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The International Legal Effects of Unilateral Declarations

Published online by Cambridge University Press:  27 February 2017

Alfred P. Rubin
Alfred P. Rubin*
Affiliation:
Of the Fletcher School of Law and Diplomacy
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Extract

The International Court of Justice is the principal judicial organ of the United Nations and its judgments are usually considered highly persuasive as to propositions of international law. Thus, when the ICJ formulates a rule of international law giving binding force to a unilateral declaration of a state’s future intentions, statesmen may be expected to refer to that formulation for guidance whenever they consider the possibility of issuing a declaration of future policy. Moreover, the ability of the ICJ to support its formulation of a rule of international law in terms of the international legal order and legal logic affects the perceptions of statesmen as to the probity of the Court, as well as the willingness of states to refer real cases to it. The Judgment of the ICJ in the Nuclear Tests cases raised both these issues in a particularly pointed way.

Type
Research Article
Information
American Journal of International Law , Volume 71 , Issue 1 , January 1977 , pp. 1 - 30
Copyright
Copyright © American Society of International Law 1977

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References

1 UN Charter, Art. 92. As to the persuasiveness of ICJ judgments, see Fitzmaurice, Judicial Innovation—Its Uses and Its Perils … , in Cambridge Essays In International Law 24 (1965); C. Parry, The Sources And Evidences Of International LAW 91-94 (1965).

2 Nuclear Tests (Australia v. France), [1974] ICJ REP. 253 and Nuclear Tests (New Zealand v. France), id. 457.

3 Of the nine Judges subscribing to the Judgment, three in separate opinions expressly withheld their concurrences from the rationale stated in the Judgment (Forster, Gros, and Petré n). A fourth concurring Judge in his Separate Opinion (Ignacio-Pinto), reaching the same conclusion as the Judgment but by other logic, affirmed that he found the Judgment “just and well founded” (id. 311). Of the six dissenting Judges, four in a Joint Dissenting Opinion (Onyeama, Dillard, Jimé nez de Aré chaga, and Waldock) and one in an individual Dissenting Opinion (Barwick) found fault with the Judgment on so many other points that their failure to express themselves on this point can hardly be interpreted as indicating a concurrence; they all referred to their unwillingness to take a position on the ground that the point was not argued before the Court. (Id., Joint Dissenting Opinion paras. 14, 23-25 (Australia v. France), 13, 22-24 (New Zealand v. France); Barwick Dissenting Opinions 392, 448 (Australia v. France), 528 (New Zealand v. France).) Another dissenting Judge (De Castro) assumed the validity of the asserted rule arguendo and proposed a new formulation of it fundamentally inconsistent with the formulation of the Judgment. (Id. 374.) Thus the particular paragraphs quoted above actually were concurred in by only six Judges while five of the other nine disagreed and four pointedly withheld their views.

4 Id., paras. 43 & 46 (Australia v. France), paras. 46 & 49 (New Zealand v. France).

5 The Court's recital of the Australian and French applications and the quoted dispostiif are at id. paras. 11 and 62 (Australia v. France) and 11 and 65 (New Zealand v. France).

6 The Permanent Court of International Justice has held that declarations of intention made before the court are binding. See German Interests in Polish Upper Silesia Case (Merits), [1926] PCIJ ser. A, No. 7, at 13. In The Mavrommatis Palestine Concessions Case (Merits), [1925] PCIJ ser. A, No. 5, at 37, the Court referred to a declaration made by “The British Government, through its Representative” before the Court: ”… That explicit declaration I, as such authorized representative of H.M. Government, and a member of it, here repeat that we intend to carry out whatever obligations, if any, the Court says are imposed upon us by the terms of the Lausanne Protocol.“ The Court said: “After this statement, the binding character of which is beyond question …” Cf. also the Court's conclusion that despite some doubts of the authority of a Swiss representative to bind his government to an offer made to France during court proceedings, “[H]aving regard to the circumstances in which this declaration was made, the Court must however regard it as binding on Switzerland.” Free Zones of Upper Savoy and the District of Gex, [1932] PCIJ ser. A/B, No. 46. However, the Mavrommatis declaration seems to have been merely a reiteration of British obligations under other instruments and the Free Zones declaration was analyzed by Lord McNair and the International Law Commission in such a way as to cast doubt on the declaration as a source of the Court's view of the law.

7 1 International Military Tribunal, Trial Of The Major War Criminals 27 at 36, 38 (1947).

8 Id. 171 at 192.

9 International Status of South-West Africa, Advisory Opinion, [1950] ICJ REP. 128 at 135.

10 Legal Status of Eastern Greenland, [1933] PCIJ ser. A/B, No. 53.

11 Id. 53.

12 The United States specifically rejected the view that the Austrian declaration had independent legal force. The relevant documents are analyzed in 1 whtteman, Digest Of International Law 348-55 (1963) and 3 id. 462-77 (1964). The Laotian declaration was apparently regarded as a mere internal document of Laos until it was “recognized” formally and coupled with express reciprocal undertakings by the thirteen other countries involved in Laotian affairs on July 23, 1962. See 1 id. 355-57.

13 For the legal implications of the distinction between an assertion of fact or law and an assertion of future intention, see the discussion of estoppel infra p. 16.

14 Or, in some cases, until the offeree has begun the sought-for performance or otherwise foreseeably relied to his legal detriment on the reasonable expectation that the offer would remain open; but this is not the place to discuss the technicalities of the international law of treaty formation or the municipal law of contract formation. Some theoretical aspects of the matter will be discussed below.

15 See 3 Whiteman, supra note 12, at 1076-1130. The nationalization decree is reproduced in translation at 1097-99.

16 See annex to Egyptian letter addressed to the Secretary-General of the United Nations, UN Docs. A/3576, S/3818 April 24, 1957. The Egyptian Declaration is registered with the United Nations Secretariat as if it were an “international agreement“ under Article 102 of the UN Charter and has been reproduced as if a treaty in 265 Unts 299. See also 3 Whtteman, supra note 12, at 1123-26.

17 Id. 1126.

18 On the general topic, see Goodrich, Hambro, And Simons, Charter Of The United Nations 610-14, esp. 612-13 (3rd rev. ed. 1969).

19 11 SCOR (776th mtg) para. 59 (1957). The quoted language is in the original French for precision. The official translation is as follows: … [A] unilateral declaration, even if registered, cannot … be anything more than a unilateral act, and we must draw the conclusion from these findings that just as the Declaration was issued unilaterally, it can be amended or annulled in the same manner.

20 1 Schlesinger, Formation Of Contracts 77 (1968). Despite the limited number of legal systems dealt with by Schlesinger, most international lawyers today would agree that the legal systems studied by him and his colleagues embody the general principles of law deemed most persuasive by statesmen and analysts of public international law.

21 Cf. the Uniform Commercial Code (UCC), which has been adopted with some variations by each commercial law jurisdiction in the United States except Louisiana, sec. 2-204, which seems to envisage the formation of a contract without any specific “offer” and “acceptance,” and sees. 2-206 and 2-207 which seem to presume that unilateral acts that can properly be labeled “offer” and “acceptance” will underlie any contract.

22 To avoid confusion, hereafter the word “declaration” or the phrase “declaration of intention” will be used, following the example of the ICJ, in discussion of the international law; the word “promise” will be used only when municipal law implications are intended.

23 E.g., Pfluger, Die Etnseitigen Rechtsgeschäfte Xm. Völkerrecht (1936).

24 E.g. Garner, , The International Binding Force of Unilateral Oral Declarations, 27 AJIL 493 (1933)Google Scholar. The two precedents Garner finds to support his approval of the PCIJ conclusion in the Eastern Greenland case involved positing a context of negotiations, as indeed did the Court's approach to the Ihlen declaration. In one, Kulin v. Etat Roumain, (7 Rec. Des Décisions Des Tribunaux Arbitraux Mixtes 138 (1927)), the issue involved conflicting assertions during negotiations between Romania and Hungary regarding the proper interpretation of the 1920 Treaty of Trianon (12 DE Martens, Nouveau Rec. Gén. (3rd ser.) 423), and the other involved the Lytton Commission of Inquiry report adopted by the League Assembly on February 24, 1933, and Japanese assertions regarding the legal weight to be given some Chinese statements made to Japan during inconclusive negotiations in 1905 (League of Nations Document C.663.M.320.1932.VII, Oct. 1, 1932, at 45-45). However, these instances involved promises made during the course of negotiations but not integrated into the document emerging as a final text from that negotiation. Their municipal law analogue is not to unilateral promises but to the “parole evidence rule.” See Mitchell v. Lath 247 N.Y. 377, 160 N.E. 646 (1928).

25 Schwarzenberger, , The Fundamental Principles of International Law, 87 Rec. Des Coras 190 at 312-14 (1,1955).Google Scholar

26 The British Government in 1837 refused a Persian request to recognize the dependency of Afghanistan on Persia, alleging instead that British recognition of an independent Afghanistan in 1809 precluded such an action. It would seem that the British action involved “good faith” in the sense of refusing to characterize a situation in a way the British felt the facts would not warrant. It is hard to see the relationship of the precedent to unilateral declarations in general. The correspondence is at 25 BFSP 1267.

27 The United States Government in 1861-1865 simultaneously asserted a right under municipal law and a right under international law to close ports in the Confederate States. Since the basis adduced for the exercise of the belligerent right was inconsistent with the basis for the assertion of direct governmental authority, the two assertions were inconsistent. If “good faith” has any direct impact in international law, it is to forbid a state taking simultaneous inconsistent positions. Cf. Rubin, , Some Legal Implications of the Pueblo Incident, 18 ICLQ 961 (1969)Google Scholar; 49(1) OREGON L. REV. 1 (1969). But the analogy between such cases and unilateral declarations sought to be considered binding as contracts seems strained.

28 Cf. 1969 Vienna Convention on the Law of Treaties, UN Doc. A/CONF.39/27, 63 AJIL 875 (1969), Arts. 56, 61-64.

29 Cf. French reaction to the Egyptian declaration of 1957 cited supra note 19. A number of publicists granting some legal effect to unilateral declarations of intention consider that later inconsistent declarations would have equivalent legal effects, without any violation of the principle of good faith. Cf. Dehaussy, La Déclaration Egyptienne de 1957 sur le Canal de Suez, 6 Ann. Franchise De Dr. Int. 1960 at 169 (1960), and fasc. 10 and 14 in 1 Jurisclasseur De Dr. Int. (1960); Venturini, La Portée et les Effets Juridiques des Attitudes et des Actes Unilatéraux des Etats, 112 Rec. Des Cours 363, at 403-04 (II, 1964); JaquE, ElEments Pour Une Théorie De L'acte Jurtoique En Droit International Public 321 et seq. (1972); Note, The Effect of Unilateral Acts in International Law, 2 N.Y.U.J. Of Int. L. & Politics 333, 339-41 (1969), attributed to A. Gigante in 6 VerzijL, International Law In Historical Perspective 111 (1973). Per contra, E. Suy, Les Actes Jurtdiques Unilatéraux En Droit International Public 149-51 (1962). Suy seems to conclude that the only way unilateral declarations lose legal effect is by a change in the essential conditions envisaged by the declarant state. He cites no examples of state practice to support this conclusion and his views seem to be based solely on those of other publicists, principally Sir Gerald Fitzmaurice, whose work will be analyzed more fully below.

30 Note attributed to Gigante, supra note 29, at 346-47. Hints of an equivalent approach are in Jaqué, supra note 29, at 329 et seq.

31 Cf. SUY, supra note 29, at 128.

32 Fitzmaurice, , The Law and Procedure of the International Court of Justice 1951-4: Treaty Interpretation and Other Treaty Points, 33 BYIL 230-32 (1958).Google Scholar

33 Anglo-Iranian Oil Company case, [1952] ICJ REP. 93.

34 Cf. SUY, supra note 29, at 149; Note (Gigante?) supra note 29, at 334, 342, 350.

35 [1962] ICJ REP. 6.

36 Fitzmaurice, supra note 32, at 232.

37 Ibid.

38 Id. 230.

39 Such as SUY, supra note 29, at 149-51

40 Kiss, , Les Actes Unilatéraux dans h. Pratique Fran;aise de Droit International, 65 Rev. Gén. De Dr. Int'l Public 317-23 (1961).Google Scholar

41 Argument presented for France by M. Basdeyant in the Free Zones of Upper Savoy and Gex case, [1932] PCIJ ser. C, No. 58, at 586-88.

42 Black's Law Dictionary 1751 (4th ed. 1968) and cases cited there.

43 Corbin ON Contracts 705-11 (§§752-53) (1952); Restatement Of The Law Of Contracts §297 (1932).

44 Clark v. West, 193 N.Y. 349, 86 N.E. 1 (1908); Lee v. The Casualty Company of America, 90 Conn. 202, 96 A. 952 (Sup. Ct. Err. 1917).

45 Cf. City Stores Co. v. Ammerman, 266 F.Supp. 766 (D.C.D.C. 1967).

46 As in, e.g., 1961 Vienna Convention on Diplomatic Relations, Tias No. 7502; 500 Unts 95; 55 AJIL 933 (1963). Art. 32.

47 See Corbin, supra note 43, at §111, and Schlesinger, supra note 20, at 72, 1256, as to the municipal law requirements of “consideration” or “causa.” Judge de Castro in his Dissenting Opinion in the Nuclear Tests cases argues that there is an equivalent requirement at international law to make a promise binding. Nuclear Tests cases, supra note 2, at 374. Various equivalents have been suggested, such as the “mutual benefit” term of the China-India “Panch Shila” Agreement of 1954 (Government OF India, Notes, Memoranda And Letters Exchanged And Agreements Signed Between The Goverments Of India And China 1954-1959 98 (1959)) but this is not the place to analyze the degree to which various states and publicists have urged such formulae. There is no requirement equivalent to “consideration” or “causa” mentioned in the 1969 draft Vienna Convention on the Law of Treaties.

48 Art. 38(l)(c). See Ch. II of H. Lauterpacht, Private Law Sources And Analogies Of International Law §29, at 67-71 (1927).

49 Venturini, supra note 29, at 403-04

50 See Gross, States as Organs of International Law and the Problem of Autointerpretation, in Lepsky (ed.), Law And Politics In The World Community 59 (1953).

51 The more natural result of the approach positing uncertainty would seem to be a holding of nonjusticiability. There is no necessary conflict between the theoretical position that all contentions between states can be resolved by the application of rules of international law (cf. H. Lauterpacht, THE Function Of Law In The International Community 134-35 (1933), and that in a horizontal legal order some disputes are inevitably withheld from third-party settlement ( Brownhe, , The Justiciability of Disputes and Issues in International Relations, 42 BYIL 123 (1967)Google Scholar).

52 Cited note 35 supra

53 Id. 51.

54 Id. 39.

55 Id. 42. Sed quaere in the light of section 6 above whether it is correct to assume a public policy of avoiding controversy.

56 Id. 52, esp. 62-65.

57 Id. 63-64.

58 Id. 101, at 144. Sir Percy did not expressly draw the obvious inference that Judge Alfaro was using a different yardstick to measure the legal effect of Thailand's silence than to measure Cambodia's.

59 Id. 144.

60 Note (Gigante?), supra note 29, at 349-50.

61 Principally Lord Denman's definition in Packard v. Sears [1837] 6 A & E 469 at 474: Where one by his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time , …

62 1 R.I.A.A. 369 (1948).

63 In that case, Justice Taft in fact held the concept of “equitable estoppel” inapplicable because no detrimental reliance by Costa Rica could be shown to have resulted from the British act of nonrecognition, and it is clear that no other aspect of the concept of estoppel was felt to be more directly pertinent to the facts of the case.

64 McNair, , The Legality of the Occupation of the Ruhr, 5 BYIL 17 at 35-36 (1924).Google Scholar

65 33 BYIL 11, 15-16 (1957). Of course, there is no “principle of unjust enrichment“ known to any civilized legal system except to forbid it. In Anglo-American law the term covers a very complex area of law which for historical, not logical, reasons has been classified with the usual discussions of the common law of contract. The term has been attached to some situations, like the performance of a professional service to a person unable to signify assent (Cotnam v. Wisdom, 83 Ark. 601, 104 S.W. 164 (1907)), the performance of some second party's duty by one threatened with injury by the second party's default (Sommers v. Putnam Board of Education, 113 Ohio St. 177, 148 N.E. 682 (1925)), and some cases in which a contract being void for mutual mistake the normal rules would lead to the entire loss being borne by an innocent party (Vickery v. Ritchie, 202 Mass., 247, 88 N.E. 835 (1909)), with the result that the court creates a fictitious “contract” (normally called “quasi-contract“) between the parties and awards the “impoverished” party damages equal to the reasonable value of his services. This is not the place to analyze the use of the concept in detail. In the A.L.I. Restatements the law of unjust enrichment has been codified not in the Restatement of the Law of Contracts but in the Restatement of the Law of Restitution (§§112-14) (1937). Lord McNair argues in favour of a general principle of law relating to unjust enrichment through the precedent of the Lena Goldfields arbitration of 1930 (5 ANN. DIG. 1929-1930, Cases 1 and 258), in which the tribunal held that the existence of rules relating to disgorging property to which a party has no just right, being found in English, French, German, and Scots law, was adequate as a basis for applying the concept to measure the damages resulting from a Soviet Russian breach of contract. The tribunal also noted that “ordinary legal principles” would lead to identical damages. It seems clear that the “principle of unjust enrichment” as used in the Lena Goldfields arbitration is a minor and probably unnecessary part of the law on the measure of damages. The “principle” does not relate to estoppel or unilateral declarations at all, since the existence of a violation of international law (like the breach of contract in the Lena Goldfields arbitration) is necessary before any question of damages arises, while the binding force of unilateral promises turns on the fundamental prior question of whether there has been a breach of the law at all, i.e., whether an “enrichment” has been “unjust.“

66 The closest to an incisive analysis may be that of Judge Jerome Frank in Martin v. Campanaro, 156 F.2d 127 (2d Cir. 1946), or Note, Quasi-Contractual Recovery for Part Performance of a Contract, 44 Harv. L. Rev. 623 (1931). See also the treatment of “unjust enrichment” as a measure of damages in “bad faith” cases, in Summers, “Good Faith” in General Contract Law and the Sales Provisions of the Uniform Commercial Code, 54 Va. L. Rev. 195 (1968). The literature on “unjust enrichment” in Anglo-American contract law is vast.

67 T Mcnair, The Law Of Treaties 485-89 (1961).

68 Id. 489.

69 Bowett, , Estoppel Before International Tribunals and its Relation to Acquiescence, 33 BYIL 176 (1957).Google Scholar

70 Lauterpacht, supra note 48, at 203-11, esp. 203-06.

71 In two cases the positions which the precluded state asserted involved admissions of preexisting liability; in three they involved positions held to in bilateral negotiations; in one the question was one of treaty interpretation only; and in the last it was a question of res judicata, which Sir Hersch considered a species of estoppel. An eighth case, the Tinoco Arbitration (cited note 62 supra) was taken by Lauterpacht as evidence that “equitable estoppel” would have been applied as a matter of public international law if Justice Taft had been persuaded that the facts justified resort to that concept.

72 Cf. Corbin, supra note 43, at §§193-208, esp. §§193 and 204.

73 Cf. Summers, supra note 66 passim.

74 The “reliance” theory has ancient roots (see Lord Wilmot's and Justice Yates's opinions in Pillans and Rose v. Van Mierop and Hopkins, 97 Eng. Rep. 1035 (K.B. 1765)) but languished during the 19th century as the formalism of “consideration“ came to be seen as a stronger basis for predictability and therefore a better basis than “reliance” for deciding which commercial promises should be enforced at law and which should be disregarded. Central London Property Trust Ltd. v. High Trees House Ltd., [1947] 1 K.B. 130, is the leading English case relating to promissory estoppel and has spawned much learned comment. See works cited in Kessler & gilmohe, Contracts Cases And Materials 498 (2d ed. 1970). The leading American cases basing recovery on “promissory estoppel” and Restatement (1932) section 90 include Feinberg v. Pfeiffer Co., 322 S.W. 2d 163 (1959); Hoffman v. Red Owl Stores, 26 Wis. 2d 683, 133 N.W. 2d 267 (1965); Goodman v. Dicker (C.A.D.C.) 83 U.S. App. D.C. 353, 169 F.2d 684 (1948); Chrysler v. Quimby, 51 Del. 264, 144 A.2d 123 (1958). Other cases occasionally cited as illustrating inpromissory estoppel have been relegated by most analysts to other aspects of the law of contract, such as “firm offer” cases. Cp. Baird Co. v. Gimbel Bros. (C.A. 2d Cir.) 64 F.2d 344 (1933) (Learned Hand rejecting the applicability of promissory estoppel and upholding the power of an offeror to revoke his offer despite the offeree's acting to his detriment in reliance on its remaining open); Drennan v. Star Paving Co., 51 Cal.2d 409, 33 P.2d 757 (1958) (Justice Traynor in equivalent facts applying Restatement (1932) sec. 90 to hold the offeror to his offer); see UCC sec. 2-205. Many cases exist in which courts simply refuse to apply promissory estoppel where advocates of the doctrine would argue for it. See, in addition to Baird v. Gimbel supra, Pitts v. McGraw-Edison Co. 329 F.2d 412 (6th Cir. 1964); Tatsch v. Hamilton- Erickson Mfr. Co., 76 N.M. 729 P.2d 187 (1966). In addition to some “firm offer“ cases, the cases applying promissory estoppel doctrine seem to involve only very unequal bargaining power or business franchises, with the superior power or franchisor withdrawing from a negotiation after having induced the weaker or franchisee to take some major detrimental action.

75 See note 47 supra. Both Corbin and Schlesinger also view “consideration” as a formality rather than an independent requirement. There are many articles on both topics; the works cited in Kessler and Gilmore (supra note 74 at 203-06) provide a good starting point.

76 Supra note 69.

77 MacGibbon, , Estoppel in International Law, 7 ICLQ 468 (1958).Google Scholar

78 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. The Netherlands), [1969] ICI Rep. 3, at 26 (para. 30). Having regard to these considerations of principle, it appears that only the existence of a situation of estoppel could suffice to lend substance to this contention,— that is to say if the Federal Republic were now precluded from denying the applicability of the conventional regime, by reason of past conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that regime, but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. It may be of note that the word “estoppel” appears also in the parallel French text, rather than the word “preclusion“: ”… seule 1'existence d'une situation d'estoppel pourrait Stayer pareille these …“

79 Fifth Report on the Law of Treaties, UN Doc. CN.4/130, reprinted in A/CN.4/ Ser.A/1960/Add.l, [1960] 2 Y.B. INT. L. COMM. 69-107.

80 Id. 81 (Art. 22.) See also draft Arts. 11 and 12 at 79.

81 The “separate issue” involved adherences by unilateral act to a preexisting treaty among others. See id. 105 (comment on draft Art. 22), 91 (comment on draft Art. 12).

82 Id. 79 (Art. 12(3) referring the reader to the later material in the commentary), 81 (Arts. 20(4) and 22(2)), and 103-05 (commentary to draft Arts. 20(4) and 22).

83 Id. para. 90 at 104.

84 Id. para. 93 at 105.

85 See Waldock's comment as Special Rapporteur, UN Doc. A/CN.4/167, reprinted in A/CN.4/Ser.A/1964/Add.1, [1964] 2 Y.B. INT. L. COMM. 27.

86 The English translations given by the ICJ differ; the original French in the passage quoted is the same in both notes. The differences in translation are not significant for present purposes.

87 [1974] ICJ REP. 265-66 (paras. 34-40) (Australia v. France), 469-71 (paras. 34-43) (New Zealand v. France). The Judgment in the case of New Zealand v. France includes additional material relating to New Zealand's responses to the second French declaration, the Note of July 10, 1974, and a French clarification dated July 1, 1974. Since this additional correspondence was not “public” and was given in the course of direct correspondence between states, its relevance to any issues relating to unilateral declarations as defined by the Court in its Judgment seems marginal.

88 Id. 267 (para. 41) (Australia v. France), 472 (para. 44) (New Zealand v. France).

89 Cf. The North Sea Continental Shelf cases, supra note 78, at 25 (para. 28): As regards these contentions [that the Federal Republic of Germany assumed by conduct, public statements, and proclamations the obligations of a conventional regime not adhered to formally by Germany], it is clear that only a very definite, very consistent course of conduct on the part of a State in the situation of the Federal Republic could justify the Court in upholding them. The Court did not find such conduct to exist.

90 Article 92 of the UN Charter declares the Court to be such an organ. Article 102(2) provides: No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.

91 Cf. Dissenting Opinion of Judge De Castro in the Nuclear Tests cases 372 at 375 (Australia v. France).

92 The only publicists of note who have taken the position adopted by the Court are Suy, whose precedents do not support his position, and whose principal citation to Sir Gerald Fitzmaurice seems to have mistaken Fitzmaurice's evolving views, and Judge Alfaro in a Separate Opinion, which in context appears idiosyncratic, which was specifically rejected by at least two other judges in the same court, and which was clearly overborne by a large majority in the ICJ seven years later. Many other publicists have disagreed, as has been seen, and most who have appeared to address the question turned out on closer analysis to have had other things in mind.

93 “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.“

94 Cf. Sur, Les Affaires des Essais Nucleaires … , 80 Rev. Gén. De Dr. Int. Public 972(1975).

95 An analysis of the evolution of the Court from a rather conservative, positivistoriented tribunal concerned with the stability of the international legal order to a “major-purpose-oriented” tribunal with little regard for the traditions of the law, see Gross (ed.), The Future Of The International Court OF Justice Ch. 18 (1976).

96 Recent publicists approving the substance of the rule include Carbone, Promise in International Law: A Confirmation of its Binding Force, 1 The Italian Yearbook OF international law 166 (1975), and works cited in notes 4-8 therein; Franck, Word Made Law … 69 AJIL 612 (1975); McWhinney, International Law-Making and the Judicial Process … 3 Syracuse J. Of Int'l L. And Commerce 9 (1975).