PROMISES OF STATES UNDER INTERNATIONAL LAW

Textbooks on international law, dicta of the International Court of Justice and the International Law Commissions Guiding Principles applicable to unilateral declarations of states capable of creating legal obligations of 2006, all reflect the fact that in international law a states unilateral decla-ration 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 USs April 2010 declaration on its future use of nuclear weapons or Kosovos 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 inter-national legal framework governing promises of states, and ends with a brief assessment of the raison dtre for promises as a binding mechanism in international law, along with their advantages and disadvantages in comparison with the classical mechanism for assuming international obli-gations 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.

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Promises of States under International Law

Christian Eckart

OXFORD AND PORTLAND, OREGON2012

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Christian Eckart 2012

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Foreword

by Christian Tomuschat

The principle of sovereignty cannot be equated with freedom from any legal constraints. Precisely because of their sovereign powers, states are capable of binding themselves by assuming international obligations. What the Permanent Court of International Justice said in its very first judgment in the Wimbledon case,1 applies not only to international trea-ties, but also to specific unilateral acts. The author of the present book is not the first one to discover this ground rule of contemporary inter-national 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 decla-rations 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, Vctor Rodrguez Cedeo 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 dec-larations 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 assess-ment 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 prom-ises. 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.

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, prom-ises 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 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 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 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 vAcknowledgements ixAbbreviations xvTable 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 Delimiting the Subject: Promise as a Unilateral Act 18 I Drawing from the Definition of Unilateral Acts 18 II Distinguishing Promises from Other Classes of Unilateral

Acts 23 A Promise 28 B Recognition 29 C Protest 33 D Waiver/Renunciation 34 E A Note on Notification 36

III A Manifestation of Will to Create a Legal Obligation 38 IV Unilateral 40 A Collective State Action 41 (i) Treaties Providing for Rights for Third States 45 (ii) Joint Declarations Outside Treaties 49 (iii) Concluding Remarks on Joint State Action 54 B The Autonomy Debate 55 (i) Independence of Another Unilateral Act? 59 (ii) Independence of Another Multilateral or

Bilateral Act? 62 (iii) Its Really All about Lex Specialis 67 (a) Acts Governed by the Law of Treaties 68 (b) Declarations Made Pursuant to ICJ Statute,

Article 36(2) 69

xii Contents

(c) Declarations Made During Judicial Proceedings 75

(d) A Brief Note on Other Acts Usually Excluded 77 V Promises of States Only 78

2 A History of Promises 80 I Important Cases and State Practice 81 A Mavrommatis Jerusalem Concessions Case 83 B Certain German Interests in Upper Polish Silesia Case 85 C Free Zones Case 87 D Declarations Concerning the Protection of Minorities 88 E Legal Status of Eastern Greenland Case 93 F Assurances Leading up to the Second World War 101 G Austrias Permanent Neutrality 104 H Egypts Declaration on the Suez Canal 108 I North Sea Continental Shelf Cases 114 J Nuclear Tests Cases 116 (i) Facts of the Case and the Judgment Delivered

by the Court 117 (ii) Analysis and Critical Assessment 123 (iii) The Separate and Dissenting Opinions 132 K Swiss Declaration in Relation to Security Council

Resolution 253 138 L Declarations on Torture and Other Inhumane Treatment 140 M British Pledge on the Five Techniques before the

ECtHR 141 N Swiss Petitpierre Assurance to the United Nations 145 O Declaration on the Use of War Material Exported

out of Austria 147 P German Approval Case before the German

Constitutional Court 148 Q Military and Paramilitary Activities in and against

Nicaragua Case 151 R Filleting of Fish in the Gulf of St Lawrence Arbitration 155 S Frontier Dispute Between Burkina Faso and Mali Case 156 T Negative Security Assurances 161 U LaGrand Case 166 V Armed Activities on the Territory of the Congo Case 169 W Questions Relating to the Obligation to Prosecute or

Extradite Case 172 II Concluding Remarks on the History of Promises 174

Contents xiii

3 The Law on Promises 176 I Promises and the Sources of International Law 176 II The ILCs Guiding Principles 183 III Legal Basis for the Bindingness of Unilateral Promises 194 A Presumed Consent 196 B State Sovereignty and Intent 198 C Good Faith and Presumed Reliance 201 IV On the Intention to be Legally Bound 207 A The States Manifestation of Will 208 B Ascertaining a Legal Intent to be Bound 211 (i) Restrictive Interpretation 212 (ii) Interpreting a Declarations Text 214 (iii) Clear and Specific Wording 218 (iv) Supporting Circumstances 222 (v) Concluding Remarks on Interpretation 227 C Distinguishing Promises and Offers 228 V Further Requirements 234 A Competent Representative 234 B No Defective Will 237 C Publicity 239 D A Lawful (and Possible?) Object 243 E Registration? 246 F Impact of the Addressees Reaction 247 G Summarising the Requirements for a Legally Binding

Promise 250 VI The Revocability of Promises 251 A Necessary Limitations 251 B Between the Vienna Convention and a More Flexible

Approach 253 C Guiding Principle 10: Providing an Answer (Only) for

Specific Circumstances 258 D Specific Circumstances Aside: Determining a

Ground Rule on Revocation 263 (i) Towards a More Flexible Approach 263 (ii) Reasonable Notice Requirement 267 E Consolidating the Approach: A Ground Rule from

which to Deviate in Specific Circumstances 273 F Concluding Remarks on the Revocability of Promises 275 VII Modifying Promises 276

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 314Annex II 321

Bibliography 323Index 333

Abbreviations

DRC Democratic Republic of the CongoECHR European Convention on Human RightsECtHR European Court of Human RightsICJ International Court of JusticeILC International Law CommissionILO International Labour OrganizationIMT International Military TribunalNPT Non-Proliferation TreatyOAS Organization of American StatesOAU Organisation of African UnityPCIJ Permanent Court of International JusticeUNCLOS UN Convention on the Law of the SeaWTO World Trade Organization

Table of Cases

(sorted chronologically by date of decision):

ICJ, Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Order of 28 May 2009. ............................... 173

, Case concerning the application of the convention on the prevention and punishment of the crime of genocide (Croatia v Serbia), Preliminary Objections, Judgment of 18 November 2008. ................................................. 82

, Application of the convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v Serbia & Montenegro), Merits, Judgment of 26 February 2007. ...................................................................... 12

, Armed Activities on the Territory of the Congo case (Democratic Republic of the Congo v Rwanda), New application: 2002, Jurisdiction and Admissibility, Judgment of 3 February 2006. ......................... 25, 170, 186

, LaGrand (Germany v United States of America), Judgment of 27 June 2001, ICJ Reports 2001, 466. .................................................. 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, 288Arbitration 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

xviii Table of Cases

, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Dissenting Opinion Judge Schwebel, ICJ Reports 1986, 259. ..................................................... 155

German Federal Constitutional Court (BVerfG), Cruise Missiles Deployment (German Approval) Case, Judgment of 18 December 1984, ILR 1984, p. 365 (=BVerfGE 68, 1). ....................................................... 1489

ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine Area, (Canada v USA), Judgment of 12 October 1984, ICJ Reports 1984, p. 246. ..................................................................................................... 22, 280

, Military and Paramilitary Activities in and against Nicaragua case (Nicaragua v United States), Jurisdiction and Admissibility, Judgment of 26 November 1984, ICJ Reports 1984, 392. .................. 70, 261, 268, 271, 281

, Aegean Sea Continental Shelf case (Greece v Turkey), Judgment of 19 December 1978, ICJ Reports 1978, 3. .................................................... 223

ECHR, Case of The Republic of Ireland v The United Kingdom, (Application no 5310/71), Judgment of 18 January 1978, Series A, No 25, 175. ........ 1412

, Case of The Republic of Ireland v. The United Kingdom, Series B: Pleadings, Oral Arguments and Documents 1980. ........................... 1423

, Case of Ireland against the United Kingdom, Series B: Pleadings, Oral Arguments and Documents 1981. ................................................... 143

ICJ Nuclear Tests case, (Australia v France), Judgment of 20 December 1974, ICJ Reports 1974, 253. ..................................v, 12, 25, 69, 11718, 120,

122, 130, 1789, 186, 188, 203, 2089, 212, 218, 220, 2245, 239, 249, 2845

, Nuclear Tests case, (Australia v France), Separate Opinion of Judge Forster ICJ Reports 1974, 275. .................................................................... 132

, Nuclear Tests case, (Australia v France), Separate Opinion of Judge Ignacio-Pinto, ICJ Reports 1974, 308. ........................................................ 133

, Nuclear Tests case, (Australia v France), Joint Dissenting Opinion of Judges Onyeama, Dillard, Jimnez de Archaga and Sir Humphrey Waldock, ICJ Reports 1974, 312.............................................................. 1334

, Nuclear Tests case, (Australia v France), Dissenting Opinion of Judge De Castro, ICJ Reports 1974, 372. ...................................................... 118, 134

, Nuclear Tests case, (Australia v France), Dissenting Opinion of Judge Sir Garfield Barwick, ICJ Reports 1974, 391. ............................................. 137

, Nuclear Tests case, (New Zealand v France), Judgment of 20 December 1974, ICJ Reports 1974, 457. .............................................................v, 12, 117

, Nuclear Tests case (Australia v France), Interim Protection, Order of 22 June 1973, ICJ Reports 1973 ................................................................... 99.

, Nuclear Tests case (New Zealand v France), Interim Protection, Order of 22 June 1973, ICJ Reports 1973 ............................................................. 135.

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Reports 1971, 16. ..... 110

Table of Cases xix

ICJ, North Sea Continental Shelf cases, Judgment of 20 February 1969, ICJ Reports 1969, 3. .................................................................... 114, 224, 280

, North Sea Continental Shelf cases, Separate Opinion of Judge Ammoun, ICJ Reports 1969, 101. ............................................................... 115

, Case concerning the Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment of 24 July 1964, ICJ Reports 1964, 6........................................................................................................... 280

, Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Merits, Judgment of 15 June 1962, ICJ Reports 1962, 6. ................. 212, 280

, South West Africa cases (Ethiopia and Liberia v South Africa), Preliminary Objections, Judgment, 1962, 319. ............................................ 110

, South West Africa Cases, (Ethiopia and Liberia v South Africa), Preliminary Objections, Separate Opinion of Judge Jessup, ICJ Reports 1962, 387......................................................................................................... 58

, South West Africa cases (Ethiopia and Liberia v South Africa), Preliminary Objections, Joint Dissenting Opinion of Judges Spender and Fitzmaurice, ICJ Reports 1962, 465. ............................................................. 66

, Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Preliminary Objections, Judgment of 26 May 1961, ICJ Reports 1961, 17. 25

, Case concerning the Temple of Preah Vihear (Cambodia v Thailand), Preliminary Objections, Separate Opinion of Sir Gerald Fitzmaurice, ICJ Reports 1961, 52. ..................................................................... 2789, 287, 293

, Case concerning right of passage over Indian territory, (Portugal v India), Preliminary Objections, Judgment of 26 November 1957, ICJ Reports 1957, 125. ......................................................................................... 72

, Anglo-Iranian Oil Co case, (United Kingdom v Iran), Preliminary Objections, Judgment of 22 July 1952, ICJ Reports 1952, 93. ........ 71, 21516

, Fisheries Case (United Kingdom v Norway), Judgment of 18 December 1951, ICJ Reports 1951, 116. .................................................................. 22, 65

The International Military Tribunal, Trial of the Major War Criminals Before the International Mitlitary Tribunal, 1947. .................................. 1023

PCIJ, Minority Schools in Albania, Advisory Opinion of 6 April 1935, Series A/B, No 64, 1935, 4. ............................................................... 89, 912

, Legal Status of Eastern Greenland case (Denmark v. Norway), Judgment of 5 April 1933, Series A/B 53, 22. ...................... 93102, 154, 232

, Legal Status of Eastern Greenland case (Denmark v Norway), Dissenting Opinion of Judge Anzilotti, Series A/B 53, 76. ................... 94, 98

, Free Zones of Upper Savoy and the District of Gex case (France v Switzerland), Judgment of 7 June 1932, Series A/B 46, 96. ........................ 87

, Serbian Loans case, Judgment of 12 July 1929, Series A 20, 4. ............. 282, Certain German Interests in Upper Polish Silesia (Germany v Poland),

Judgment of 25 May 1926, Series A 7, 2. .......................... 857, 101, 225, 231, The Mavrommatis Jerusalem Concessions case (Greece v Great Britain),

Judgment of 26 March 1925, Series A 5, 6. ....................... 837, 100, 225, 231

xx Table of Cases

, Case of the S.S. Wimbledon, Judgment of 17 August 1923, Series A 1, 15. .......................................................................................... v, 199

Arbiter Baron Lambermont, Arbitration between Germany and the United Kingdom relating to Lamu Island, Decision of 17 August 1889, Reports of International Arbitral Awards 1889, 237. .................................................. 82

General Assembly: Resolution 61/34, A/RES/61/34, (2006). (Referred to as: Resolution 61/34) ................................................................................. 3

General Assembly: Resolution 51/160, A/RES/51/160, (1997). (Referred to as: Resolution 51/160) ............................................................. 2

League of Nations: Mandates Proposal (3081) and Annex (1373), (1932). (Referred to as: Mandates Proposal & Annex) ......................................... 90

League of Nations: Minorities in Estonia, League of Nations Official Journal, vol 4, (1923), 131012. ................................................................ 901

League of Nations: Minorities in Lithuania, League of Nations Official Journal, vol 4, (1923), 93233. ..................................................................... 90

Introduction

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

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 com-monly 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 Fortheclassificationofunilateralactsseep23et 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 Assemblyasonesuitableandappropriate forcodificationandprogres-sive 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:

thesignificanceofsuchunilateralactsisconstantlygrowingasaresultoftherapid 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 pro-gress over the years to come. It turned out to be extremelydifficult toeven 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 major-ity to develop draft articles9 divided into a general part, including basic rules such as, inter alia, on the competence to formulate binding unilat-

5 The ILC is a subcommittee of the UN General Assembly and entrusted with the promo-tionoftheprogressivedevelopmentofinternationallawanditscodification.Inthiscapacitythe 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) ofitsStatute),andareelectedforafive-yearperiod,aquinquennium.Formoreseewww.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 pro-posed various draft articles throughout his nine reports, hoped to develop genuine draft articles for the subject.

Introduction 3

eral acts or the lack of formal requirements, and a special part, comprised of four different sections, addressing acts falling into the categories of protest, waiver, promise and recognition.10 The reports of the appointed Special Rapporteur, Vctor Rodrguez Cedeo, included various propos-als 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 consid-eredanydraftarticlesforpartIIoftheCode,theonedealingwithspecificunilateral acts. Instead, after 10 years, nine reports, many working groups andcontinuousdebatesonthetopicscodifiability,theILCfinallydecidedto 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 GeneralAssemblytooknoteofthefinaloutcomeandexpresseditsappre-ciation 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 unilat-eral state conduct, the approach taken here is far narrower. This study will, just like theCommissionsfinalproductdoes,concentrateonlyondeclarations that are capable of creating legal obligations, while focus-ing 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 cat-egory 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 proposedaclassificationofunilateralactsinhisFourthReport,seeVictorRodriguezCedeo,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.Thefinaloutcomedealsonlywithdeclarations,notwithacts,andonlywiththosewhichcanbesaidtocreatelegalobligations.Articlesonspecifictypesof 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 identifieditasone,ifnotthemostimportantcategoryofunilateralactsthe 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

A promise is commonly understood to be a unilateral manifestation of a states will through which it commits itself in a legally obliging manner vis--vis one or several addressees to act or refrain from acting in a particular

16 Whether the Guiding Principles dealing with declarations that are capable of creat-ing legal obligations are applicable to unilateral acts other than promises is far from clear. Tomuschat, Unilateral Acts, n 4 above, 1497 considers merely protest to be excluded as protests clearly do not create any legal obligation. Any act of protest is indeed squarely out-side the scope of the Guiding Principles (see also pp 3334), despite the commentarys note 954 which refers to a case that involves a protest in support of one of the Guiding Principles. Recognition is arguably a declaration capable of creating legal obligations, although it is more adequately in our view described in terms of opposability of an admitted fact. Also, it is usually said to be irrevocable unless the very object of recognition dissolves. Guiding Principle 10, however, merely prohibits arbitrary revocation for declarations within the Principles reach and it is rather unlikely that the ILC intended to allow states more leeway in this area. Tomuschat, Unilateral Acts, n 4 above, 1499, hence notes: It may well be that the ILC considered declarations of recognition as not coming within the scope of Principle 1, which, in the view of the present writer would be an erroneous interference. There must be even stronger doubts whether a waiver may adequately be described as creating legal obligations, see pp 3436. A waiver, also, and as a consequence of it having extinguished the right waived, is considered to be non-revocable and not merely non-arbitrarily revocable as the Guiding Principles would indicate if held to be applicable. See also Cassese, International Law, n 2 above, 185, for whom: Promise is the only unilateral transaction giving rise to international obligations proper, that is, establishing a new rule binding the promising State towards one or more States; similarly Hafner, ILC, Summary Record of the 2595th Meeting, UNDocA/CN.4/SR.2595 (1999) para 32, where he pointed out that a definitionwhichreferred to the intention of acquiring legal obligations implied that only promises will be taken into account. For more on the different categories of unilateral acts, see p 23 et seq.

17 cf, eg Simma, ILC, 2525th meeting, n 9 above, para 8: The most interesting problem, however, concerned the binding force, for the States from which they emanated, of unilateral promises a term which . . . was to be preferred to unilateral declaration, which was too formal and so capable of encompassing very different acts. See also the largely recapitula-tive Fifth Report in which the Special Rapporteur mentioned that the ILC had noted that the workofcodificationandprogressivedevelopmentmayfocus,atleastinitially,onpromises,Victor Rodriguez Cedeo, Fifth Report on Unilateral Acts of States, UN Doc A/CN.4/525 (2002) 5, para 14.

18 My translation of Paul de Visscher, Remarques sur lvolution de la jurisprudence de la Cour Internationale de Justice relative au fondement obligatoire des certains actes unila-traux in Essays in Honour of Manfred Lachs (The Hague, Boston, 1984) 469: il faut souhaiter que la doctrine reprenne ltude de la promesse unilatrale la lumire des exigences de la bonne foi, qui ne sont ni celles de la rgle pacta sunt servanda ni celles du principe de lestoppel.

The Presumed Rareness of Promises 5

way in the future. It requires no acceptance or any reaction from the side of the addressee(s) to become effective. While promises have been studied before, no English monograph19 focuses exclusively on this topic and even most articles do not put their whole thrust behind analysing promises of states but address them only when dealing with unilateral acts in gener-al.20 In light of the potentially far-reaching consequences of such a uni-laterally 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 when-ever 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 estab-lishameetingofmindswhichscarcelyreflectedtheactualcommunica-tion that took place between the parties.

While promises may very well be less frequent than commitments under-gone through treaties, it is striking that the diagnosis of state promises actu-ally 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 receiv-ing anything in return.21 Jumping to this a priori conclusion is, however,

19 NeitherdidwefindamonographonpromisesininternationallawintheGermanorFrench language. In Italian there is Sergio M Carbone, Promessa e affidamento nel diritto inter-nazionale (Milano, 1967).

20 Exceptions are especially Sergio M Carbone, Promise in International Law: A ConfirmationofitsBindingForce(1975)1Italian 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.22Oneof promises specific and sometimespossibly advantageous fea-

tures 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 cre-ated 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 thebenefitsoreadilypromisedeven if thecommitmentmademight not go as far as its addressee(s) initially demanded.24 This strat-egy 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 estab-lish 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.

The Presumed Rareness of Promises 7

in fact quickly alter the legal landscape and thereby create the legal secu-rity 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, con-sidering 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 ask-ing, 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 publicopinion canarousenotonly considerablepressurebut influenceconsumers,companiesandstatescashflow,statesmightfeelastrongincentive simply to look good in the international arena;27 hence, the useofanon-reciprocallegalmechanismsuchasan(officiallyandgener-ously proclaimed) promise might come in handy, be it in order to be per-ceivedasselflessandgivingorsimplytoassumealegalobligation,likeforexamplethecessationofacriticisedpracticesuchasdrift-netfishing,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 Thisdoes,of course,presuppose thepossibilityofdefiningaclearnormative frame-work for promises. For the latter see chapter three.Apromisesbeneficiarycan,however,choose to reject the promise made, see also pp 24750.

26 As Sicault remarks in discussing doctrines sometimes rather desperate efforts to con-strue a treaty relationship out of separate unilateral declarations: On ignore ainsi dlib-rment 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 con-sidrationdelobjectiffinal,Sicault,Engagementsunilatraux,n20above,644.

27 Even though public opinion, along with blame and shame tactics, are sometimes belittled,theevolvingfieldknownascorporatesocialresponsibilityindicatesconsumersimpact 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,on17July1990,announcedthatitwassuspendingdrift-netfishingintheSouthPacificduring1990and1991,ayearbeforetheadoptionoftheUNResolutiononthematter,see (1991) 95 Revue Gnrale de Droit International Public 155.

29 The precommitment theory comes to mind. For an introduction, the application of the lat-ter to international law and some of the incentives also mentioned here, even if not precommit-ments 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, infla-tion or natural catastrophes) will increase especially inner state pressure, withdesperatetimescallingfordesperatemeasures,astatemightfinditwise to get the international community involved by assuming an inter-national 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 self-restraint (or that of future governments),30 the very same strategy might beemployedto influenceandaltera thirdpartysperceptionofwhatastate might do in the future (eg convince investors by assuming a commit-ment 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 sittingdownatthetablewithoneofthebeneficiaries,orindeedthesolefactualbeneficiaryoftheobligationundertaken.Inanarticlediscussingthe 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 partic-ularly 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 unilat-eral 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 inter-national 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 inter-national 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 unilat-eral 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.

The Presumed Rareness of Promises 9

This inquiry into a states mind is of course fragmentary and mainly illustrates that promises cannot be assumed to be and necessarily remain rare, simply from them lacking a direct and tangible quid pro quo. Surely it will often rather be a mixture of the above-mentioned motives, along with additional incentives, which may inspire a state to use a unilateral assurance and not a treaty. The recent declaration of independence by Kosovo is an interesting case in this regard.35 The adherence to various obligations, such as to comply with the Ahtisaari Plan, to abide by the principles of the United Nations as well as with the Helsinki Act and other acts of the Organization on Security and Cooperation in Europe, was unilaterally pledged by Kosovo and not bi- or multilaterally ensured. Kosovowentasfarastoexpresslyaffirm,clearly,specifically,andirrevo-cably, that Kosovo shall be legally bound to comply with the provisions contained in this Declaration and declare[d] publicly that all states are entitled to rely upon this declaration.36 There is indeed little reason or room to doubt that Kosovo was willing to bind itself legally, the

35 For those recognising Kosovo as a state it is a directly applicable example; for those not recognising Kosovo it is still of importance as it is nevertheless illustrative of a situation in which a declarant might take recourse to a unilateral declaration. Even if Kosovo is not seen asastate,astatemightfinditselfinasimilarsituation,iebeingrejectedbynumerouspartiesof a certain treaty it would like to join.

36 See Kosova Declaration of Independence, available at www.assembly-kosova.org/?cid=2,128,1635, para 12. The declaration includes, inter alia, the following passages: We, the democratically-elected leaders of our people, hereby declare Kosovo to be an inde-pendent and sovereign state . . . (3) We accept fully the obligations for Kosovo contained in the Ahtisaari Plan, and welcome the framework it proposes to guide Kosovo in the years ahead. We shall implement in full those obligations including through priority adoption of the leg-islation included in its Annex XII, particularly those that protect and promote the rights of communities and their members. (4) We shall adopt as soon as possible a Constitution that enshrines our commitment to respect the human rights and fundamental freedoms of all our citizens,particularly asdefinedby theEuropeanConventiononHumanRights.TheConstitution shall incorporate all relevant principles of the Ahtisaari Plan and be adopted through a democratic and deliberative process . . . (8) With independence comes the duty of responsible membership in the international community. We accept fully this duty and shall abide by the principles of the United Nations Charter, the Helsinki Final Act, other acts of the Organization on Security and Cooperation in Europe, and the international legal obligations and principles of international comity that mark the relations among states. Kosovo shall have its international borders as set forth in Annex VIII of the Ahtisaari Plan, and shall fully respect the sovereignty and territorial integrity of all our neighbours. Kosovo shall also refrain from the threat or use of force in any manner inconsistent with the purposes of the United Nations. (9) We hereby undertake the international obligations of Kosovo, including those concluded on our behalf by the United Nations Interim Administration Mission in Kosovo (UNMIK) and treaty and other obligations of the former Socialist Federal Republic of Yugoslavia to which we are bound as a former constituent part, including the Vienna Conventions on diplomatic and consular relations. We shall cooperate fully with the International Criminal TribunalfortheFormerYugoslavia...(12)Weherebyaffirm,clearly,specifically,andirrevo-cably, that Kosovo shall be legally bound to comply with the provisions contained in this Declaration, including, especially, the obligations for it under the Ahtisaari Plan. In all of these matters, we shall act consistent with principles of international law and resolutions of the Security Council of the United Nations, including Resolution 1244 (1999). We declare publicly that all states are entitled to rely upon this declaration, and appeal to them to extend to us their support and friendship.

10 Introduction

problem, however, being that the obligations could not have been assumed by accession to the relevant treaties as some of the respective international organisations member states (including those with veto powers within the Security Council) were (and at the time of writing remain) unwill-ing 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 currentlydefined.37 States declare their willingness to cancel debts,38 toprovidefinancial,technicalorhumanitarianaidandassistance,39 espe-

37 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 can-celled 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 ofofficialdevelopmentassistancetothemainSub-SaharanAfricancountriesisbeingwrit-ten off. That is to say, Spain is announcing the cancellation of US$200 million worth of sub-Saharan 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, cit-ing 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,wasneverfulfilled,withtheGermangovernmentarguingthatithadnevergivena 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-

The Presumed Rareness of Promises 11

cially but not limited to times of crisis and catastrophes; they pledge to reduce greenhouse gases,40torefrainfromdrift-netfishing41 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 cur-rent 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 solemnproclamationnecessary,indicativeorevensufficient?Doweneedanyspecialwording,evenrepeatedpledgesordoesawrittenconfirma-tion 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,

liontofightdiseasessuchasAIDSinAfrica.GermanChancellorMerkelstressed:Weareconsciousofourobligationsandwanttofulfilthepromiseswemade.Andwewilldothat;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 Secretary-General,askingforittobecirculatedasanofficialdocumentoftheGeneralAssembly.Itsfirstparagraphreadsasfollows:On29July1996,Chinasuccessfullyconductedanucleartest. 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 rati-ficationprocedureexistsonusuallyboth the internationalandnationallevel. 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 bebinding?Thisquestionastowhetherornotofficialproclamationscanconstitute legal commitments and thereby legally speaking solid ground forother states to relyon,hasbeenanswered in theaffirmativeby theInternational 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, concern-ing legal or factual situations, may have the effect of creating legal obligations. Declarationsofthiskindmaybe,andoftenare,veryspecific.Whenitistheinten-tion 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 under-taking, 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 inter-national negotiations, is binding. In these circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even any reply or reaction from other States, is required for the declaration to take effect, since such a requirement would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the State was made.44

Even though it has been labelled a politically motivated decision not to decide,45 the rulings legal doctrine has survived until today and wasconfirmedby theCourt inother judgments.46 While some scholars

44 ICJ Nuclear Tests (Australia v France), Judgment (1974) 267, paras 4344 and ICJ Nuclear Tests (New Zealand v France), Judgment (1974) 472, paras 4647. Both judgments are based on largely identical facts, were issued on the same day and contain for the most part identical wording. The citations referred to in the following can therefore be found in both rulings, unless indicated otherwise. Largely for reasons of both the readers and the writers conveni-ence and in keeping with the treatment of the cases by most commentators, future footnotes will make reference to Australia v France only.

45 Franck, Word Made Law, n 33 above, 613, for whom the ruling, just like the famous US Supreme Court decision in Marbury v Madison, demonstrated that cases need not have monumental outcomes to make monumental law, ibid 612.

46 See ICJ, Application of the Genocide Convention, Judgment (Merits) (2007) paras 37778; ICJ, Armed Activities on the Territory of the Congo, Judgment (Jurisdiction and Admissibility) (2006) paras 4553; ICJ, Frontier Dispute, Judgment (Merits) (1986) 57374 paras 3940; ICJ, Paramilitary Activities in and against Nicaragua, Judgment (Merits) (1986) 132, para 261. The ICJhereconfirmeditsdoctrine,eventhoughnobindingcommitmentwasintheendfoundto exist in these cases. For more see chapter two.

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

had contemplated the existence of unilateral binding assurances termed promises long before the Nuclera Tests cases,47 others have been highly sceptical.48 While some scepticism might persist, today the existence of promises in international law is met with broad acceptance.49 Its capabil-ity as a means for states to oblige themselves legally has further more beenconfirmedbytheworkwithintheILC,throughitsfinaloutcome,theGuiding Principles. Although the latter do not use the word promise, the definitioncontainedinGuidingPrinciple1 is intheCommissionsownwords very directly inspired50 by the pivotal decision in that very area, ie the Nuclear Tests cases. It reads:

Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith; States concerned may then take them into consideration and rely on them; such States are enti-tled to require that such obligations be respected.51

The ILC has hence added some of its weight to the legal doctrine of promises in international law by choosing to underline the 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 unila-trale, 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 classificationbutnotthedoctrineaccordingtowhichunilateralassurancesofstatespledg-ing a certain future course of conduct can be binding, see Brownlie, Principles, n 2 above, 64142. Simply referring to declarations (whichareheldapart fromnotification,protestand 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 assump-tion that unilateral declarations manifesting a will to be bound and prom-isingcertainfutureconductarehencea legallywelldefinedtool,readyforeffectiveuse in inter-state relations.Unlike in thecaseof thecodifi-cation 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 consist-entandthatprogressivedevelopmentandnotmerecodificationwasnec-essary in this area of law.52 The ILC, however, never reached this stage in itscodificationattemptandthefinallypublishedGuidingPrinciples,notdraft 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 sev-eral 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 trans-plantedintotheCommissionsfinaloutcome.Inlightoftheimpasseintowhich the ILChadmanoeuvred itself, the final resultmightwell havebeen the only one feasible. Nevertheless, as is shown in chapter three in more detail when discussing the precise legal framework, anyone read-ingthroughtheCommissionsfinalproductwhilelookingforguidancewhen 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.

52 Cedeo, First Report, n 21 above, 5, para 9 and 6, para 15.53 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.

The Need for a Clear Assessment of the Applicable Law 15

Quite on the contrary, the lengthy and thorough debates within the ILC, the disagreement voiced over many important aspects as well as the vari-ous 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 not-withstandingthecriticismoftheCommissionsfinaloutcome,itscallfortheidentificationofmorepreciserulesinordertoallowformorestabil-ity, 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 ever-increasing interplay of people as well as problems across borders, states cannot refrain from interaction and, indeed, they dont. Yet, the frag-mented 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 unilat-eral pledges even in highly sensitive areas. There are unilateral assurances not to use nuclear weapons56 or to grant immunity from prosecution;57 statespromisetoallowforeignpowerstoflytheirplanesovertheirter-ritories58 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

56 For the so-called negative-security assurance, see pp 16166.57 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 notifiedandwhichiscitedasrelevantstatepracticebytheNetherlandsitself inresponseto the questionnaire prepared by the ILC and sent to governments by the UN Secretary-General: 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 unilat-

eral 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).

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 sol-emnly says it will do, or, more important, what it says it will not do, becomes a part of that trellis of reciprocal expectations on which the fragile international system grows.63

As presented in chapter two, promises are indeed used by states; they surface in the international legal debate, are relied upon and adjudi-cated before the ICJ. Yet, as the beginning of chapter three illustrates, the Guiding Principles established by the ILC reveal a lack of normative pre-cision in this area. One may be tempted to say: states are currently playing the game, without really knowing the rules. More accuracy in determin-ing the legal framework could, on the one hand, help to establish trust in binding declarations made, whilst, on the other hand, indicating in which cases state action might be taken as a sign of goodwill but will not be con-sidered as binding, and hence not fully trustworthy by an international lawyer nor will it allow for the legal sanctions available for obligations breached under international law. While this is not to say that legal com-mitments are necessarily and always more reliable than merely political ones, it should not be overlooked that whether a declaration is consid-eredtobebindingornotislikelytobeonefactorinfluencingtheamountoftrustplacedonitbytheaddressee, justasitislikelytoinfluencethedeclarant in assessing whether he has to abide by the assurance made.64 A solemn pledge is somewhat weakened if it is based on the addressees assumptionthatit isnotbinding,iemodifiableandrevocableatwill.Iftherefore, in our legalised world,65 the international lawyers answer to the question: Is State A bound by its declaration?, in light of a rudimen-tary framework, remainsafirm Maybe!,withouthimevenbeingableto spell out when this maybe is likely to tilt either way, law can not be considered as stabilising international relations. Despite numerous rul-ings on the matter, currently, uneasiness still prevails when dealing with unilateral declarations.66 While this uneasiness is understandable in light

63 Franck, Word Made Law, n 33 above, 616. Similarly, de Visscher, Remarques, n 18 above, 465, emphasising that states now have to be more prudent when they make declarations.

64 As Mar