A Mirage in the Sand? Distinguishing Binding and Non-Binding Relations Between States

Leiden Journal of International Law

Volumn 10, Issue 2, 1997, Pages 223-247

  Chinkin, Christine ^a  

^a NONE

Author keywords

dispute settlement; international agreements; International Court of Justice

Indexed keywords

EID: 33847577223     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156597000204     Document Type: Article

References (74)

1. Perhaps the most famous example is the holding in the Nuclear Tests cases (Australia v. France; New Zealand v. France), Judgment, 1974 ICJ Rep. 253 and 457, respectively, that there was no longer a dispute between the parties and thus no object to continuation of the proceedings; see the discussion in M. Koskenniemi, From Apology to Utopia 307-311 (1988).
2. Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment of 1 July 1994, 1994 ICJ Rep. 112; Judgment of 15 February 1995, 1995 ICJ Rep. 6. The adjectives are those of Vice President Schwebel, 1994 ICJ Rep. 112, at 130 (Judge Schwebel, Separate Opinion).
3. Qatar v. Bahrain, Judgment of 1 July 1994, Maritime Delimitation and Territorial Questions Between Qatar and Bahrain note 2, at para. 27.
4. J. Klabbers, The Concept of Treaty in International Law (1996).
5. United Nations Charter, Arts. 2(3), 33.
6. Aust, United Nations Charter note 5.
7. Qatar v. Bahrain, Judgment of 1 July 1994, Aust note 2, at para. 17.
8. Id. The appropriate translation from the original Arabic was disputed by the parties.
9. Id., at para. 18.
10. The Court commended the Bahraini formula as being carefully constructed to avoid any express reference to the sensitive areas in dispute while sufficiently clearly comprehending the entire dispute; Qatar v. Bahrain, Judgment of 15 February 1995, Id note 2, at para.
11. E. Lauterpacht, *PartiaV Judgments and the Inherent Jurisdiction of the International Court of Justice, in V. Lowe 8c M. Fitzmaurice (Eds.), Fifty Years of the International Court of Justice 468 (1996).
12. The President's Order of 11 October 1991 reflected this understanding.
13. As was pointed out by Judge Oda, the form of the 1987 Agreement was unusual. No letters were exchanged between the parties but between Saudi Arabia and Qatar and Saudi Arabia and Bahrain. For this reason Judge Oda denied their legal effect: Qatar v. Bahrain, Judgment of 15 February 1995, The President's Order of 11 October 1991 reflected this understanding. note 2, at 44-45 (Judge Oda, Dissenting Opinion). However, this arrangement is not so unusual where an outcome has been facilitated by a third party mediator substituting for direct negotiations between the parties. E.g., the Algerian Declarations of 19 January 1981 were not directly between the parties, although they clearly constituted legal rights and obligations.
14. Qatar applied for registration in June 1991 and filed its application on 8 July 1991.
15. Qatar v. Bahrain, Qatar applied for registration in June 1991 and filed its application on 8 July note 2. Vice-President Schwebel, Judges Oda, Shahabuddeen, Koroma, and Judge ad hoc Valticos dissented.
16. Judge Jessup described how terminology has always bedevilled the law of treaties, for example in 1925 a Sub-committee of the League of Nations Committee on the Codification of International Law referred to “the prevailing anarchy as regards terminology in the law of treaties.” South West Africa cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, 1962 ICJ Rep. 319, at 402 Qudge Jessup, Separate Opinion).
17. See e.g., Temple of Preah Vihear (Cambodia v. Thailand) (Preliminary Objections), Judgment of 26 May 1961, 1961 ICJ Rep. 17, at 32; Nuclear Tests case (Australia v. France), Judge Jessup described how terminology has always bedevilled the law of treaties, for example in 1925 a Sub-committee of the League of Nations Committee on the Codification of International Law referred to “the prevailing anarchy as regards terminology in the law of treaties.” note 1, at para. 45.
18. Report of the International Law Commission on the work of its eighteenth session, 1966-2 YILC 172.
19. See, e.g., R. Jennings 5c A. Watts, Oppenheim's International Law, Vol. I, 1200 (1992)
20. E.g., the United States State Department International Agreement Regulations, 27 April 1981 (5) states that departures from the customary form “will not preclude the agreement from being a customary agreement.” Cited by Aust, Oppenheim's International Law note 5, at 799.
21. R. Baxter, International Law in ‘'Her Infinite Variety'’, 29 ICLQ 549 (1980).
22. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 (1980), Art. 2(l)(a).
23. Id., An. 3.
24. O. Schachter, The Twilight Existence of Non-Binding International Agreements, 71 AJIL 296 (1977).
25. Aust, The Twilight Existence of Non-Binding International Agreements note 5, at 794.
26. E.g., the Fourth Special Rapporteur of the International Law Commission asserted that in so far as an intention to create legal relations is required under international law “the element of intention is embraced in the phrase ‘governed by international law’.” H. Wal-dock, Special Rapporteur, 1965 YILC II, at 12. Munch considered that this phrase excluded political declarations and municipal contracts. Attention focussed on the latter and the former became obscured because of their difficulty; F, Munch, Comment on the 1968 Draft Convention on the Law of Treaties: Non-binding Agreements, 29 ZaoRV 1 (1969).
27. South West Africa cases, the Fourth Special Rapporteur of the International Law Commission asserted that in so far as an intention to create legal relations is required under international law “the element of intention is embraced in the phrase ‘governed by international law’.” note 18, at 411 Qudge Jessup, Separate Opinion).
28. The differing views as to whether there is a presumption that an agreement is binding is a less extreme form of the debate as to whether all informal commitments have legal effect; J. Klabbers, The Concept of Treaty in International Law (1996). Fawcett argued against such a presumption: J. Fawcett, The Legal Character of International Agreements, 30 BYIL 381 (1953). Mullerson prefers the presumption that every agreement duly signed by states has a legally binding intent unless the opposite intention is clearly manifested: R. Mullerson, Sources of International Law: New Tendencies in Soviet Thinking, 83 AJIL 511 (1989).
29. Article 7 of the Mandate provided for the submission of disputes as to the interpretation or application of the Mandate to the International Court of Justice. Article 37 states: “[wjhenever a treaty or convention in force provides for reference to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice.”
30. South West Africa cases, Article 7 of the Mandate provided for the submission of disputes as to the interpretation or application of the Mandate to the International Court of Justice note 18, at 330.
31. South West Africa cases, South West Africa cases note 18 Qudge Jessup, Separate Opinion).
32. South West Africa cases, South West Africa cases note 18.
33. South West Africa cases, South West Africa cases note 18 Qudges Spender and Fitzmaurice, Separate Opinion).
34. Aegean Sea Continental Shelf case (Greece v. Turkey) Qurisdiaion), Judgment, 1978 ICJ Rep. 3, at para. 97.
35. Cf. E. Vierdag, The International Court of Justice and the Law of Treaties, in Lowe & Fitz-maurice (Eds.), Aegean Sea Continental Shelf case note 12, at 153.
36. Aegean Sea Continental Shelf case, The International Court of Justice and the Law of Treaties note 38, at para. 96, cited in Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, 1994 ICJ Rep. 6, at paras. 22-23.
37. Qatar v. Bahrain, Judgment of 15 February 1995, Aegean Sea Continental Shelf case note 2, at para. 35.
38. Id., at para. 36.
39. Dismissal of the travaux preparatoires as a supplementary means of interpretation discounted the parties’ intentions although the meaning of the words were not clear. Qatar v. Bahrain, Judgment of 15 February 1995, Id note 2, at 27 (Vice-President Schwebel, Dissenting Opinion).
40. Id., at para. 41.
41. Cf. Koskenniemi, Id note 1, at 306: “[tjherefore it is necessary to look, not at what other States subjectively experienced but how a “reasonable man” acting in good faith, would have understood the declaration.”
42. Aegean Sea Continental Shelf case, “[tjherefore it is necessary to look, not at what other States subjectively experienced but how a “reasonable man” acting in good faith, would have understood the declaration.” note 38, at para. 108.
43. Id., at 50 (Judge Lachs, Dissenting Opinion).
44. In the Heathrow Airport User Charges case the arbitral award found that a Memorandum of Understanding between the US and UK was not a source of independent legal rights and duties but that it had value as consensual subsequent practice by the parties. The award is described in 88 AJIL 738 (1994).
45. Vienna Convention on the Law of Treaties, the Heathrow Airport User Charges case the arbitral award found that a Memorandum of Understanding between the US and UK was not a source of independent legal rights and duties but that it had value as consensual subsequent practice by the parties note 24, Art. 60.
46. Id., Art. 46.
47. South West Africa cases, Id note 18, at 351 (Judge Bustamante, Separate Opinion).
48. 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 Rep. 16, at para. 94.
49. Covenant of the League of Nations, 1919, Art. 22.
50. Thus while form is not determinative, increased formality may be further evidence of the parties’ intention to be bound.
51. This is consistent with the approach of the Secretariat which makes no judgment as to whether documents submitted for registration have the legal character of an international agreement. See further H. Han, The U.N. Secretary-General's Treaty Depositary Function: Legal Implications, 14 Brooklyn Journal of International Law 549, at 567 (1988).
52. Anglo-Norwegian Fisheries (United Kingdom v. Norway), Judgment, 1951 ICJ Rep. 116; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment, 1984 ICJ Rep. 246.
53. Koskenniemi, Delimitation of the Maritime Boundary in the Gulf of Maine Area note 1, at 312-320.
54. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) (Jurisdiction and Admissibility), Judgment, 1984 ICJ Rep. 392.
55. R. Higgins, Fundamentals of International Law, in N. Jasentuliyana (Ed.), Perspectives on International Law: Dedicated to Manfred Lachs 3 (1995).
56. Aegean Sea Continental Shelf case, Pleadings, Oral Arguments and Documents, at 345.
57. Legal Status of Eastern Greenland (Norway v. Denmark), 1933 PCIJ (Ser. A/B) No. 53; Nuclear Tests cases, Aegean Sea Continental Shelf case, note 1, at 457; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, 1986 ICJ Rep. 14; Frontier Dispute case (Burkino Faso v. Mali), Judgment, 1986 ICJ Rep. 554.
58. Temple of Preah Vihear, Legal Status of Eastern Greenland note 19, at 32. The statement was made in the context of a declaration made under the Statute of the International Court of Justice, Article 36(2). Such declarations have been described as unilateral acts giving rise to bilateral engagements; Military and Paramilitary Activities in and Against Nicaragua, Legal Status of Eastern Greenland note 61, at para. 60. Since a number of the cases discussed concern the question of consent to the jurisdiction of the Court these dicta are especially pertinent.
59. Nuclear Test cases, Since a number of the cases discussed concern the question of consent to the jurisdiction of the Court these dicta are especially pertinent note 1.
60. “Many commentators have stressed the extreme unlikeliness that France would really have inteded (sic) to assume an obligation-not least because it had itself in another connexion denied that unilateral statements of this kind would be binding.”: Koskenniemi, Nuclear Test cases note 1, at 307.
61. Id., at 308.
62. Frontier Dispute case, Id note 64, para. 39.
63. Id., at para. 40.
64. South West Africa cases, Id note 18, at 403 (Judge Jessup, Separate Opinion).
65. Frontier Dispute case, South West Africa cases note 64, at para. 39.
66. Koskenniemi, Frontier Dispute case note 1, at 300.
67. Id., at 304.
68. The Court especially emphasized good faith and trust in international relations in the Nuclear Tests cases, Id note 1, at para. 46. Cf. Jennings & Watts, Id note 21, at 1202.
69. It is noticeable that in many of these cases, South West Africa, Aegean Sea, Nicaragua and Qatar v. Bahrain itself, the issue of the legal status of an instrument has arisen in the context of determining whether the parties have consented to the Court's exercise of jurisdiction within the terms of Article 36.
70. Qatar v. Bahrain, Judgment of 1 July 1994, It is noticeable that in many of these cases note 2.
71. Lauterpacht, Qatar v. Bahrain note 12, at 467.
72. This point was made by P. Kooijmans in his Commentary, Increasing the Use and Appeal of the Court, at The Hague in April 1996.
73. Vierdag, This point was made by P. Kooijmans in his Commentary note 39, at 166.
74. As was done through the so-called Chapeau Agreement between the US and UK to resolve the difference of opinion with respect to Memoranda of Understanding. See id.