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The Twilight Existence of Nonbinding International Agreements

Published online by Cambridge University Press:  27 February 2017

Oscar Schachter
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Abstract

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Type
Editorial Comment
Information
American Journal of International Law , Volume 71 , Issue 2 , April 1977 , pp. 296 - 304
Copyright
Copyright © The American Society of International Law 1977

References

1 The full name is the Final Act of the Conference on Security and Cooperation in Europe. The text of the document signed in Helsinki on August 1, 1975 is reproduced in 14 ILM 1293 (1975) and in 73 Dept. State Bull. 323 (1975).

2 14 ILM 1325 (1975).

3 id.

4 Russell, , The Helsinki Declaration: Brobdingnag or Lilliput, 70 AJIL 242, 247, 248 (1976)Google Scholar.

5 Id. at 246.

6 1 O’Connell, D. P., International Law 195 (2nd ed. 1970)Google Scholar; Mcnaih, A., Law of Treaties 6 (1961)Google Scholar.

7 International Status of South–West Africa, Advisory Opinion [1950] ICJ Rep. 128 at 140. For a similar view expressed recently by the Legal Adviser of the State Department in connection with the Case Act, see infra note 22.

8 See Münch, , Non–Binding Agreements 29 Zeitschrift Für Ausländisches Öffentliches Recht Und Völkerrecht 1 at 3 (1969)Google Scholar. During the Helsinki Conference, the USSR, Switzerland, and Romania objected to including an explicit statement in the text that the Final Act was not a treaty or international agreement susceptible of registration under Article 102. See Russell, supra note 4, at 247.

9 O’Conneix, supra note 6, at 199–200. But other jurists have noted that vague and ill–defined provisions appear in agreements which do not lose their binding character because of such indefiniteness. See Reuter, P., Introduction Au Droit Des Traités 44 (1972)Google Scholar; Fitzmaurice, G. G., Report on the Law of Treaties to the International Law Commission. [1956]Google Scholar 2 Y.B. Int. Law Comm. 117, UN Doc. A/CN.4/101 (1956). The latter commented that “it seems difficult to refuse the designation of treaty to an instrument—such as, for instance, a treaty of peace and amity, or of alliance— even if it only establishes a bare relationship and leaves the consequences to rest on the basis of an implication as to the rights and obligations involved, without these being expressed in any definite articles.” Id.

10 Statements by officials of the British and U.S. Governments indicated that they did not consider the Yalta and Potsdam agreements as binding. For the U.K. views, see references in Münch, supra note 8, at 5 n. 22. For the U.S. position, see infra note 11. A contrary point of view was expressed in 1969 by a representative of the USSR at the Vienna Conference on the Law of Treaties. He declared that the Yalta and Potsdam agreements as well as the Atlantic Charter provided for “rights and obligations” and laid down “very important rules of international law.” UN Doc. A/Conf.39/11 Add. 1, at 226 (para. 22). Sir Hersch Lauterpacht considered that the Yalta and Potsdam agreements “incorporated definite rules of conduct which may be regarded as legally binding on the States in question.” 1 Oppenheim, International Law 788 (7th ed Lauterpacht, H., ed. 1948)Google Scholar. On the other hand, Professor Briggs suggested that the Yalta agreement on the Far Eastern territories may be considered only as “the personal agreement of the three leaders.” Briggs, , The Leaders’ Agreement of Yalta, 40 AJIL 376, at 382 (1946)Google Scholar.

11 The Yalta Agreement was published by the State Department in the Executive Agreements Series (No. 498) and was also publishéd in U.S. Treaties in Force (1963). However, in 1956 the State Department stated to the Japanese Government in an aide–mémoire that “the United States regards the so–called Yalta Agreement as simply a statement of common purposes by the heads of the participating governments and . . . not as of any legal effect in transferring territories.” 35 Dept. State Bull. 484 (1956). But see Briggs, supra note 10, for statements by the U.S. Secretary of State that an agreement was concluded by the leaders.

12 See memorandum of State Department quoted infra note 24. See also Sohn, L. and Buergenthal, T., International Protection of Human Rights 505–14, 946–47 (1973)Google Scholar.

13 See Münch, supra note 8, at 8; O’Connell, supra note 6, at 199. But cf. Reuter and Fitzmaurice, supra note 9.

14 The appellation of an instrument has but little evidentiary value as to its legal effect in view of the wide variety of terms used to designate binding treaties and the accepted rule that form and designation are immaterial in determining their binding effect. Thirty–nine different appellations for treaties are listed in Myers, , The Names and Scope of Treaties, 51 AJIL 574 (1957)CrossRefGoogle Scholar.

15 In this gentlemen’s agreement, the Japanese Government agreed to take administrative measures to check the emigration of Japanese laborers to the United States on the understanding that the United States would not adopt discriminatory exclusionary legislation against Japanese, “stigmatizing them as unworthy.” [1924] 2 Foreign Relations of the United States 339–74. The agreement came to an end when Congress enacted the 1924 immigration law which did discriminate against Japanese. Id. at 374–93.

16 The 1946 London agreement was described in the General Assembly as “an oral agreement . . known as a gentlemen’s agreement, because it was an agreement by word of honour and was not recorded in any document” . . . “whereby the seats were to be distributed among the non–permanent members of the Security Council in accordance with a fixed plan.” 2 Repertory of United Nations Practice 8 para. 16 (1955). Reference to the gentlemen’s agreement on the distribution of seats in the International Law Commission was made recently in the UN General Assembly in connection with the election of members of the Commission on November 17, 1976. See UN Doc. A/31/PV.68 at 7, 11. For earlier references to the gentlemen’s agreement on distribution of I.L.C. seats, see Briggs, H., The International Law Commission 33–42 (1965)Google Scholar.

17 The suggestion was made by Reuter, supra note 9, at 44.

18 In logic, this principle is known as the theory of types. See Bertrand, Russell, An Inquiry Into Meaning and Truth 75–76 (1940)Google Scholar.

19 At the Vienna conference a Swiss amendment was proposed to exclude nonbinding agreements such as “political declarations and gentlemen’s agreements.” In the opinion of the Swiss legal adviser (Bindschedler), such nonbinding agreements were governed by international law and had legal consequences and therefore would not be excluded by the definition in Article 2. The amendment was not adopted presumably because most representatives thought that such nonbinding agreements were not governed by international law. Taking a different position, the USSR representative opposed the Swiss amendment because he considered that some of the agreements referred to by the Swiss delegate should be covered by the Vienna Convention (mentioning the Atlantic Charter, Yalta, and Potsdam agreements). See supra note 10. As indicated by its preparatory work, the International Law Commission intended to exclude the nonbinding agreements from the scope of the Vienna Convention and thought this would be done by the definition of international agreements as those governed by international law. See Report of the International Law Commission to the General Assembly [1959] 2 Y.B. Int. Law Comm. 96–97, UN Doc. A/4169 (1959). For earlier references, see Brierly, Report [1950] id. 228, UN Doc. A/CN.4/23 (1950); Lauterpacht, Report [1953] id. 96–99, UN Doc. A/CN.4/63 (1953).

20 Münch also suggests the principle of estoppel, supra note 8, at 11. On estoppel in international practice, see MacGibbon, I. C., Estoppel in International Law 7 Int. Comp. L.Q. 468 (1958)CrossRefGoogle Scholar; Rubin, A. P., The International Legal Effects of Unilateral Declarations 71 AJIL 1 (1977)CrossRefGoogle Scholar.

21 Pub. Law 92–403, 1 U.S.C. 112(b) (1972).

22 Memorandum by the State Department Legal Adviser to “Key Department Personnel” dated March 12, 1976 on “Case Act Procedures and Department of State Criteria for Deciding What Constitutes an International Agreement.” (The memorandum was unclassified and transmitted to other government agencies.)

23 Id. at 3.

24 Id. at 4. The memorandum states “For example, a promise ‘to help develop a more viable world economic system’ lacks the specificity essential to constitute a legally binding international agreement. At the same time, undertakings as general as those of Articles 55 and 56 of the U.N. Charter have been held to create internationally binding agreements (though not self–executing ones).”

25 A pertinent example would be the “absolute assurances” given by President Nixon in letters to President Thieu of South Vietnam that the United States would take “swift and severe retaliatory action” if Hanoi failed to abide by the terms of the Paris Agreement and that in the event of violations the United States would “respond with full force.” New York Times, May 1, 1975, at 16.

26 Secretary of State Kissinger in testimony to the Senate Foreign Relations Committee on the United States undertakings in connection with the Sinai Disengagement Agreements of 1975 noted that certain of the undertakings were “not binding commitments of the United States” but he went on to say that that “does not mean, of course, that the United States is morally or politically free to act as if they did not exist. On the contrary, they are important statements of diplomatic policy and engage the good faith of the United States as long as the circumstances that gave rise to them continue.” 73 Dept. State Bull. 613 (1975).

27 ICJ Rep., supra note 7, at 139.

28 De Gaulle’s remark was quoted in a lecture by Dr. Shabtai Rosenne at the 27th Congress of the Association of Alumni of the Hague Academy of International Law in 1975. The source cited by Dr. Rosenne was a letter in The Economist (London), March 18, 1972, at 6.

29 Illustrative of such efforts are the official and nonofficial activities in several countries to monitor and comment on the implementation of the Helsinki Final Act, especially in regard to the “Third Basket” or human rights provisions. There are indications that these efforts have been a factor in producing changes in the national policy of some signatories to conform to the engagements of the Final Act. A conference of signatories is to be held in Belgrade in 1977 on the implementation of the Helsinki accord.