikon des Rechts, Völkerrecht, 3rd edn (Neuwied, 2001) 319–21 Thirlway, HWA, International Customary Law and Codification: an examination of the continuing role of custom in the present period of codification of international law (Leiden, 1972) —— , ‘Concepts, Principles, Rules and Analogies: International and Municipal Legal Reasoning’ (2002) 294 Recueil des Cours de l’Académie de Droit International de la Haye 267 Tomuschat, Christian, ‘Commentary to Art. 36 ICJ Statute’ in Andreas Zimmermann, Christian Tomuschat and Karin Oellers-Frahm (eds), The Statute of the International Court of Justice: A Commentary (Oxford, 2006) 589–657 —— ‘The International Law Commission: an Outdated Institution?’ (2006) 49 German YB International Law 77 —— ‘Unilateral Acts under International Law’ in Droits et culture. Mélanges en l’honneur du Doyen Yadh Ben Achour (Tunis, 2008) 1487 Trebilcock, Anne M, ‘Waiver’ in Rudolf Bernhardt (ed), Encyclopedia of Public International Law (Amsterdam, 1984) vol IV 1327–31 Triepel, Heinrich, Völkerrecht und Landesrecht (Leipzig, 1899) United States Department of State, The Suez Canal Problem, 26 July–22 September 1956 (Washington, 1956) Venturini, Gian Carlo, ‘Attitudes et actes unilatéraux des états’ (1964) (II) 112 Recueil des Cours de l’Académie de Droit International de la Haye 363 Verdross, Alfred, ‘Le fondement du droit international’ (1927) 16 Recueil des Cours de l‘Académie de Droit International de la Haye 247 —— Völkerrecht, 3rd edn (Vienna, 1955) —— Die immerwährende Neutralität Österreichs, 4th edn (Vienna, 1977) Verdross, Alfred and Simma, Bruno, Universelles Völkerrecht: Theorie und Praxis, 3rd edn (Berlin, 1984) Vicuña, Francisco Orrego, ‘The Legal Nature of the Optional Clause and the Right of a State to Withdraw a Declaration Accepting the Compulsory Jurisdiction of the International Court of Justice’ in Liber Amicorum Judge Shigeru Oda (2002) vol 1, 463–79 Virally, Michel, La pensée juridique (Paris, 1960) —— ‘The Sources of International Law’ in Max Sørensen (ed), Manual of Public International Law (New York/London, 1968) 116–74 —— ‘Unilateral Acts of International Organizations’ in M Bedjaoui (ed), International Law: Achievements and Prospects (1991) 241–63

330  Bibliography Visscher, Charles de, Problèmes d’interprétation judiciaire en droit international public (Paris, 1963) Visscher, Paul de, ‘Remarques sur l’évolution de la jurisprudence de la Cour Internationale de Justice relative au fondement obligatoire des certains actes unilatéraux’ in Essays in Honour of Manfred Lachs (The Hague/Boston, 1984) 459–65 Vitzthum, Wolfgang Graf, ‘Begriff, Geschichte und Rechtsquellen des Völkerrechts’ in Wolfgang Graf Vitzthum (ed), Völkerrecht, 4th edn (Berlin, 2007) 1–79 Wengler, Wilhelm, Völkerrecht (Berlin, 1964) vol I Whiteman, Marjorie M and Hackworth, Green Haywood, Digest of International Law (Washington, 1963) vol 1 Zemanek, Karl, ‘Neutral Austria in the United Nations’ (1961) 15 International Organization 408 —— ‘Unilateral Legal Acts Revisited’ in Karel Wellens (ed), International Law: Theory and Practice, Essays in Honour of Eric Suy (The Hague, 1998) 209–21 Zoller, Elisabeth, La bonne foi en droit international public (Paris, 1977)

ILC Materials ILC, Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law, UN Doc A/CN.4/L.682 to be reproduced in (2006) II Yearbook of the International Law Commission ILC, Draft Articles on the Law of Treaties with Commentaries, reproduced in (1966) II Yearbook of the International Law Commission 187 ILC, Guiding Principles applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with Commentaries thereto, ILC Report, A/61/10 to be reproduced in (2006) II Yearbook of the International Law Commission ILC, Replies from Governments to the Questionnaire, Report of the SecretaryGeneral, UN Doc A/CN.4/511 (2000) ILC, Report of the Chairman of the Working Group, UN Doc A/CN.4/L.646 (2003) ILC, Report of the Working Group reproduced in (1996) II Yearbook of the International Law Commission (Part Two) 141, Annex II, Addendum 3 ILC, Report of the Working Group, UN Doc A/CN.4/L.543 (1997) ILC, Report of the Working Group, UN Doc A/CN.4/L.558 (1998) ILC, Report of the Working Group, UN Doc A/CN.4/L.588 (1999) ILC, Report of the Working Group, ILC Report 2000, UN Doc A/55/10 (2000) ILC, Report on the Work of its Fiftieth Session, General Assembly, Official Records, Fiftieth Session, Supplement No 10, A/53/10 (1998) ILC, Report on the Work of its Fifty-second Session, General Assembly, Official Records, Fifty-fifth Session, Supplement No 10, UN Doc. A/55/10 (2000) ILC, Report on its Work of the Fifty-fourth Session, General Assembly, Official Documents, UN Doc A/57/10 (2002) ILC, Summary Record of the 2524th Meeting, UN Doc A/CN.4/SR.2524 (1998) ILC, Summary Record of the 2525th Meeting, UN Doc A/CN.4/SR.2525 (1998) ILC, Summary Record of the 2526th Meeting, UN Doc A/CN.4/SR.2526 (1998)

  Bibliography 331 ILC, Summary Record of the 2527th Meeting, UN Doc A/CN.4/SR.2527 (1998) ILC, Summary Record of the 2543rd Meeting, UN Doc A/CN.4/SR.2543 (1998) ILC, Summary Record of the 2593rd Meeting, UN Doc A/CN.4/SR.2593 (1999) ILC, Summary Record of the 2594th Meeting, UN Doc A/CN.4/SR.2594 (1999) ILC, Summary Record of the 2595th Meeting, UN Doc A/CN.4/SR.2595 (1999) ILC, Summary Record of the 2603rd Meeting, UN Doc A/CN.4/SR.2603 (1999) ILC, Summary Record of the 2628th Meeting, UN Doc A/CN.4/SR.2628 (2000) ILC, Summary Record of the 2629th Meeting, UN Doc A/CN.4/SR.2629 (2000) ILC, Summary Record of the 2695th Meeting, UN Doc A/CN.4/SR.2695 (2001) ILC, Summary Record of the 2696th Meeting, UN Doc A/CN.4/SR.2696 (2001)

Index A acceptance:    as a unilateral act 22, 60, 61    law of treaties 68–9    no need for 41, 43, 47, 249    presumption of See consent, presumption of    tacit 78, 228, 302 acquiescence 22, 33 acta sunt servanda 305n addressees:    of promises 186    reaction’s effect on promises 189–91, 247–50 advantages of promises 6–10, 307–11 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons 165 aid, promise of 10–1 Anglo-Iranian Oil Company case 215 annexes as a means of interpretation 217, 222 arbitrariness as a bar on revocation 123, 193–4, 258–63, 74–5 Armed Activities on the Territory of the Congo case 169–72, 186, 192, 214–5 Austrian declaration of neutrality See neutrality autonomy See unilateral acts of states, unilateral B bilateral 40–1, 57, 228–31    mindset 81, 229, 299 bindingness, legal basis for promises’ 194–207 C capacity of states 24, 183, 185 Certain German Interests in Upper Polish Silesia case 86–7, 101, 231 circumstances:    fundamental change of 193, 246, 254, 259–60, 262, 275    importance of 222–7 coercion 25, 184, 238 collective state action See unilateral acts of states competence to bind a state legally 25, 170–1, 185–6, 234–7 condition, resolutory 257, 263, 275

consent:    presumption of 196–7    to revoke 254, 263 consideration 58, 230 corruption 25, 52, 221, 237–9 counter measures 38, 63, 78, 296, 305 D dangers, promises’ 300–7 debts, promise to cancel 10 declaration 20–2    negotiated 233    of independence See Kosovo See also interpretation defective will 245–7 drift-net fishing, promise to refrain from 10 E Eastern Greenland case 93–101, 102, 232–4, 302 economic zone, declarations establishing exclusive 63, 65, 77 empowering rule 300–7 erga omnes undertakings 122, 131, 158, 172, 214, 227, 274 error 25, 61, 184, 237–9 estoppel:    and promises—conceptional differences 283–6    concept 195–6, 261, 277–83    non-promises triggering 290–4    promises triggering 286–90 F Filleting of Fish within the Gulf of Saint Lawrence arbitration 155, 225 Fisheries Jurisdiction case 223 force, declaration resulting from 25, 237–9 form 27, 126, 129, 301 formalities, importance of 76–7, 226–7 fraud 25, 61, 184, 237–9 Free Zones case 87–8 Frontier Dispute case 156–61, 188, 213–4, 223–4, 288 G German approval case 148–51 German assurances before WW II 101–4, 231

334  Index good faith:    application in the Nuclear Tests cases 121, 126–8    basis of promises’ bindingness 201–7, 250, 252–4, 269–72, 295–8    general principle 178–9 greenhouse gases, promise to reduce 1 1 guarantees of non-repetition 167 Guiding Principles 3, 4n, 13–4, 183–94, 212–4, 295–8, 321–2 I Ihlen declaration See Eastern Greenland case immunity, promise to grant 15 intention to be legally bound 195, 198–201, 207–34 internal law 235–7 international community as a potential addressee 8, 145, 186, 214, 308, 310 International Law Commission See Guiding Principles international organizations, declarations of 44, 53, 65, 78–79, 182 interpretation, restrictive standard of 126, 131, 141, 155, 160–1, 172, 191, 212–14 interpretative declarations 63, 78 Ireland v. the United Kingdom 141–5, 218 Island of Lamu arbitration 82, 96 ius cogens 25, 187, 238, 245, 248, 250, 277, 297 J judicial proceedings, declarations made in the course of 63, 75–8, 224 K Kosovo, declaration of independence 10, 15 L LaGrand case 166–9, 225 law making:    judicial 182–3    treaties 180 law of treaties See Vienna Convention London Agreement 101 M manifestation of will to be bound See will Mavrommatis Jerusalem Concessions case 83–5, 86, 231 Military and Paramilitary Activities in and against Nicaragua case 151–5, 160, 165, 213, 261, 267–73 minorities, declarations on the protection of 88–93, 229 multilateral 40–1, 57

N neutrality, Austrian declaration of permanent 104–8, 229, 231 North Sea Continental Shelf cases 114–6, 224, 231, 280–1, 284 notice, reasonable 267–73, 275 notification 36–8 Nuclear Tests cases 12–4, 116–38, 174–5, 182, 224 O object:    lawfulness of 243–6    possibility of 243–6, 254 obligation for third states 187 offer:    law of treaties 68    as a unilateral act 59–62    or promise 68–9, 87–8, 153, 228–34 Optional Clause, declarations under the 63, 69–75, 268–72 P parliamentary debates 223 Petitpierre, assurance to the U.N. 145–7 preamble 217, 222 preparatory work 217–8 protest 1, 3, 20–2, 27, 33–4, 53, 64, 76, 283, 312 pseudo-promise 109–10, 145 publicity 20, 121, 123, 125, 146, 147, 187, 239–42 Q Questions relating to the Obligation to Prosecute or Extradite case 172–3, 225 quid pro quo 5, 7, 12, 57–8, 92, 98, 100, 101, 120–1, 125, 135, 197, 230–4, 249 R rareness, false presumption of promises’ 4–12 ratification 12, 56, 67, 75, 87, 93, 109, 115, 188, 224, 246–7, 303–4 recognition 1, 3, 20, 21, 22, 27, 29–33, 64, 76, 78, 94 – 7, 287 registration 109, 112, 130, 140, 226, 246–7, 296–7 rejection of promises by addressee(s) 126–8, 204–7, 247–50 reliance:    constructive 126–8    detrimental 195, 261, 281–5   in the Nuclear Tests cases 126–8    presumption of 201–7, 295

   protection of 126–8, 193–4, 200, 201–14, 216, 249–50, 253, 264, 282, 284, 289, 292 revocation of promises 193, 251–76 S security assurances, negative 161–6 silence 21, 63, 78, 184, 189, 194, 249–50 source:    of international law 176–83, 294–5    of international obligations 179–81 South West Africa cases 66, 109–10 state responsibility 39–40, 63, 78 state sovereignty 131, 195, 198–201 stipulation pour autrui 46n Suez Canal declaration 108–14, 174, 226, 231, 301 suspension of a treaty, act declaring 68 Switzerland:    assurance to the U.N. 145–7    declaration in relation to UN Sec. Res. 253 138–40 T Temple of Preah Vihear case 286, 293 termination of a treaty, act declaring 68 territorial sea, declarations establishing width of 65, 77 text as a means of interpretation 214–22, 296 time limit 257, 263 torture:    Britsh Pledge before the ECtHR 141–5    declarations on 15, 140–1 U unilateral acts of states:   categorization 26–8   See also recognition, protest, waiver and notification

Index 335    collective state action:      within treaties providing rights 45–9      joint declarations outside treaties 49–54      single subject of international law 41–4, 54–5    rules applicable to all 24–5    strict sense 21–3, 68–9   See also unilateral acts of states, autonomy Unilateral   autonomy:     overall concept 55–9      from another bi- or multilateral act 63–7      from another unilateral act 62–6     lex specialis 67–78    definition 40–1, 207 V Vienna Convention on the Law of Treaties: 80    analogy to provisions See relevant subject matter (eg competence, corruption, fraud, revocation…)    application to declarations under Art. 36 (2) ICJ Statute 71–5    as lex specialis 68–9    rights for third states 45–9 W waiver 1, 3, 21, 27, 34–6, 77, 151, 304 war:    declaration of 39    –material, declaration on the use of 147–8 will, manifestation of 4, 38–40, 187–9, 208–11, 296–7   See also intention to be legally bound wilful action, merely 38–9