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Citation: 1 Italian Y.B. Int'l L. 166 1975
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PROMISE IN INTERNATIONAL LAW:
A CONFIRMATION
OF ITS
BINDING
FORCE
y SERGIO
CARBONE*
I. The
International Court
of
Justice s
judgment
of
o
December,
1974 on
the well-known dispute
between
New
Zealand
and France
regarding
nuclear experiments
in
the
waters
of
the South Pacific
, is
definitely
not
above criticism.
This
applies,
firstly,
to that part
of
the
judgment
in which
the
effects
of
a voluntary
undertaking
are
held as
equivalent
to those
of
a
judicial decision;
secondly,
to
that
part
in
which the
interpretation
given
to
New
Zealand s
application was
stretched
so as to
maintain that
the French
Government s
unilateral
assurances
fully met
the
applicant s
requests (this
in
order to
uphold
the
dispute as having
o object).
The weight
given
to this
judgment
as
a precedent
is, therefore,
bound to
be
affected
by
the
aforesaid
objections. Consideration
should
at least
be taken
of the arguments
- which
are,
in
fact, very
persuasive put
forward by
the
judges Onyeama,
Dillard,
Jim~nez
de Ar6chaga
and
Sir Humphrey
Waldock in their
joint
dissenting
2
opinion .
On
one
point
(to
be
herein considered), however, the Court
reached
such
a
solution and put
forward such
arguments
as to contribute
(probably
in a decisive
way)
to
the
clarification of
certain
aspects
which
have been
made
the
object
of
lengthy and thorough
debate especially by
Italian doctrine:
namely, the
legal value of
a
promise
. To
it the Court unhesitatingly
assigned
the effect
of
creating legal
obligations ,
further stating
that
nothing
in
the
nature
of
qui
pro
qu
nor
any
subsequent
acceptance
of
the unilateral
declaration nor
even a reply
or
reaction
from
other
States is
required for
the
declaration to
take effect
.
2.
Doctrine's
stand
on
the
matter
during
this
century had,
at first,
been
sceptical;
only
the moral and
political nature
of
promise
was
stressed
even to
the consequence
of
denying
to
it
any juridical
relevance
in interna-
Professor
of
International
Law,
University
of
Genoa.
I.C.J. Reports
(1974),
PP.
57 ft.
I.C.J.
Reports
cit., pp. 494
ft.
3
I.C.J.
Reports
cit.
P. 72.
8/11/2019 PROMISE IN INTERNATIONAL LAW.pdf
3/8
PROMISE
IN INTERNATIONAL LAW
tional
relations
.
This stand was
fundamentally
due to
three factors: i) the
resistance
offered to
the possibility
of determining
well-defined
unilateral acts in
State
practice by
the fact of conceiving
international
law as based on
agreements;
ii)
the
formulation
of
art. 38
of
the Statute of
the International
Court
of
Justice
then
the
Permanent
Court of International
Justice)
which, in
listing
the
sources
of international
law,
does not
explicitly
mention,
nor even
allude
to, unilateral
acts, whilst
assigning great
relevance
to agreements;
iii)
the
fact
that,
while
in
national
legal orders
contract is, universally
and
indispu-
tably
inspite
of certain
obvious
limits), held as being
the typical
means of
establishing,
regulating and
cancelling any
kind
of
legal
relationship what-
soever,
the
same
is
not true
for unilateral acts.
These
are generally
thought
to
have
legal
effects
only
in
certain cases
expiessly
provided for by
the
legislator .
In
more recent
times doctrine s
ill-hidden
scepticism
on the value of
promise has
undergone
a
slow,
yet
significant, change.
Reference
here,
however,
is not
to those authors
who,
largely
by
means of
abstract
theore-
tical
and
not
very
convincing
reasoning,
went
as
far
as to propose changing
the classic rule of
international
l w
pacta sunt servanda ,
into promissio
est obligatio
or promissio
est
servanda
6
The
aforesaid
changes
are
due, rather,
to those authors who,
on careful
examination of judicial
and
diplomatic practice,
acknowledged
the
binding
force
of
promise
even if
under
particular circumstances
and without
implying
that it is a
general source
of
obligations); furthermore
they
do
not condition
such
a
force
to
reciprocity
nor to an
expression of
consent
-
be it
implicit or
explicit, prior
or
sub-
sequent -
on the part of
the
promisee
4
Extremely
significant
in this
respect
is
the
view
of those
authors
who
concede
in
principle the binding
force
of promise
while
denying
it
at
the precent
stage of
the
develop-
ment of international
law; e.g.
among Italian
writers, ZICcARDI,
La
Costituzione dell ordi-
namento internazionale, Milano,
1943 espec.
pp. 418-19; BISCOTTINI,
Contributo
alla teoria
degli tti unilaterali
nel diritto
internazionale,
Milano, 1951,
pp. 158 ff.; CANSACCHI, Istitu-
zioni di diritto
internazionale pubblico
5
th
ed., Torino, 1963,
p. 216.
This point
is more widely
dealt with in the
present writer's
Promessa
e
alfidamento
nel
diritto
internazionale,
Milano,
1967,
pp. ii
ff.
31 ff.
6
In this
sense see
esp.
the
arguments
put
forward
by Bosco,
I ondamento
giuridico
del
valore
obbligatorio
del diritto
internazionale ,
Rivista di
Diritto
pubblico
1938),
pp.
626 ff. This
author is indebted
to
some
general
theories on law-making
previously
developed
by SALvIoLI,
I iconoscimento
degli
Stati
, Rivista 1926), pp.
331 ff. at
pp.
356-58, and
DUGUIT Etudes
de droit
public, I,
Paris,
19Ol
esp.
pp.
373
and
409.
1 Among those more recent
writers who
pay attention to the binding
force
of
promise,
VENTURINI,
La
port6e et
les
effets
juridiques
des attitudes
et des
actes
unilat6raux
des
Etats
, Hague
Recueil
(1964-I)
pp. 67 ff.;
Suy,
Les
actes juridiques
unilatraux
en
droit
international public Paris,
1962, pp.
113 ff.; DE
NoVA
Considerazioni
sulla
neutralitA
permanente dell'Austria
,
S,
VIII, 1956
i
ff.
at
pp.
7
ff.;
VERDROSS
V61kerrecht
5
th ed.,
Wien,
1959,
pp.
57 ff.;
BERBER,
Lehrbucb des
Vdlkerrechts, I, Miinchen-Berlin,
9 o
8/11/2019 PROMISE IN INTERNATIONAL LAW.pdf
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ARTICLES
AND
NOTES
Even
today, it is true that
wide-ranging
doubts and hesitations
exist
on the
subject
among certain authors.
In interpreting and evaluating
interna-
tional practice in respect
of
promise, they stress the necessity that promise
be accepted, even
tacitly, before it becomes binding
on the
promisor
'.
So
much
so
that, recently, Quadri -
arguing
from the
fact
that many authors
in support of
the binding force of
promise, have stressed
the need
to safe-
guard
the promisee's expectation - has drawn the conclusion that even
those favouring
the binding
force
of promise
recognise that to this effect
the
promisee has
to
take part
in
the formation of it;
thus likening promise
to a veritable
agreement '.
It
has,
however, been
widely and
soundly argued
that the
r6le of
the
promisee's expectation is different
from that of an implied
consent as
it
is
provided
for
in the
so-called
tacit
agreements .
As
a matter of fact,
it
has
been
demostrated that
an
international
promise has binding effects
only
when
it
concurs with other
factors in creating
a
situation
which
is,
in the
interest of
the
promisee,
legally protected
by
international
law;
and only
on
such
perspective
account must
be taken
of
the promisee's expectations among
all
the circumstances
in
which the promisor's intention to
be
legally
bound
has been expressed
thus
giving
way to
the promisee's
reliance that
promise
will be
fulfilled.
This
implies that international
law requires the
promisee
to
show
(not his
consent
be
it even tacit but
merely) his expectation and
factors giving
rise
to such expectation
which,
together
with the promisor's
intention
of
being
legally
bound,
are
the
only
relevant
evidence of
a
situation
protected,
in the
interests
of
the
promisee,
by
international
law
0
The International Court of
Justice
seems
to
be clearly heading
in
this
direction when it distinguishes,
in
very precise
terms,
between voluntary
and unilateral
participation
in
the formation
of promise (and the conditions
under
which
it is made), on the one
hand,
and
the ratio justifying
its
binding
pp.
4o8 ff ; ROUSSEAU,
Droit
international
public
I, Paris,
1970 pp.
422 ff For further
references
along the same line
of
thought,
see the present writer's La promessa
etc. cit.,
esp.
p.
14
footnote
8.
8 Recently
SERENI,
Diritto
internazionale III, Milano, 1962, pp
1350
ff ;
QUADRI,
La promessa
nel
diritto internazionale ,
DI
(1964),
pp. 91 ff ; ID. Diritto
internazionale
pubblico
th ed., Napoli, 1968, pp. 569
ff
9 Especially
relevant to the subject QUADRI, La promessa
etc. cit., at
p. 97
10 Reference may be made
on
this point to the present writer's Prornessa
etc. cit.,
esp. i6i fl
See,
however, the objections
raised by
CAPOTORTI
in reviewing that study:
CI
(1968)
esp. p 8o
5
. According
to the distinguished
author,
precisely from arguments
developed there,
it
would appear preferable
to refer -
rather
than to
unilateral
promise
-
to
a
multi-phase legal situation
to
which the expression
of
intention is relevant merely
as a condition;
legal effects
ensue
only
from a subsequent situation
of fact, on the occurrence
of which they finally depend .
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PROMISE IN
INTERN TION L L W
nature,
on the
other.
As
a
matter
of
fact, according to the judgment
under
consideration,
an obligation
on
the
part of
the promisor
State
can
be
said
to
exist only if
there
is, not
exclusively
his
consent to
be
bound, but
rather
a set of
circumstances
under
which the promissory
unilateral
declaration is
such
as to raise a founded expectation that
the promisor State will behave
according
to
certain
standards . Justification
for the aforesaid
protection
of
the promisee s
interests
has been more precisely
found in the need to
encourage
trust and confidence inherent in international
co-operation,
in
particular
in
an age
when this
co-operation in
many fields is becoming
increasingly
essential . This, in fact,
again according to the Court implies
that States to which under
certain circumstances)
a promise has been made
should be in
a position
to take cognizance of
unilateral declarations and
place confidence in them
and be entitled to require that
the obligation thus
created be respected 12
3. Apart
from
asserting
as a matter
of
principle
the binding force
of
promissory
unilateral
declarations,
the judgment
under consideration also
tries
to
clarify certain specific
aspects
with regard to its
regulation.
The judgment points
out, first and foremost, those circumstances
under
which such legal
protection
of the promisee s
interests materialises as to
bind
the promisor to perform his unilateral
commitments.
A
typical
legal
protection
of
the promisee s expectation
is
assured
(at
least implicitly)
by
international
law
when
a unilateral
declaration is publicly
made
(especially
if
before United
Nations
organs and
along the
general guide-lines laid down
by
such
organs) in connection
with a pending dispute before the International
Court of Justice.
As it
is well-known, account has already
been taken of the circumstances
under review
by
practice
which, as regards
the
binding force of
promise, has
been developing over
recent
years .
Indeed
such
circumstances are not
directly
and exhaustively specified
by the international
rule
governing
the
binding
effects
of promise
(as
opposed to those rules, in force
within the
legal order
of many States,
envisaging the
effects
of
promise in relations
between
individuals).
On
the contrary,
their appreciation
is left
to
the
I.C.J. Reports
cit., esp. par. 51 p. 474.
12I.C.J. Reports cit., esp. par. 49
P. 473.
13
See
on this point the cases referred to
in
the present writer s
romessa cit., pp.
133-
36
with special
regard to
the indications
to
be drawn
from
both the
verification
of the
binding
force
of
the unilateral
declarations
on
minorities made by
certain
States within the
framework of the League
of Nations system
and
the
Mavrommatis
case P.C.I.J., Series
A,
No.
5 . The latter,
in particular,
is
relevant to
the
present
discussion for
its
analogies
with
the
case
submitted to the
Court
in connection with
the
dispute under
consideration.
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ARTICLES
AND
NOTES
discretionary judgment of the
interpreter called to
determine,
in
each
indi-
vidual
case, whether
the conditions
exist for applying the
said rule: first
among
these
being the promisee's
actual
expectation
on
how the promisor
will behave.
To have
clarified
those circumstances that
surely
concur
in
giving
rise
to
situations
from which
legally
protected
expectations may
ensue, is
a
sub-
stantial
achievement of the
judgment under
consideration.
In such
a
way,
it contributed
to
establishing certain reference
points
in
legal relations.
On the other
hand,
the
said
judgment
also
tried to
further clarify
the
only limit
set
by international
custom on the interpreter
when
ascertaing
in
each
individual
case
-
the
promisee's expectation
(a
factual element,
on
which, as
well
as
on
the promisor's intention to be
committed
in
law,
the binding
effects
of promise
depend). And on this regard,
as it
has
been
pointed
out
from
various
sides 14 such
a
limit lies
in the promissory declara-
tion
being
duly
communicated
by
the promisor. Indeed, it is essential for
the binding
effect
of the promise to be
brought
to the notice
of
the party
interested in
its
fulfilment (i. e.
the promisee) and
in
such specifiic
way to
concur
in
giving rise to a
situation which
is
protected by
the
international
legal
order in the
promisee's
interests. In all other
cases
promise will not
be
binding even
if
an expectation on
the part of the beneficiary has,
in
fact,
taken place.
Yet,
while
some
writers held
on thi3
point that the interested party
should
be
officially
notified of the
promise
by
means
of
an
ad
hoc formal
act other
thought it sufficient
that
any
means of communication whatever
(e. g.
a
diplomatic note or even
an
oral form)
be used
16
The judgment
under
consideration
solves the question decisively by
explicitly
upholding the
latter
view. It states, on
the
one
hand, that
the
promissory
unilateral
declaration becomes binding
on the States interested
in
its
fulfilment
by
the
sole
fact
of it being made
public; on the other, that
no specific
formal requirement
is
envisaged for
promise to be either made
or
communicated and that, consequently,
notice,
even
if
verbal, can give
rise to
legitimate expectations
on
the part
of
the promisee
.
It
thus
seems
14 In this
sense
see
esp.
DE NOVA Considerazioni cit.,
at p.
II;
Suy, Les ac es cit.,
p. 15o; VENTURINI
La portde cit., at p.
4 2
and,
most recently, ROUSSEAU,
Droit
international cit. at
p. 424.
Cf.,
for all., DE
NOVA,
Considerazioni
cit., at p. ii.
16 This solution
is generally accepted by doctrine;
references in the
present
author s
Proinessa cit.
at pp. 142
17
Already in
support
of this
view,
for
all
Suv,
es
actes
cit. at p.
i5o,
who
recalls
on this
point
the general principle
of
freedom as
to form of
international
acts
obtained,
on
the
basis
of
a long-established practice, in
international relations.
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PROMISE IN INTERNATIONAL LA W
possible to conclude that the only element of fact directly envisaged by an
ad
hoc international
rule,
as allowing
a
legitimate expectation
on
the part
of the
promisee
to be ascertained,
lies
in the latter's being
aware
of the
promisor's intention no matter how
such communication
has
taken
place.
4. Finally, besides reiterating that resort has
to
be made
to
restrictive
interpretation
in
assessing
the
scope of a promissory undertaking
(in
as
much
as
it
amounts to
a unilateral limitation, not
governed
by
reciprocity,
on such
States' freedom
as
would
otherwise
have
to
be
presumed
in
their favour)1,
the International
Court
of Justice also
refers
briefly to the problem
of
whether promise may be revoked.
As it
is well known, doctrine
and practice are unanimous on this point
in
holding
that
a
unilateral promise (precisely is so far as it is a
statement
of intent entailing
a
unilateral self-restraint) can be freely revoked
(and
actually withdrawn)
up
to the moment
when it is acknowledged by the
promisee
.
Different
solutions have, however, been given to the problem to see
whether promise may be revoked
once
such
an
acknowledgement
has
taken
place.
Indeed,
some authors are
inclined
to consider promise
as
absolutely
irrevocable and others as always
subject
to unilateral revocation by the
promisor ; whereas practice has never followed definite
trends
on
the
problem
Even if, in
this regard, the
Court did
not suggest such exhaustive
solu-
tions
as would
apply
to
all problems
connected
with
the revocation of
pro-
mise, it
did,
however, state
at least
in most clear
terms,
that
the
very
existence on
the
part of
the promisor
of a serious intention to bind himself
excludes his having an arbitrary
power
of
reconsideration
Such a view
is
undoubtedly worth
sharing not
only
because it
undermines,
once and
for
all,
those theories
that, while expressly
aimed at
determining
when promise
may
be
revoked,
eventually lead to denying its binding force; but, above
all,
the
said
view
deserves
support
because
it
adopts
well-defined
standards
8 As already noted by
PFLUGER, Die
einseitige
Rechtgeschiifte
in
V6lkerrecht
Freiburg,
1936 at p. 57 this rule applies to all unilateral
acts.
9
Arguments
in support
of
this view already in CANSACCHI
La
notificazione
cit.,
pp.
129 130
2 Suy,
Les
actes cit., pp.
15o-5r,
and VENTURINI, La
port~e
cit., pp. 402-03.
21 WENGLER, V6lkerrecht
I, Berlin-Gittingen-Heidelberg, 1964, p. 3o8.
22 For a more
ample discussion on this topic, the present writer's Promessa cit. at
pp. 78 ff.
2'
I.C.J. Reports
cit.,
par. 53 at p. 475.
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ARTICLES ND NOTES
to
which it would
seem
in
order to
refer
in
appreciating
the
precise
limits
to
the power of
revoking
a
promise.
As
a
matter of
fact,
what
appears
to emerge
from
the
Court's
consi-
derations
is
that such limits
cannot be fixed
a piori or in
general terms
but
rather in
relation
to each individual
case. Special regard
must
be
given, in
particular,
to
the
exact
content
of
the
promisor's
undertaking,
to
all
the
circumstances
under which it
came
into
being
and how
far
these have
changed
when the problem
of revocation
is
raised,
to
the promisee s
ex-
pectation brought
about
by
these circumstances
as
well
as to
the promisor s
behaviour.
Thus, while
not
excluding
cases
where
the promisor
can
revoke
a promise
(especially
if
he had left
himself the possibility to
do
so were given circum-
stances
to
arise) it
is
to be
pointed
out
that such
a
power,
besides
being
in
no way
arbitrary , is insurmountably
limited (in
the interest of
the
promisee)
by the situation which
has been developing
subsequent
to
the
acknowledgement
of the promissory
unilateral
declarations,
allowance
made
for the
type
of undertaking
envisaged. This
seems
to
point
towards a regime
under which
the discipline
of
revocation
of
promise
is
similar
to that
in
force on the denunciation
of
treaties 25
Such a conclusion
appears to be
both well-balanced
and
worthy
of
acceptance 26. With
reference
to
the case between
New
Zealand
and
France
it,
however,
implies,
as was
said
at the beginning
and as certain
judges have
correctly
observed in their dissenting opinion
27
that
the
effects
of
France s
promissory
unilateral undertakings
cannot
be identified
-
whereas
the
Court, at least implicitly,
does identify them
- with those
that would
have
ensued from
a
judgment
in favour
of New
Zealand s
claims.
24 The objection raised by
QUADRI (
La
promessa
cit.,
p.
97)
against Wcngler's
view
was,
at least in part,
well-founded
when
he
stressed
that in this way a promissory
commit-
ment would be
transformed
into a si
voluero committment: revocation
could in fact
result, even tacitly, from
a conduct at
variance with
the
promised one.
25
For a comprehensive
and detailed
description
of the
rules
in force
(and
of solutions
adop-ed in the Vienna Convention
on
the Law of Treaties),
for all, CAPOTORTI,
L'ex-
tinction et
la
suspension
des
trait6s
,
Hague
ecuedi
(1971-III),
pp. 419
ff
at pp.
478
ff
and 5 7 i
26
For a number
of remarks
to
be
taken
into
consideration
in this
respect,
CONFORTr,
a
funzione dell accordo
nel
sistema
delle
Nazioni
Unite, Padova,
1968, p.
138, esp. foot-
note where, in contrast
with
statements
put forward in
the
text,
the inexistence
of an
established
practice on
limitations to the
power
of
revoking
promise is deemed
to
confirm
the latter's lack of
binding
force.
This
argument,
indeed, does
not seem wholly convincing.
The fact
that, on certain specific
aspects of
promise, State
practice
is
not
firmly established
does
not necessarily mean
that promise is not relevant
in law.
So much so that even the
regulation
of
revocation
and
denunciation lack
in
precision
even as
far as
concern definitely
binding
commitments (such as those
derived from
international agreements).
27
I.C.J. Reports
cit.,
at pp. 503 ff