International agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties play an important role in




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Oliver Landwehr A Fresh Look at Soft Law

Hartmut Hillgenberg*1


Abstract

International agreements not concluded as treaties and therefore not covered by the Vienna Convention on the Law of Treaties play an important role in international relations. Often states prefer non-treaty obligations as a simpler and more flexible foundation for their future relations. The difference lies mainly in the parties' wish to model their relationship in a way that excludes the application of treaty or customary law on the consequences of a breach of obligations. This restriction does not justify discarding such agreements as being of a `political' or `moral' nature only. It would appear more appropriate to consider the extent to which the parties chose to bind themselves and what legal consequences they wanted to attach to their agreement, even though non-treaty agreements are not a source of law in the sense of Article 38 para. 1 of the Statute of the International Court of Justice. The relationship may best be described as a self-contained regime whose characteristics depend on the parties' intentions in the specific case. The introduction of some of the rules of treaty law and general principles of law into that regime may be appropriate. Considerations of good faith may also help to integrate and supplement the parties' agreement.


And when that good man saw how things were, he very sensibly obeyed the promise he had freely given.

Geoffrey Chaucer, The Canterbury Tales, General Prologue


A Fresh Look at Soft Law


1 Introduction


Political documents have long been adopted not only in the form of treaties, but also as non-treaty arrangements. And states have treated such arrangements with the utmost seriousness. As early as 1934, Karl Strupp2 suggested that greater attention should be given to this type of agreement. Wengler has considered the subject in depth several times over the past three decades. In 1995 he wrote:3 `what is involved in such agreements cannot be ascertained from statements by the foreign office lawyers, nor has it really been explained in the literature'. To tackle the subject undoubtedly constitutes quite a challenge. It takes us beyond the safe bounds of the legal sources canonized in Article 38 of the Statute of the International Court of Justice and leads us into difficult and controversial dogmatic terrain.


There is quite clearly a broad area of situations in which states enter into commitments without concluding a formal treaty under international law. I will refer to these arrangements as `non-treaty agreements', although I find the term `soft law', attributed to McNair, very revealing precisely because it is a contradiction in terms. `Non-treaty agreement' is of course a general term which covers a variety of types of agreements. I will not attempt to develop a more exact definition for the purposes of this article.


Non-treaty agreements should, however, be differentiated from true gentlemen's agreements. These latter are personal pledges given by officials, on pain, as it were, of their reputation, but they are in no way binding on the officials' own states or, indeed, even on their successors in office.4 They concern personal, not government, action. The literature makes reference to an early example of such an agreement, when Lord Salisbury accepted the Russian occupation of Georgia `à titre personnel'.5 Rotter6 notes the 1954 Moscow Memorandum on the Austrian State Treaty, at least as far as the pledge on the part of the Austrians is concerned. Heads of government continue to make such pledges today. However, the concept of pledging one's own reputation, one's honour, cannot be simply transferred to relations between states.7 The oral London gentlemen's agreement of 1946 on the regional distribution of seats on the UN Security Council, the 1956 agreement on the same issue in the UN International Law Commission and the so-called Luxembourg compromise of 1966 on voting procedures in the EEC Council of Ministers would not constitute gentlemen's agreements in this sense. Similarly, a distinction should probably be drawn between non-treaty agreements and `inter-agency agreements', which are expressly intended to be binding only on governments or on specific ministries or authorities and not on states, as far as that is possible.


We should also distinguish between those non-treaty agreements that we shall be considering in this article and arrangements in the form of treaties which contain - either in whole or in part - obligations which cannot be implemented due to their lack of specificity; such arrangements are also often referred to as `soft law'. According to Lauterpacht,8 they are `provisions ... void and inapplicable on account of uncertainty and unresolved discrepancy'. Precision or lack thereof is not, however, an appropriate criterion for determining whether an agreement is binding or not.9 Thus, the commitment in Article 5 of the NATO Treaty of 4 April 1949 to the effect that each party will take `such action as it deems necessary' does not mean that this is not a genuine treaty obligation to be observed by all parties.10 Treaties remain treaties even if there are only minimal possibilities for responding to infringements or if the justification for non-fulfilment or withdrawal from the treaty is largely left to the discretion of the state under obligation. Admittedly, such treaties pose particular problems, as their fulfilment is largely subject to good faith. This may ultimately approximate them to non-treaty agreements.


2 Why Non-treaty Agreements?


The reasons for avoiding treaties proper are many and various.11 To name a few:

* a general need for mutual confidence-building;

* the need to stimulate developments still in progress;

* the creation of a preliminary, flexible regime possibly providing for its development in stages;

* impetus for coordinated national legislation;

* concern that international relations will be overburdened by a `hard' treaty, with the risk of failure and a deterioration in relations;

* simpler procedures, thereby facilitating more rapid finalization (e.g. consensus rather than a treaty conference);

* avoidance of cumbersome domestic approval procedures in case of amendments;

* greater confidentiality - drawing on his experience as a British legal adviser, Sinclair gives most emphasis to this aspect;

* agreements can be made with parties which do not have the power to conclude treaties under international law, such as the 1998 Belfast multi-party agreement on the future of Northern Ireland, or with parties which have only limited competence, such as Germany's Länder pursuant to Article 32(2) of the Basic Law;

* agreements can be made with parties that other parties to the agreement are not willing to recognize.


It may be necessary to conclude a non-treaty agreement simply in order to reach an agreement at all. The wholesale criticism that international law is thus being `softened'12 does not seem, in this author's opinion, to be justified. There is an equally strong danger of elusive results for both treaties and non-treaty agreements. Indeed, it has frequently been the case that a text which has been laid down at a conference as a non-treaty-binding standard gradually becomes, as awareness grows, a binding and possibly a `hard' obligation. The results of the Copenhagen Meeting on the Human Dimension (1990) concerning the protection of minorities have thus been inserted in Germany's `hard' neighbourhood agreements with Poland and the CSSR (1991, 1992). I also believe that concerns such as those put forward by Schwarzenberger of a `proliferation of a para-international law with negative implications for the credibility of international law as a whole'13 are somewhat exaggerated.


The fact that, when assessed realistically, the difference between a treaty and the binding `political' effect of a non-treaty agreement is not as great to a politician as is often thought may also play a role in the decision to opt for a non-treaty form of agreement. Even treaties, if they are not simply to exist on paper, are dependent on continuing cooperation between states. And when that willingness to cooperate diminishes, it is unlikely that attempts will be made to enforce them either in court or through reprisals - owing to anticipated costs and political consequences - even if such possibilities do exist from a legal point of view. Like non-treaty agreements, treaties may also rely on an intermediate stage in the development of relations. Rotter14 has posited some interesting ideas on the strategic reasons behind states' choice to conclude non-treaty agreements. In line with the `prisoner's dilemma', the behaviour of those involved will be made predictable for the joint (minimum) benefit, even without enforceable rules. Both non-treaty agreements and treaties are complied with to largely the same extent.15 `Soft law' may sometime be `pré-droit' in the sense that it leads to treaty obligations. This is, however, generally far from being its purpose.

3 Are Agreements Binding Only in the Form of a Treaty?


In terms of legal dogma there now arises the question: In the field of agreements intended by those involved to be normative, is there merely a choice between international treaties on the one hand and exclusively `political' or moral commitments on the other? Or is there an intermediate area covering non-treaty, but binding, agreements, which entail certain repercussions under international law that are less extensive than those incurred under treaties?


The subject is not new. It has been considered by Wengler16 as well as Münch,17 Viralli18 and Rotter19 (1971). It enjoyed a renaissance in the 1970s in relation to the CSCE, and as reflected in resolutions of the UN General Assembly and the UN International Covenant on Economic, Social and Cultural Rights. In 1984 Thürer20 delivered his inaugural lecture at the University of Zurich on the subject. A further impetus for such considerations came from the 1992 Rio Summit. Detailed studies by Hensel21 and Klabbers22 appeared in 1991 and 1996 respectively. Non-treaty multilateral agreements are of growing importance, particularly in the fields of international economic relations and environmental protection. It is not my intention here to discuss the question of whether agreements produce political or moral obligations for states, apart from their binding effect under international law. In its 1950 advisory opinion on the International Status of South West Africa,23 the International Court of Justice stated that it was not the Court's business `to pronounce on political or moral duties'. What we are concerned with is the legal force of such agreements.


First, it is necessary to clarify to what extent the Vienna Convention of 1969 on the Law of Treaties has an influence on the legal status of non-treaty agreements. For the Convention to be applied, the agreements in question must be treaties, with `treaty' meaning in particular that it is an `international agreement concluded between States ... and governed by international law' (Article 2(1)(a) of the Vienna Convention). The history of the drafting negotiations supports the view24 that the qualification `governed by international law' is intended to distinguish between treaties under international law and those under domestic law. Whether non-treaty agreements are excluded from the application of international law cannot be ascertained from the Convention. If the parties expressly or implicitly do not want a treaty, the provisions of the Vienna Convention do not apply. However, this does not necessarily mean that all non-treaty agreements only follow `political' or moral rules. There is no provision of international law which prohibits such agreements as sources of law, unless - obviously - they violate jus cogens.25

4 Excursus: Constitutional Law


Naturally, attention also needs to be given to the constitutional aspects of the issue. If agreements are of legal relevance only in the form of treaties, then the question of the need for parliamentary approval (laid down in Article 59(2) of the German Basic Law) does not arise for any other agreements. (Agreements entered into by the German Länder in accordance with Article 32(3) of the German Basic Law would require the approval of the Federal Government only if they took the form of a treaty governed by international law.) If, however, there were agreements producing limited legal consequences under international law, the application of constitutional provisions on the conclusion of treaties would not be ruled out in principle.26 As far as Germany is concerned, however, this possibility can be left aside. The Federal Constitutional Court allows the Federal Government's non-treaty dealings in international law to remain unaffected by Article 59(2) of the Basic Law.27 This, presumably, would equally apply to Article 32(3) of the Constitution. In the United States it is common practice to conclude non-binding agreements in order to avoid involving the Senate.28


5 Intention to be Bound by, and Freedom to Choose, the Form of Agreements


Let us return to the intention of parties to be bound by agreements they conclude: it is recognized that states are free to design the agreements they enter into. Can they conclude an agreement, then, with the same degree of obligation as holds in the case of international treaties - in other words, with consequences such as compensation and reprisals - with, however, the understanding that it is not an international treaty but merely a `political' agreement? This would seem to be impossible because the fact that the agreement supposedly lacks the force of a treaty contradicts the full intention of the parties to be bound by it.29 In terms of constitutional law, this could be an abuse of legal form in order to circumvent obligations imposed on a government by the constitution.


Non-treaty agreements are concluded, however, because the states involved do not want a full-fledged treaty which, in the event of non-fulfilment, would result in a breach of international law. This must be the assumption when the parties speak of a gentlemen's agreement (in the broad sense), a declaration of intent or a declaration of principle, and often even of a joint declaration or a memorandum of understanding. One indication of the lack of treaty force can be seen in instances where the parties expressly exclude registration in accordance with Article 102 of the Charter of the United Nations, as was the case with the very prominent example of the 1975 CSCE Final Act and with the 1997 Founding Act on Mutual Relations, Cooperation and Security between NATO and the Russian Federation. The resulting status is irrespective of whether the content of an agreement is of major significance for international relations. Thus, the Atlantic Charter of 1941, the Cairo, Yalta and Potsdam Agreements,30 the 1948 Universal Declaration of Human Rights, which has in the meantime acquired the force of customary international law, the 1982 Bonn Declaration on Hijacking31 and the Charter of Paris for a New Europe (1990) are not binding international treaties. There is much literature on the question of delineation between treaties and non-treaty documents. An agreement is contractually binding only if the parties want it to be.32 International law does not seem to contain a general assumption that agreements are of a treaty nature.33


I do not wish to dwell further on the question of delineation, nor to consider what may be the consequences if there is a dispute between the parties involved concerning whether their agreement amounts to a treaty or not; I would rather pursue the question of what is the legal significance of such non-treaty rules governing the interaction of states which the parties consider to be binding? Is it not premature to conclude that, in the absence of a treaty, there can be only an extra-legal or - to put it positively - only a political or moral commitment, which is of interest to jurists at most as a fact but not as a source of obligation? In 1976 Wengler wrote: `The question arises as to whether the strict legal/non-legal division applied in international law in analogy to domestic law could be outdated or wrong.'
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