Promises of States Under International Law
Promises of States Under International Law
Promises of States Under International Law
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 dtre
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--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, Vctor Rodrguez Cedeo 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. Mlanges en lhonneur du
Doyen Yadh Ben Achour (Tunis, Centre de Publication Universitaire, 2008) 1487507.
Forewordvii
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.
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 Groups 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 Commissions 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.
Contents
Foreword by Christian Tomuschat
v
Acknowledgements ix
Abbreviations xv
Table of Cases
xvii
Introduction 1
I
The Presumed Rareness of Promises
4
II A Legal Framework with Many Open Questions:
A First Look
12
III The Need for a Clear Assessment of the Applicable Law
14
IV Approaching the Topic
17
1
xii Contents
Contentsxiii
xiv Contents
VIII Promises and Estoppel
277
A Estoppel
277
B Promises and Estoppel: Distinct but Interacting Legal
Principles 283
(i) Two Distinct Legal Principles
283
(ii) Promises Triggering Estoppel
286
(iii) Non-Promises Triggering Estoppel?
290
(iv) Recapitulating Remarks on the Interplay of
Promise and Estoppel
294
IX Summarising the Legal Framework
294
4 Looking Ahead: A Promising Future? 299
I
Straitjacket vs Empowering Rule
300
II Unilateral Promises and Bilateral Commitments
307
A Why Allow for Legally Binding Promises at the
International Level?
307
B Circumventing or Complementing Treaties?
310
Concluding Remarks
312
Annex I
Annex II
314
321
Bibliography
Index
323
333
Abbreviations
DRC
ECHR
ECtHR
ICJ
ILC
ILO
IMT
NPT
OAS
OAU
PCIJ
UNCLOS
WTO
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.................................................... 1668, 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, 15660, 189, 209,
21314, 2224, 2489, 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, 713, 1515, 160, 165,
189, 212, 248, 256, 261, 272, 288
Table of Casesxix
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), 131012.................................................................. 901
League of Nations: Minorities in Lithuania, League of Nations Official
Journal, vol 4, (1923), 93233. ...................................................................... 90
Introduction
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) 61215; Antonio Cassese, International Law, 2nd edn (Oxford, 2004) 18485; Jean
Combacau and Serge Sur, Droit international public, 5th edn (2001) 9096; Georg Dahm, Jost
Delbrck and Rdiger Wolfrum, Vlkerrecht, 2nd edn (Berlin, 2002) vol I(3), 76473; Wolf
Heintschel von Heinegg, Einseitige Rechtsakte in Knut Ipsen (ed), Vlkerrecht, 5th edn
(Mnchen, 2004), s 18, 23440; Quoc Dinh Nguyen, Alain Pellet and Patrick Daillier, Droit
international public, 7th edn, (Paris 2002) 35966; Lasa Oppenheim, Robert Jennings and
Arthur Watts, International Law 9th edn (Harlow, 1992), vol 1, pts 24, 1187; Paul Reuter, Droit
international public, 6th edn (Paris, 1983) 16374; Georg Schwarzenberger, International Law as
Applied by International Courts and Tribunals, 3rd edn (London, 1957) vol I, 54861; Malcolm
N Shaw, International Law, 6th edn (Cambridge/New York, 2008) 12122; Alfred Verdross
and Bruno Simma, Universelles Vlkerrecht: Theorie und Praxis, 3rd edn (Berlin, 1984) 42431.
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. Mlanges en lhonneur 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 ILCs 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.
Introduction3
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, Vctor Rodrguez Cedeo, 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 topics 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 Commissions final product does, concentrate only on
declarations that are capable of creating legal obligations, while focusing on a states 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 Commissions 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 57, para 19. The Special Rapporteur
proposed a classification of unilateral acts in his Fourth Report, see Victor Rodriguez Cedeo,
Fourth Report on Unilateral Acts of States, UN Doc A/CN.4/519 (2001) 1022, paras 44100.
11
Victor Rodriguez Cedeo, Sixth Report on Unilateral Acts of States, UN Doc A/
CN.4/534 (2003).
12
Victor Rodriguez Cedeo, Seventh Report on Unilateral Acts of States, UN Doc A/
CN.4/542 (2004).
13
Victor Rodriguez Cedeo, 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 Visschers 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
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 Vlkerrecht (1976) 19 German YB International Law
35; Jean-Paul Jacqu, A propos de la promesse unilatrale in Melanges offerts a Paul Reuter
(1981) 32745; and Jean-Didier Sicault, Du caractre obligatoire des engagements unilatraux
en droit international public (1979) 83 Revue Gnrale 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 unilatraux en droit international public (Paris 1962) 111: Notre
thse est la suivante: les promesses purement unilatrales existent en droit international bien
quelles soient trs rares. Cette raret sexplique facilement tant donn quaucun Etat ne se
prte de bon gr faire des concessions spontanes et gratuites. See also Jean Charpentier,
Engagements unilatraux et engagements conventionnels: diffrences 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 Cedeo, First Report
on Unilateral Acts of States, UN Doc A/CN.4/486 (1998) para 141 and Cedeo, Fifth Report,
n 17 above, para 35. Critically already Sicault, Engagements unilatraux, n 20 above, 638,
for whom on sent encore ici lattraction, pour ne pas dire la fascination, exerce par laccord
de volonts.
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 promises 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 states 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 states 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 states 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
Egypts 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 10814.
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 promises beneficiary can, however,
choose to reject the promise made, see also pp 24750.
26
As Sicault remarks in discussing doctrines sometimes rather desperate efforts to construe a treaty relationshipout of separate unilateral declarations: On ignore ainsi dlibrment le fait quune partie peut logiquement estimer que la route vers des avantages
rciproques passe par des obligations univoques auxquelles elle accepte de souscrire en considration de lobjectif final, Sicault, Engagements unilatraux, 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 Gnrale 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 (200203) 81 Texas Law Review 2055, 205859, 207476.
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 partys 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 community32 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 Egypts 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--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 Vlkerrecht
The International Commmunity in Public International Law: English Summary (Mnchen, 2001)
especially 329 et seq and 44446.
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, 61516.
34
On the revocability of promises, one of the doctrinal core questions, see pp 25776.
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
organisations 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 Rapporteurs 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 Cedeo, Seventh Report, n 12 above, 12, note 36,
and (1999) 103 Revue Gnrale de Droit International Public 195. If a debt is immediately cancelled via a states 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 3436. An example of a waiver is the Spanish Head of Governments 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 Cedeo, Seventh Report, n
12 above, 12, note 36.
39
See, eg the following declaration which, amongst others, is provided in Cedeo, 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 Cedeo, Seventh Report, n 12 above, 1314, 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, Zurckhaltung zu Hause, FAZ, 13 February 2008, 6. During the G8 meeting in
Heiligendamm, Germany, in 2007, the worlds richest nations pledged to give US$60 bil-
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 states 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 actors 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 Americas greenhouse gas emissions relative to the size of our economy. My
administration is committed to cutting our Nations 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 Japans 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 Peoples 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) 6595.
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
The ILC has hence added some of its weight to the legal doctrine of
promises in international law by choosing to underline the ICJs 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 gnral 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, Problmes
dinterprtation judiciaire en droit international public (Paris, 1963) 18688.
49
For scholarly support see, eg Cassese, International Law, n 2 above, 185; Carbone,
Promise in International Law, n 20 above, 166; Charpentier, Engagements Unilatraux,
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 Jacqu, Elments pour une thorie
de lacte juridique en droit international public (Paris, 1972) 25557 and Jacqu, Promesse unilatrale, n 20 above, 327; Nguyen, Pellet and Daillier, Droit international public, n 2 above, 362;
Rodolfo De Nova, Die Neutralisation sterreichs (1958) 54 Die Friedenswarte 298, 299305;
Reuter, Droit international public, n 2 above, 164; Sicault, Engagements unilatraux, n 20
above, 634; Skubiszewski, Unilateral Acts, n 4 above, 224, 22829; Suy, Actes unilatraux, n 21
above, 109; Tomuschat, Unilateral Acts, n 4 above 1496; Visscher, Remarques, n 18 above,
esp 464; Gian Carlo Venturini, Attitudes et actes unilatraux des tats (1964) (II) 112 Recueil
des Cours 363, 396, 4005. For the Special Rapporteur, see especially Cedeo, Fourth Report,
n 10 above, 1819, paras 7984 and Cedeo, Seventh Report, n 12 above, 721. 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,
64142. 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 Courts wording (while even loosening it
in part)55 these uncertainties and questions have now been directly transplanted into the Commissions 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 Commissions 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
names 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 ICJs brief dicta, the Guiding Principles
for unilateral declarations have anything but closed the book on the topic.
Cedeo, First Report, n 21 above, 5, para 9 and 6, para 15.
See the analysis provided by Tomuschat, Unilateral Acts, n 4 above, 149293.
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 18394.
52
53
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 Rapporteurs Seventh Report, can be taken as a
new and fresh starting point for legal academia and research. Because notwithstanding the criticism of the Commissions 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 dont. 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 nations 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 16166.
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, 149697.
59
See the declaration made by New Zealand vis--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 Gnrale de Droit International Public 405.
60
For more see pp 14851.
61
See the declarations of the English representative before the European Court of Human
Rights, addressed at pp 14145.
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 Courts 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
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
1
Delimiting the Subject:
Promise as a Unilateral Act
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 Cedeo,
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 Groups 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 Cedeo, 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 Rapporteurs Fifth (largely recapitulative) Report in which it was presented to
the (partially) newly comprised Commission, see Victor Rodriguez Cedeo, Fifth Report
on Unilateral Acts of States, UN Doc A/CN.4/525 (2002) para 81. Although the Special
Rapporteurs 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 Cedeo, 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 Rapporteurs 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 Cedeo, 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.
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--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, Rechtsgeschfte, einseitige in Ignaz SeidlHohenveldern (ed), Lexikon des Rechts, Vlkerrecht, 3rd edn (Neuwied, 2001) 320. For protest not having to be explicit see Franz Pfluger, Die einseitigen Rechtsgeschfte im Vlkerrecht
(Zurich, 1936) 21112; Jacqu, Elments, 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 unilatraux en droit international public (Paris, 1962) 50: nimporte
quel acte peut contenir une protestation, pourvu que lintention du protestataire y soit clairement nonce. 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 protger ses droits en violant des autres?, ibid 52. But an act which clearly signals a states will
not to acquiesce and to protect its rights will hardly cease to do so when crossing the line of
legality. While the states 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 Rechtsgeschfte, n 11 above, 6970; Suy, Actes unilatraux, n 11
above, 15758. Jacqu, Elments 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
Mller and Thomas Cottier, Acquiescence in Rudolf Bernhardt (ed), Encyclopedia of Public
International Law (1992) vol I, 14; Pfluger, Einseitige Rechtsgeschfte, n 11 above, 197, Suy, Actes
unilatraux, n 11 above, 66; Charles de Visscher, Problmes dinterprtation judiciaire en droit
international public (Paris, 1963) 168.
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 Commissions outcome is
contradictory when it drops any reference to an acts 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 Commentarys 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 states legal relation to
one or numerous other subjects of international law.23
On autonomy see pp 5578.
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
a codification of unilateral acts can at least live with a statement indicating a states 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, 26768, 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 ICJs 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 23437.
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 declarants will
to no revocability without the addressees 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.
BRecognition
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 25176.
45
See especially Suy and Jacqu as cited n 11 above.
46
See, eg Visscher, Problmes dinterprtation, n 13 above, 19091.
47
Jos Maria Ruda, Recognition of States and Governments in M Bedjaoui (ed),
International Law: Achievements and Prospects (1991) 449, paras 12.
43
44
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
states (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 states 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) 1218. The position of, inter alia, Charles de Visscher, stressing recognitions 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, Problmes dinterprtation, n 13
above, 193, English translation taken from Ruda, Recognition, n 47 above, 455. See also Suy,
Actes unilatraux, n 11 above, 206.
48
49
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 unilatraux, n 30 above, 208, citing and relying on Georg
Schwarzenberger, The Fundamental Principles of International Law (1955) (I) 87 Recueil des
Cours de lAcadmie 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, 5960; Ti-Chiang Chen, The International
Law of Recognition with special reference to Practice in Great Britain and the United States (London,
1951) 13386; 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.
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--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 gentlemens 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 states 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 states 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 states declared will. The incorporation of an armed group into a states 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 states will which turns
a declaration into a binding commitment but the addressees (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
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 addressees 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--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 states 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 unilatraux en droit international public: propos dune thorie restrictive (1965) 92 Journal du droit international 41, 52; Sicault,
Engagements unilatraux, 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 4549.
Unilateral41
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
The unilateral act, on the other hand, is of legal effect without a second partys 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
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--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 unilatraux, n 11 above, 26, refers to this aspect as the lment formel. So do
others, see, eg Jacqu, Elments, n 1 above, 322.
93
Cedeo, First Report, n 3 above, para 133, emphasis added.
94
Ibid para 134, emphasis added.
95
See Dehaussy, Thorie restrictive, n 88 above, 52, who, relying on Eisenmanns courses
in (French) administrative law, was apparently amongst the first to claim la question de
savoir si un acte est plurilatral ou unilatral se ramne celle-ci: les normes (au sens le plus
large de ce terme) qudicte un acte juridique vont-elles rgir exclusivement les rapports
mutuels de ses auteurs ou, au contraire, des rapports juridiques concernant dautres sujets
de droit que son ou que ses auteurs?. Relying on Dehausy but being more precice, Sicault,
Engagements unilatraux, n 70 above, 640: En effet, ce nest pas le nombre des auteurs
Unilateral43
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 critre de lunilatralit dun acte, mais la situation des auteurs de lacte au
regard des normes poses . . . Les auteurs de la promesse se retrouveront tous du mme cot
de la ligne sparant dans le mcanisme normatif, le droit, de lobligation. And, for unilateral
promises, Jacqu: Pour nous, le caractre unilatral dun acte ne dcoule nullement du fait
quil soit imputable un seul sujet de droit international. Un acte unilatral est un acte htronomateur, cest--dire une manifestation de volont par laquelle un ou plusieurs sujets de
droit crent des normes applicables des tiers. J-P Jacqu, A propos de la promesse unilatrale in Melanges offerts a Paul Reuter (1981) 331. In his earlier book Jacqu seems to have
taken a different stand when he states that Le critre essentiel de lacte unilatral ne rside
pas dans le nombre de volonts qui participent son laboration, mais dans le nombre de
sujets de droit auquel il est imput. Lacte unilatral est un acte qui ne peut tre imput qua
un seul sujet de droit international, Jacqu, Elments, n 1 above, 325.
96
See especially Suy, Actes unilatraux, n 1 above, 28: Dans lacte juridique unilatral par
contre, nous nous trouvons en prsence dune seule manifestation de volont, cest--dire
dune manifestation de volont manant dun seul sujet de droit. Also Suy and Angelet,
Rechtsgeschfte, n 11 above, 319: die Willenserklrung nur eines Vlkerrechtssubjekts.
In the same vein, Venturini, Actes unilatraux, n 30 above, 412; also Nguyen, Pellet and
Daillier, Droit international public, n 30 above, 359, para 235: Par acte unilatral, on doit
entendre lacte imputable 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.
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 Rechtsgeschfte, n 11 above, 31.
102
See also Jacqu, Elments, n 1 above, 323.
103
See p 78.
99
100
Unilateral45
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--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--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--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 mme camp, Dehaussy, Thorie
restrictive, n 88 above, 52.
104
105
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
Unilateral47
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 partys 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, 22829, 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 3538, as the present writer would assume, or
whether Arts 3538 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 fr auslndisches ffentliches Recht und Vlkerrecht 653, 664.
The ILC hence pretends those who consider the right to be created automatically and without the need of the third states 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 problme des effets des traits lgard des Etats tiers inRecueil des Cours de lAcadmie de Droit
International de La Haye (Leiden, 1974) vol 143, 638: Sur le plan des principes, et malgr le
commentaire de la Commission qui y voyait un compromise, cet article tranche le dbat
entre ceux qui estiment que le droit nat du trait et ceux qui pensent quil nat du consentement, en faveur de ces derniers; Schweisfurth, Treaties and Third States, n 116 above,
66465: 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 lAcadmie 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.
Unilateral49
unless it is established that the third states 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.
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 dtaille de
lassimilation de lunicit du sujet lunicit de la manifestation de volont, on peut noter
que partir de lide de ct, de champ ou de partie, permet de prendre en compte les actes
collectifs ou collgiaux, Sicault, Engagements unilatraux, 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, Cedeo, First Report,
n 3 above, para 134.
Unilateral51
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--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 collectives 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 unilatraux, n 30 above, 412, note 9, my translation, emphasis added,
of the following original: Mme lmanation des actes unilatraux peut avoir lieu la suite
de lintervention de plusieurs sujets (actes collectifs); mais en pareil cas, les diffrentes
dclarations de volont ont, chacune, une valeur juridique propre et distincte, et ne sont
quextrinsquement runies, dans la mesure o elles se manifestent simultanment dans le
mme acte. See also Pfluger, Einseitige Rechtsgeschfte, 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 Groups 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.
Unilateral53
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, Vlkerrecht und Landesrecht (Leipzig, 1899) 5962.
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.
clearly
Unilateral55
Unilateral57
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
Unilateral59
Unilateral61
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 offerors 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 Rechtsgeschfte, n 11 above, 107.
157
See also Pfluger, ibid 105 et seq.
Unilateral63
act can subsequently create, alter or revoke a legal effect is said to be executed through that act; the acts 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 dclarations unilatrales de forme ne sont quautant dacceptations dune offre faite dans la
disposition conventionnelle qui les prvoit.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.
Cedeo, Second Report, n 3 above, para 62, emphasis added. See also Cedeo, 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 unilatraux, n 11 above, 31, 142 et seq; Cedeo, 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
Cedeo 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, Cedeo, Third Report, n 3 above, para 131, emphasis added. See also Cedeo, 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, Cedeo, Second Report,
n 3 above, para 9.
168
Cedeo, 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, Cedeo, 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
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
Unilateral65
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 Jacqu, 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 Jacqu in this regard is also to the point in the present context
(my translation provided in footnote):
Ce nest pas parce quun trait confre certaines comptences un organe international que tous les actes adopts par cet organe seront des actes conventionnels. Il ne faut pas confondre la convention dont lorgane tient sa comptence
avec les actes de cet organe. La volont unilatrale mise par celui-ci ne rencontre pas la volont des Etats parties la convention et ne forme pas avec elle
un accord de volont. Ce nest pas la convention qui donne naissance lacte
unilatral, elle en prvoit simplement lexistence. Lacte est cr par une manifestation de volont de lorgane comptent, il est unilatral.177
The same is true for a states 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 nations exclusive economic zone or territorial sea,
but a states 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
Jacqu, Elments, 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.
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) 677792, MN 9, where he criticises
Suys 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.
Unilateral67
Unilateral69
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 States 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 11638.
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 states 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.
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
Unilateral73
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 Courts
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 conues plus pour
viter une rencontre des volonts 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 states
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 states 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
lAcadmie 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.
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 ICJs
Ibid, emphasis added.
Tomuschat, Art. 36 ICJ Statute, n 193 above, 627, MN 64. On the revocability of promises see pp 25176.
202
See also Juan Jos 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, 11011.
203
See Tomuschat, Art. 36 ICJ Statute, n 193 above, MN 64.
204
Ibid MN 6469.
205
Considering declarations under the Optional Clause to be a special kind of promise
also Degan, Unilateral Act, n 30 above, 20921. See also Jacqu, Elments, n 1 above, 33335;
Charpentier, Engagements unilatraux, n 30 above, 368, para 4; Quintana, The Nicaragua
Case and the Denunciation of Declarations of Acceptance, n 202 above, 111.
200
201
Unilateral75
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--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 declarations 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
Unilateral77
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--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 organisations 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--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 Cedeo, First Report, n 3 above, 89, paras 3038, 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
tive organisations internal legal structure along with its (limited) competences need to be taken into account in order to assess a declarations
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
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 (15831645) nor Pufendorf (16321694), could a unilateral
assurance as such give rise to a binding commitment; an act of acceptance
especially 31719; and Charles de Visscher, Problmes dinterprtation judiciaire en droit international public (Paris, 1963) 18688.
5
See also Hugh Thirlway, Concepts, Principles, Rules and Analogies: International and
Municipal Legal Reasoning (2002) 294 Recueil des Cours de lAcadmie de Droit International
de La Haye 267, 34041; Wilfried Fiedler, Zur Verbindlichkeit einseitiger Versprechen im
Vlkerrecht (1976) 19 German YB International Law 35, 5051. 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 657661a)
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 unilatrale valant
convention, laccord des volonts aurait d se manifester par la promesse
expresse de lune des parties, jointe a lacceptation de lautre, et que cet accord
de volonts aurait d porter sur les lments essentiels qui constituent lobjet
de la convention.8
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 concessions 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.
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 Britains 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 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 3738, 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 7577.
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
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 Vlkerrecht: 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 gnral, 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
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, Jacqu, dissecting Suys 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
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 Estonia38 are said to
prove this point.
Yet, as Jacqu 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--vis the League. Understood in
this way, the Leagues subsequently adopted Resolution taking note of the
declaration would function as the offers 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 Minitciro 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 131012. For the declaration made by Iraq see League of Nations, Mandates Proposal
and Annex, 121216, 134250 and also Suy, Actes Unilatraux, n 26 above, 119.
37
Suy, Actes Unilatraux, n 26 above, 117.
38
League of Nations, Minorities in Estonia, 4 League of Nations Official Journal 1311.
39
Jacqu, Elments, n 34 above, 252.
40
The League of Nations international personality is thereby assumed; for more on this
question see Bardo Fabender, Die Vlkerrechtssubjektivitt internationaler Organisationen
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
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 Unilatraux, 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 lon pourrait trouver un guide virtuel pour interprter le trait, fait donc
dfaut, 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 srie 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.
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
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 Greenlands 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 Parties54 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 Denmarks 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.
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
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 sagit pas davantage ici dune dclaration unilatrale non accepte ou de
simples intentions exprimes, et la citation qui a t faite ce sujet dun extrait
du baron Lambermont est sans pertinence. Il sagit bien ici dun cas o, pour
reprendre la formule du baron Lambermont laccord des volonts sest manifest par la promesse expresse de lune des Parties jointe lacceptation de
lautre.58
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 Ministers dmarche, had made it clear that the question of
Norways 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 Ihlens 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
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 judgments 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, Denmarks concession in a notdirectly-dependent yet related manner merely underlined the importance
of the declaration at hand, thereby discarding Norways 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.
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 PCIJs jurisprudence on
the binding force of promises in international law. The editorial comment
written by James Garner in the judgments 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 PCIJs reliance on a promise as
creating binding obligations under international law.69 In a similar vein,
Verdross in his third edition of Vlkerrecht, 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 Jacqu 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 promises
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
7273: 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, 49495.
68
Ibid 496.
69
See, eg Suy, Actes Unilatraux, n 26 above, 109; Rousseau, Droit international public, vol I,
n 33 above, 423, para 341.
70
Alfred Verdross, Vlkerrecht, 3rd edn (Vienna, 1955) 133.
71
Jacqu, Elments, n 34 above, 255: La promesse du Ministre Ihlen semble bien tre une
promesse unilatrale.
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 Anzilottis
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
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 declarations
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 declarations 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-Generals position during his press conference, see Jacques Dehaussy,
La dclaration gyptienne 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 Unilatraux, n 26 above, 14041. 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--vis the same addressee. If the declarant state is already under an obligation vis-vis 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 declarants pledge
simply to comply with its existing obligations.
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 (bd));
(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 Egypts 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 Egypts
114
Egypt accepted the compulsory jurisdiction of the ICJ in relation to disputes that might
arise under this declarations paragraph on 18 July 1957, see UNGA Doc A/3576/Add.1
(= S/3818/Add.1).
115
See also Dehaussy, Dclaration gyptienne, n 108 above, 171, 17374; Mensbrugghe,
Canal de Suez, n 103 above, 299; also Degan, Unilateral Act, n 31 above, 19495, 20304.
116
See UN Security Council Doc S/3675.
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
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 Egypts 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
declarations content, but decided to refrain from any final judgment until
the regime had been tried out in practice. Nothing regarding the declarations 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, 1819, para 86 and
20, paras 9293; 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, 1516, paras 8485 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 4445.
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.
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
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 judgments 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 competent139 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 Islands, Niues and
the Tokelan Islands] 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
merited the ICJs 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 communiqu 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.
(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 communiqus issued by the Office of the President of the
Republic.147
147
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 judgments reasoning has been perceived by numerous commentators as flawed in one or the other way and depicted as the ICJs 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 26970, 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 franzsischen Kernwaffenversuche in Recht im Dienst des Friedens,
Festschrift fr Eberhard Menzel (1975) 34647.
150
151
152
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 Courts finding and Fitzmaurices 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
Ibid 619.
See Le Monde, 8 January 1975, as cited in Franck, Word Made Law, n 136 above, 619.
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 Courts 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
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 states 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 Frances 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 ICJs Nuclear Tests cases judgments at ibid 34555.
166
167
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-vis 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 courts 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 states 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 Courts 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 ICJs 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 Courts 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 states 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.
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 Courts majority opinion. Turning to the dissenting
judges on the bench, the opinion of Judges Onyeama, Dillard, Jimnez
de Archaga and Sir Humphrey Waldock offers (in their own words) a
vigorous dissent177 to the Courts 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 judgments finding, the case should not have been
dismissed:
Moreover, the Courts 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, Jimnez de Archaga 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 Frances 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 Courts further scrutiny and for it to reach the merits
of the case.
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 ICJs 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.
182
183
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 Courts 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, 44849.
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 Courts 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 franzsischen
Kernwaffenversuche, n 152 above, 340 et seq, does not question the doctrine as such but
criticises the Courts 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,
5964, both of whom, however, falsely discard all prior cases as providing any support for
the ICJs 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.
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 ICJs 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 declarations 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 countrys 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
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) 19899.
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
Although some states are said to have attributed some legal force to
the declarations made, the Resolution adopted, the travaux prparatoires,
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 memorandums 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 statements 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
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
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, 40004.
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 10708
and 111.
208
Verbatim report of the public hearings held on 7, 8 and 9 February 1977, ibid 316.
209
Ibid 317.
203
204
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 Courts 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).
The pledge of 5 August 1946 was well documented, as it had been made
in the form of an official press statement (communiqu official remis 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 promises 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 fr
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 donn aux Nations Unies lassurance quelles seraient au bnfice dun rgime au moins aussi favorable, tous gards, que celui accord toute autre
organisation internationale sur le territoire suisse. En dautres termes, les Nations Unies
peuvent demander dtre mises au bnfice de tout avantage, non prvu dans larrangement
provisoire, que nous accorderions une autre organisation internationale.
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 will226 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 vlkerrechtliche
Willenserklrung 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.
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 countrys 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 Nicaraguas 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, 8990, para 167.
232
Ibid 90, para 168.
233
Ibid 92, para 171.
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
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 ICJs majority
judgment is hence of primary significance in highlighting the restrictive
standard of interpretation which will be applied to a states 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 countrys 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, 38485, paras
24748.
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 autoris.
239
Ibid 265: Eu gard aux circonstances dans lesquelles elle a t faite, le Tribunal doit
considrer pareille dclaration comme engageant la France user de tous les moyens dont
elle dispose pour veiller, conjointement avec les autorits canadiennes, au respect de cette
dclaration.
Shortly after the Legal Sub-Commission had presented its report to the
Mediation Committee, the latter again gathered at Lom, where a final
communiqu 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 554,57074, paras 3440.
241
Ibid 571, para 36.
242
Ibid 572, para 37.
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 Lom,
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 Commissions
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 Malis 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
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.
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
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
binding260 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
19781982 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, sterreichische 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, sterreichische 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 1920.
266
See Bunn, U.S. Negative Security Assurances, n 251 above, 6.
258
259
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 resolutions 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) 1920.
270
S/1995/261, 3, Annex II.
271
S/1995/265, 2, para 2.
Indeed, according to Cedeo, the attitude of the authors and the positions of most States appear to reflect the political nature of these statements.276 Particularly if the ICJs 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 ICJs 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 Cedeo, 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, 5089, para 117, emphasis added.
LaGrand Case167
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 Germanys invitation to
confer upon Germany new or additional rights beyond those existing
under the Consular Convention.284
The ICJ responded in its judgment to Germanys 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.
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 Germanys 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 Courts finding that it met the
285
286
287
See ICJ, LaGrand, Merits, Judgment (2001), n 278 above, 511, para 120.
Ibid 51213, para 124.
See ibid 516, operational para (6).
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
made296 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
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 Habr to leave Senegal while the present case is
pending before the Court. Senegal has no intention to allow Mr Habr 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 Habr 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,
50106, paras 98109.
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 ICJs decisions in the Nuclear Tests cases as supported, illustrated and interpreted
in its subsequent holdings in the Military and Paramilitary Activities in and
305
3
The Law on Promises
If that is so, promises have no legal footing within any of the three principle sources listed in the Courts 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 PCIJs 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 ICJs 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 11638.
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) 22122, para 3.
12
Victor Rodriguez Cedeo, First Report on Unilateral Acts of States, UN Doc A/CN.4/486
(1998) 1214, especially paras 6971 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.
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 ICJs 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
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.
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 states
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 ILCs 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 addressees 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.
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 ILCs Guiding Principles 1 and 3 and
the indeterminacy included therein, the remaining principle on a unilateral declarations 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
ICJs jurisprudence, it does refer to a declarations 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
ICJs 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 declarations legal
effects is already covered by Guiding Principle 3, but also the wording of
Guiding Principle 7, sentence 2, thus point towards Tomuschats 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
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 Courts 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 ILCs 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 declarants 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.
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 states 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 states 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 promises 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 states 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 declarants 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 states 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.
The problem with Brierlys approach, which if still referred to is usually criticised and discarded,67 is quite obviously that it does not explain
a unilateral acts legal effect: if the unilateral act became binding only on
the basis of the addressees 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,
6061.
68
Rubin, Unilateral Declarations, n 24 above, 11.
65
66
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 declarations revocability, and grounding the initial obligation on a
states 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 acts
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: Mrignhac, Trait de Droit Public International (1906)
20 Archiv fr ffentliches Recht 302, 304, and my translation of the following original: Eine
Selbstbeschrnkung 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 Jellineks theory and criticism of it, see, eg Jens Kersten,
Georg Jellinek und die klassische Staatslehre (Tbingen, 2000) 409.
80
See, eg, also Alfred Verdross, Le fondement du droit international (1927) 16 Recueil des
Cours de lAcadmie de Droit International de La Haye 24, 26667, 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 unilatraux, n 73 above.
84
See n 74 above.
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 declarations bindingness separately from
its revocability, both subjects remain intimately related.86 With free revocability as the result of referring solely to a states 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 declarations bindingness on a
states 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 states freedom of action is restricted
and limited in a certain way by the declaration made.
With only the two ingredients of sovereignty and a states intent in
the mix, the result will therefore never be that of a binding obligation.
In order to explain a declarations 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 ICJs Nuclear Tests cases judgment stressed the importance of a
states 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 Vlkerrecht (1976) 19
German YB International Law 35, 58: Nicht zufllig 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 Mglichkeit 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 ICJs
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 Rapporteurs 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
The ILC has thus followed the ICJs 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 ones undertakings, especially
when executing the latter, to a states 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 addressees 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 Courts 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 unilatraux, n 70 above, 67879.
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 34750, 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 unilatraux, 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 unilatraux, n 70 above, 683: il ne sagit plus du devoir
de loyaut de lauteur de lengagement unilatral, mais de la confiance lgitime des destinataires dudit engagement, qui ne doit pas tre due.Formulations vary but reflect the
same understanding, see Rodolfo De Nova, Die Neutralisation sterreichs (1958) 54 Die
Friedenswarte 298, 304: Auf diese Weise legt [die Bekanntgabe des Versprechens] den Grund
zu Erwartungen, die an die Erklrung geknpft 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 fr Auslndisches ffentliches Recht und
Vlkerrecht (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
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 writers
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 unilatraux, n 70 above, 684. (It may be translated asThis confidence is, in effect, not the addressees actual confidence (reliance) but the confidence which
they have to be able to have in a promises binding character).
94
Kolb, La bonne foi, n 5 above, 335, emphasis added, and continuing: Cest peut-tre avec
ce critre quun quilibre aussi idal que possible entre libert et stabilit 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
98
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 mans head was a useful point of departure and
that we are hence not looking for subjective intentions, but for manifest intentions, see
ibid 6970. 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 declarants 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 23739.
113
To use the terminology of Koskenniemi, From Apology to Utopia, n 63 above.
114
See the analysis of the ICJs judgment rendered in the Nuclear Tests cases at p 123 et seq
and particularly the text to ch two, n 172.
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 states actual
state of mind when making the statement. While the law, by focusing on a
states 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 lintention nest quune condition
dexistence de lacte juridique unilatral, non le fondement de sa validit. Suy, Actes unilatraux, n 89 above, also speaks of la volont de promettre as being a condition. Both authors,
however, subsequently make it very clear that they are not actually considering a states
intention to be the condition of a promises bindingness but only the finding of a states 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, 33536; for Suy, Actes unilatraux, n 89
above, 149.
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 ICJs 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 Malis 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 Courts 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 ICJs jurisprudence than on the ILCs 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
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 states intent, its
absence will not, as such, be a hindrance to the consideration of a states
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 states 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 states 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 7577.
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 7778.
150
See pp 14041.
147
148
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 states 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
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
See p 93 et seq.
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 states 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 states 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 doctrines 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 commitments revocability, but it is likely to be of considerable impact
also at the national level, where often no parliamentary involvement is
required for a countrys executive to assume a new obligation by unilateral means.175 In interpreting a states 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
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 latters 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 beneficiarys 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 610.
180
See p 101 et seq.
181
For more see p 104 et seq.
182
See p 108 et seq.
See pp 18586.
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 Rapporteurs 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 ILCs 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 unilatraux, n 70 above, 65859.
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 States 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
Cedeo, Second Report on Unilateral Acts of States, Addendum, UN Doc A/CN/500/
Add.1 (1999) 9.
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 ILCs 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 states 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), Cedeo, Fifth Report, Addendum, n 134 above, 9, para
119 as corrected by Victor Rodriguez Cedeo, Fifth Report on Unilateral Acts of States,
Corrigendum, UN Doc A/CN.4/525/Add.1/Corr.2 (2002).
200
Guiding Principle 7, Cedeo, Ninth Report, n 135 above, 23.
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.
vitiate a states will were, however, adopted in the ILCs 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 ILCs 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 Commissions 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.
CPublicity
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 publicit
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
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
Nations 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 UNs 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
Jacqu, Promesse unilatrale, 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.
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 Articles 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 declarants actual intention to be legally bound.240 However, especially in light of the Articles
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 Addressees 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 5354. See also the criticism voiced by Dehaussy and
Mensbruegghe in respect of the Secretary Generals 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.
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 declarations 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
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
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 Cedeos 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 Rapporteurs
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 states declaration and addressing the undertakings 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
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 ICJs 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 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 ICJs 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 Jacqu 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 Jacqu, 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
harm the beneficiary.280 But although the ILC could not reach a consensus
which allowed it to go beyond the Courts 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 ILCs Commentary emphasises that the ICJ had not excluded a
states 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
See the clarification included in note 982 within the Commentary, ibid 380.
Ibid Commentary to Guiding Principle 10, 38081, para 3.
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 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
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 bonds
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 promises 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
Ibid 1497.
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 ICJs 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 acts bindingness. The Court, in these two passages and in the following, therefore does not establish the limits of the declarations 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 12021.
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
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--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.
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 undertakings revocation
cannot later be ignored. In this respect, the Courts ruling backs the ILCs
finding, according to which the limiting character of special terms governing a declarations 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--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--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.
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, 41920, para 63, emphasis added.
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 undertakings
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 declarants
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 26263.
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 promises 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 evolution326 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.
AEstoppel
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 unilatraux, n 70 above, 665.
For the Special Rapporteur see Cedeo, First Report, n 12 above, 2425, paras 12831;
Cedeo, Second Report, n 209 above, 34, paras 1114; Cedeo, Third Report, n 97 above,
6, paras 2327; Victor Rodriguez Cedeo, Seventh Report on Unilateral Acts of States, UN
Doc A/CN.4/542 (2004) 7677, paras 196201. 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, 4648; Gigante, Unilateral State
Acts, n 67 above, especially 347 et seq; Jacqu, Promesse unilatrale, n 97 above, 33539and
Jacqu, Elments, n 221 above, 256; Suy, Unilateral Acts as a Source, n 260 above, 64041.
326
Mller and Cottier, Estoppel, n 25 above, 116.
327
Brownlie, Principles, n 1 above, 644.
323
324
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 estoppels 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 states 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, 38385.
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, 36970 and Mller
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 Fitzmaurices 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 others 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
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 states 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, Lestoppel, 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.
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
Mller and Cottier, Estoppel, n 25 above, 118.
358
359
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 promises 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 estoppels primary raison
dtre 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 states 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 Begrndung der Verbindlichkeit einseitiger Versprechen aus Treu und
Glauben oder estoppel mu sich der dogmatischen Folgen und vor allem der praktischen
Auswirkungen bewusst sein. Insgesamt gesehen kann die Lokalisierung des vlkerrechtlichen Versprechens in der Einwirkungszone von estoppel nur eine ergnzende, flankierende Absicherung bewirken, nicht jedoch die Verbindlichkeit vlkerrechtlicher Versprechen
selbst umfassend belegen.
365
ICJ, Nuclear Tests (Australia v France) (1974), n 6 above, 268, para 46.
363
364
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 Malis Head of State had accepted the outcome of the
Mediation Commissions 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 addressees reliance has been said to have to be legitimate. The question, in other words,
controverse dans les pays de la common law (problme du promissory estoppel), ne semble
gure avoir retenue lattention au plan international.
372
See especially the authors mentioned in n 325 above; also Martin, Lestoppel, n 328
above, 258, note 7, in which Martin agrees with Jacqu, Elments, n 221 above, 256, that
promises might become irrevocable where they lead to an estoppel, as held also by Mller
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 ICJs passage on estoppel from the Military and Paramilitary Activities in and
against Nicaragua case in explaining a scenario that will hinder revocation, see pp 26061.
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.
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 Fitzmaurices 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 partys 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 declarants 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.
4
Looking Ahead: A Promising Future?
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.
See pp 24647.
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 states 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 Cedeo, ILC, 2524th Meeting, n 5 above, 35,
para 25; Victor Rodriguez Cedeo, Fifth Report on Unilateral Acts of States, Addendum 2,
UN Doc A/CN.4/525/Add.2 (2002) 26, 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, 149495.
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
Concluding Remarks
N THE WAKE of the International Law Commissions sixtieth anniversary in 2009, various publications have addressed the
Commissions merits and also some of its weaknesses.1 In the context
of this books topic, it will be recalled that the Commissions final output with respect to unilateral declarations capable of obliging states has
met with considerable criticism on the above pages. The Commissions
overall effort in this field has, nevertheless (and in particular thanks to
the ILCs 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 books 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, Beitrge zum auslndischen
ffentlichen Recht und Vlkerrecht, 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 Remarks313
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
ICJs 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 ICJs 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)
ANNEX I
25 May 1926
(judgment)
15 January 1930
(Adatcis
Report)
6 April 1935
(Courts
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-vis the Danish
Minister
Declarations
concerning
the protection
of minorities made
vis--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-vis 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.
Annex IPromises: 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
Significance
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
Germanys
conduct and
statements in
respect of the
continental
shelf
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 rgime 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 IPromises: 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.
Significance
27 June 2001
(judgment)
ICJ
Declarations
before the ICJ
LaGrand case
Negative
security
assurances
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 Germanys 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 IPromises: 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 dtre, 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 Habr 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 Habr 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
ANNEX II
The ILCs 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 Commissions 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.
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Index
A
acceptance:
as a unilateral act 22, 60, 61
law of treaties 689
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
reactions effect on promises 18991,
24750
advantages of promises 610, 30711
Advisory Opinion on the Legality of the Threat
or Use of Nuclear Weapons 165
aid, promise of 101
Anglo-Iranian Oil Company case 215
annexes as a means of interpretation 217,
222
arbitrariness as a bar on revocation 123,
1934, 25863, 745
Armed Activities on the Territory of the Congo
case 16972, 186, 192, 2145
Austrian declaration of neutrality See
neutrality
autonomy See unilateral acts of states,
unilateral
B
bilateral 401, 57, 22831
mindset 81, 229, 299
bindingness, legal basis for promises
194207
C
capacity of states 24, 183, 185
Certain German Interests in Upper Polish
Silesia case 867, 101, 231
circumstances:
fundamental change of 193, 246, 254,
25960, 262, 275
importance of 2227
coercion 25, 184, 238
collective state action See unilateral acts of
states
competence to bind a state legally 25,
1701, 1856, 2347
condition, resolutory 257, 263, 275
consent:
presumption of 1967
to revoke 254, 263
consideration 58, 230
corruption 25, 52, 221, 2379
counter measures 38, 63, 78, 296, 305
D
dangers, promises 3007
debts, promise to cancel 10
declaration 202
negotiated 233
of independence See Kosovo
See also interpretation
defective will 2457
drift-net fishing, promise to refrain from 10
E
Eastern Greenland case 93101, 102, 2324,
302
economic zone, declarations establishing
exclusive 63, 65, 77
empowering rule 3007
erga omnes undertakings 122, 131, 158, 172,
214, 227, 274
error 25, 61, 184, 2379
estoppel:
and promisesconceptional differences
2836
concept 1956, 261, 27783
non-promises triggering 2904
promises triggering 28690
F
Filleting of Fish within the Gulf of Saint
Lawrence arbitration 155, 225
Fisheries Jurisdiction case 223
force, declaration resulting from 25,
2379
form 27, 126, 129, 301
formalities, importance of 767, 2267
fraud 25, 61, 184, 2379
Free Zones case 878
Frontier Dispute case 15661, 188, 2134,
2234, 288
G
German approval case 14851
German assurances before WW II 1014,
231
334 Index
good faith:
application in the Nuclear Tests cases 121,
1268
basis of promises bindingness 2017,
250, 2524, 26972, 2958
general principle 1789
greenhouse gases, promise to reduce 1
1
guarantees of non-repetition 167
Guiding Principles 3, 4n, 134, 18394,
2124, 2958, 3212
I
Ihlen declaration See Eastern Greenland case
immunity, promise to grant 15
intention to be legally bound 195, 198201,
20734
internal law 2357
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, 7879, 182
interpretation, restrictive standard of 126,
131, 141, 155, 1601, 172, 191,
21214
interpretative declarations 63, 78
Ireland v. the United Kingdom 1415, 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, 758, 224
K
Kosovo, declaration of independence 10, 15
L
LaGrand case 1669, 225
law making:
judicial 1823
treaties 180
law of treaties See Vienna Convention
London Agreement 101
M
manifestation of will to be bound See will
Mavrommatis Jerusalem Concessions case
835, 86, 231
Military and Paramilitary Activities in and
against Nicaragua case 1515, 160,
165, 213, 261, 26773
minorities, declarations on the protection of
8893, 229
multilateral 401, 57
N
neutrality, Austrian declaration of permanent 1048, 229, 231
North Sea Continental Shelf cases 1146,
224, 231, 2801, 284
notice, reasonable 26773, 275
notification 368
Nuclear Tests cases 124, 11638, 1745,
182, 224
O
object:
lawfulness of 2436
possibility of 2436, 254
obligation for third states 187
offer:
law of treaties 68
as a unilateral act 5962
or promise 689, 878, 153, 22834
Optional Clause, declarations under
the 63, 6975, 26872
P
parliamentary debates 223
Petitpierre, assurance to the U.N.
1457
preamble 217, 222
preparatory work 2178
protest 1, 3, 202, 27, 334, 53, 64, 76,
283, 312
pseudo-promise 10910, 145
publicity 20, 121, 123, 125, 146, 147, 187,
23942
Q
Questions relating to the Obligation to
Prosecute or Extradite case 1723,
225
quid pro quo 5, 7, 12, 578, 92, 98, 100,
101, 1201, 125, 135, 197, 2304,
249
R
rareness, false presumption of promises
412
ratification 12, 56, 67, 75, 87, 93, 109, 115,
188, 224, 2467, 3034
recognition 1, 3, 20, 21, 22, 27, 2933, 64,
76, 78, 94 7, 287
registration 109, 112, 130, 140, 226, 2467,
2967
rejection of promises by addressee(s)
1268, 2047, 24750
reliance:
constructive 1268
detrimental 195, 261, 2815
in the Nuclear Tests cases 1268
presumption of 2017, 295
protection of 1268, 1934, 200, 20114,
216, 24950, 253, 264, 282, 284,
289, 292
revocation of promises 193, 25176
S
security assurances, negative 1616
silence 21, 63, 78, 184, 189, 194, 24950
source:
of international law 17683, 2945
of international obligations 17981
South West Africa cases 66, 10910
state responsibility 3940, 63, 78
state sovereignty 131, 195, 198201
stipulation pour autrui 46n
Suez Canal declaration 10814, 174, 226,
231, 301
suspension of a treaty, act declaring 68
Switzerland:
assurance to the U.N. 1457
declaration in relation to UN Sec. Res. 253
13840
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 21422, 296
time limit 257, 263
torture:
Britsh Pledge before the ECtHR 1415
declarations on 15, 1401
U
unilateral acts of states:
categorization 268
See also recognition, protest, waiver and
notification
Index335
collective state action:
within treaties providing rights 459
joint declarations outside treaties
4954
single subject of international law
414, 545
rules applicable to all 245
strict sense 213, 689
See also unilateral acts of states, autonomy
Unilateral
autonomy:
overall concept 559
from another bi- or multilateral act
637
from another unilateral act 626
lex specialis 6778
definition 401, 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 715
as lex specialis 689
rights for third states 459
W
waiver 1, 3, 21, 27, 346, 77, 151, 304
war:
declaration of 39
material, declaration on the use of
1478
will, manifestation of 4, 3840, 1879,
20811, 2967
See also intention to be legally bound
wilful action, merely 389