promise in international law.pdf

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1/8

Citation: 1 Italian Y.B. Int'l L. 166 1975

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2/8

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.


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


4/8

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 .


5/8

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.


6/8

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.


7/8

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.


8/8

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

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