Table Of Content

PROMISES OF STATES UNDER INTERNATIONAL LAW Textbooks on international law, dicta of the International Court of Justice and the International Law Commission’s ‘Guiding Principles applicable to unilateral declarations of states capable of creating legal obligations’ of 2006, all reflect the fact that in international law a state’s unilateral declaration can create a legally binding obligation. Unilateral declarations are common, as a look at the weekly headlines of any major newspaper will reveal. Many of the declarations made at the highest level are, of course, vaguely expressed and carry no tangible legal commitment. But others deliver a very clear message: for instance the US’s April 2010 declaration on its future use of nuclear weapons or Kosovo’s declaration of independ- ence and pledge to follow the Ahtisaari Plan, are two recent and promi- nent examples of unilateral declarations at the international level. The same sources, however, also reveal that while state promises are accepted as a means for states to create full blown legal commitments, the law governing such declarations is far from clear. This monograph fills a gap in international legal scholarship by raising and answering the question of the precise legal value of such pledges in the realm of public international law. After a brief introduction state promises in international law are defined and contrasted with other unilateral acts of states, and the history of promises in state practice and court decisions is delineated, together with scholarly opinion. The book then provides a detailed picture of the international legal framework governing promises of states, and ends with a brief assessment of the raison d’être for promises as a binding mechanism in international law, along with their advantages and disadvantages in comparison with the classical mechanism for assuming international obligations – the international treaty. This is currently the only book to present a comprehensive overview of the legal effect of promises by states in international law. Volume 37 in the series Studies in International Law Studies in International Law Recent titles in this series Human Dignity and the Foundations of International Law Patrick Capps Sovereignty and the Stateless Nation: Gibraltar in the Modern Legal Context Keith Azopardi The International Court of Justice and Self-Defence in International Law James A Green State Liability in Investment Treaty Arbitration: Global Constitutional and Administrative Law in the BIT Generation Santiago Montt Reappraising the Resort to Force: International Law, Jus ad Bellum and the War on Terror Lindsay Moir International Law and Dispute Settlement: New Problems and Techniques Edited by Duncan French, Matthew Saul and Nigel White The Democratic Legitimacy of International Law Steven Wheatley Reflections on the UN Declaration on the Rights of Indigenous Peoples Edited by Stephen Allen and Alexandra Xanthaki Contracting with Sovereignty: State Contracts and International Arbitration Ivar Alvik Multi-Sourced Equivalent Norms in International Law Edited by Yuval Shany and Tomer Broude The Distinction and Relationship between Jus ad Bellum and Jus in Bello Keiichiro Okimoto International Humanitarian Law and Terrorism Andrea Bianchi and Yasmin Naqvi Promises of States under International Law Christian Eckart For the complete list of titles in this series, see ‘Studies in International Law’ link at www.hartpub.co.uk/books/series.asp Promises of States under International Law Christian Eckart OXFORD AND PORTLAND, OREGON 2012 Published in the United Kingdom by Hart Publishing Ltd 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © Christian Eckart 2012 Christian Eckart has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval sys- tem, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing Ltd at the address above. British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84946-232-7 Typeset by Hope Services, Abingdon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall Foreword by Christian Tomuschat The principle of sovereignty cannot be equated with freedom from any legal constraints. Precisely because of their sovereign powers, states are capable of binding themselves by assuming international obligations. What the Permanent Court of International Justice said in its very first judgment in the Wimbledon case,1 applies not only to international treaties, but also to specific unilateral acts. The author of the present book is not the first one to discover this ground rule of contemporary international law, but he is indeed the first lawyer to explain its raison d’être in a fully persuasive fashion. When the International Court of Justice in 1974 declared the proceedings in the Nuclear Tests cases moot,2 thereby relying on statements of a number of high-ranking French governmental office holders that atmospheric nuclear tests in the Pacific Ocean would not be continued, the legally binding force of unilateral declarations was far from unequivocally established. Indeed, unilateral acts do not appear in the list of legal sources referred to in Article 38 of the ICJ Statute. Here and there, hints had surfaced in international jurisprudence that a state was bound to honour promises it had made vis-à-vis another state. But no cohesive doctrine had evolved from those bits and pieces. But the legal position remained opaque. Why should such a promise, made without a quid pro quo, produce a true legal obligation? Was it not extremely dangerous to hold a state accountable for purely verbal declarations lacking any formality? Could not states be trapped, particularly in cases where they attempted to show generosity towards their partners, but strictly on a political plane? Indeed, international relations are rife with unilateral acts. On a daily basis, governments have to explain their choices not only before their own peoples, but also before their foreign partners and before the international community. It is obvious that open- ness 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 threat- ened in its entirety if, on a regular basis, states had to defend themselves against unintended interpretations of their acts and utterances. 1 Series A 1, 17 August 1923. 2 Nuclear Tests (Australia v France) [1974] ICJ Rep 253, 272; Nuclear Tests (New Zealand v France) [1974] ICJ Rep 457, 478. 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 prob- lematique was more complex than originally presumed. In particular, the ILC and its rapporteur, Víctor Rodríguez Cedeño from Venezuela, real- ised 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 char- acteristic 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 clear- cut propositions. The reluctance to provide more than tentative answers is manifested already in the first Principle which states that declarations manifesting the will to be bound ‘may’ have the effect of creating legal obligations. As far as the crucial problem of revocation is concerned, the Guiding Principles confine themselves to setting forth that unilateral declarations may not be revoked ‘arbitrarily’ (Guiding Principle 10). On the whole, the reader cannot but feel that the legitimate needs of legal practice have not been fully satisfied. It may well be that at the present stage of legal development no better responses could be given. The codification process conducted by the ILC needs firm support from the solutions found in the actual transactions among nations. Hence, the outcome of the work of the ILC amounted to a call to continue the search for the appropriate legal regime of unilateral acts. The author of these lines wrote a short contribution as a first assessment of the Guiding Principles.3 Additionally, he encouraged Christian Eckart to proceed to a more deep-going study of the topic. The final result of this endeavour, the present book, has succeeded in clarifying the systemic foundations of the legal configuration of unilateral promises. Indeed, quite rightly, the author concluded that he should confine 3 ‘Unilateral Acts under International Law’ in Droits et culture. Mélanges en l’honneur du Doyen Yadh Ben Achour (Tunis, Centre de Publication Universitaire, 2008) 1487–507. Foreword vii his study to that specific sector instead of trying to embrace the field of unilateral acts in its entirety. The great achievement of the book is that it has been able to demonstrate the usefulness and legitimacy of the concept of promise in international law. International treaties have a much more precise profile. Long-standing experiences determine their scope and meaning. Unilateral promises, on the other hand, have the great advantage of allowing for more flexibility. States do not succumb to the rigidity which a treaty normally engenders by force of the proposition pacta sunt servanda. Yet, promises given with the intention to specify the direction of future conduct are able to create a considerable degree of legitimate confidence with their addressees. Thus, they are intimately connected to the principle of good faith, one of the fundamental axioms included in the Friendly Relations Declaration of the UN General Assembly of 19704 (Principle 7). Necessarily, therefore, promises cannot be revoked on the spur of the moment, abruptly and without any valid reasons. Following the precedent of Article 56(2) of the Vienna Convention on the Law of Treaties, and the judgment of the International Court of Justice in the Nicaragua case,5 the author suggests that gener- ally 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 suf- ficiently 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 inter- ested in the concept of unilateral promises in international law. 4 GA Resolution 2625 (XXV), 24 October 1970. 5 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) [1984] ICJ Rep 392, 420, para 63. Acknowledgements I would like to thank the Deutsche Forschungsgemeinschaft (DFG) and the Research Training Group on Multilevel Constitutionalism at the Humboldt University, Berlin for the fellowship which provided me with the financial means and necessary time to write this book. The Research Training Group’s first generation in the form of its founders, organisers, guests and especially its members deserve an additional thank you for their intellectual input, as well as for what turned out to be great com- pany during this otherwise solitary time of research and writing. I would like to express my gratitude to Professor Christian Tomuschat for having pointed me towards the International Law Commission’s struggle with Unilateral Acts of States and thereby also the topic of this book, as well as for his continuing intellectual support and encouragement. I finally wish to thank my family, especially my mother Ann, on whom I could always rely to discuss subtle nuances in the English language, as well as my wife Maria and daughter Emilia, whose zero tolerance for ‘glassy eyes’ after work kept me firmly grounded in everyday life.