1 While some particulars will be given of ecclesiastical legislation in Declaration form, limited space prevents discussion of other declarations by non-governmental organisations. A very special case, however, is mentioned (infra n. 30) which is particularly instructive as to the link between public and private in matters of use of maritime communication lines. On another topic the Code of Ethics of the contemporary medical services is laid down in the Declaration of Geneva, adopted 1948 at the World Medical Association's second Congress, to be observed by all national associations (Israel included) which are linked to it. Even ad hoc meetings of individuals may be wound up by Declarations and Proclamations, provided the participants are personalities of international standing. Two instances are the Declaration on the Problem of Disarmament, issued by Participants in the UN Conference on the Application of Science and Technology (1963), and the Declaration on Peace and Disarmament, presented (1970) to the UN by five Nobel Prize Laureates: UN docs. Note 3623, Press Releases M/1869 and M/1872.

2 Those which are of positive relevance today are the Declaration of Independence of the Netherlands of 26 July 1581, the Bill of Rights of Virginia of 12 June 1776, the Declaration of Independence of the 13 North American States of 4 July 1776, the Declaration of Rights of Man and the Citizen (France) of 14 July 1789, and the Proclamations of the Russian Soviets of 7–8 and 16 November 1917 (Text in Bunyan, J. and Fischer, H.H., The Bolshevik Revolution, Documents and Materials (Stanford, 1918) 121–22Google Scholar; see also the Decree on the Transfer of Economic Power to the Toilers, ibid. 277–9. A Declaration of Rights of the Peoples of Russia was proclaimed on 15 December 1917). Declarations of this kind began to have an impact on International Law in a novel sense when the idea struck root that human rights and freedom stood in a non-intermediate relation to International Law. For forerunners of human rights declarations, see the Declaration du droit des gens which Abbé Grégoire had submitted in 1795 to the French Convention. Recent texts are the Declaration of the International Rights of Man, adopted by the Institute of International Law, 1929 and the Bogota Declaration of the Rights and Duties of Man, adopted on 2 May 1948 (9th Conference of American States). It is noteworthy that these Declarations were more successful than attempts to define, also in declaration form, the fundamental rights of States, for which there is a model in a draft which the American Institute of International Law published in 1916, and in the 1933 Pan-American Convention on Rights and Duties of States. A parallel UN Draft Declaration, 1949, did not advance beyond the General Assembly “taking note”: Res. 375(IV).

3 Words to like effect, but not used as frequently, are Manifestos and Proclamations in national politics: cf., K.H. Peter, Proklamationen und Manifeste zur Weltgeschichte (Munich, undated).

4 To show the particular to be even more exceptional, it is this use of the term, and this alone, which has as its basis a formal instrument: The Hague Convention (III) Relative to the Opening of Hostilities, 1907.

5 Ottensosser, D., “Termination of War by Unilateral Declaration” (1952) 24 British Yearbook of International Law 435 ff.Google Scholar

6 This is a formality with a rich background in older State practice, creating definite rights and duties, as summed up in the 5th Hague Convention, 1907. During World War I, however, and more particularly in the inter-war period, a concept of Neo-neutrality emerged; see Cohn, Georg, Neo-Neutrality (Colum. U.P., 1939).Google Scholar At present the declaration of neutrality should be classified like any other statement of governmental policy, flexibly adapted to changing conditions. In one sense, however, they are in a category of their own—in so far as they provide or withhold services which are deemed legitimate in peacetime and forbidden in wartime. However, when providing services which are forbidden in wartime, they affect rights of other parties to the conflict, as well as of other neutrals. The Spanish Civil War is a rich source of instances.

7 See M. Virally's mise à point of the manner in which Declarations differ from recommendations as a generic concept in his article “La valeur juridique des recommendations des organisations internationales” (1956) 2 Annuaire français de Droit international 68: “autres ‘resolutions’ que peut prendre une authorité internationale: déclaration, par laquelle elle se fixe à elle-méme une conduite à observer à l'avenir, affirme la valeur de certains principes, reconnaît l'existence d'une situation particuliére, ou encore approuve ou désapprouve une action déjà accomplie”.

8 The present writer has extensively elaborated on the matter in International Group Protection (Leiden, 1968) 122, 164, 173, 178, 322 (hereinafter cited as I.G.P.).

9 Reference may be made to the practice of leading statesmen to conclude visits, or mark other occasions, by declarations or communiqués on points of policy, or on a prise de position which has to be recorded, because of its importance to one or all of them. One may tend to downgrade the degree of legal obligation inherent to them, a course the historian would hesitate to follow, for—in the sense of “cosa fatta, capo hà”—such statements lead to political assumptions and actions. It is in this sense that they are evalued in the Nuremberg arraignment of German Major War Criminals.

10 Reference is often made to a declaration which had been discussed but never made by the British Government in 1912, that should Germany attack France, Britain would go to her assistance, thus opening the sluices for the horrors of World War I. “But the Cabinet, and probably their parliamentary supporters were not prepared for so drastic a declaration”: Cecil, Robert, A Great Experiment (1941) 38.Google Scholar When Lord Haldane discussed matters with German leaders in Berlin, they were left to evaluate for themselves the reactions of other nations: two years later the war broke out.

11 Perkins, D., A History of the Monroe Doctrine (Boston, 1941).Google Scholar

12 The connection, particularly reflected in the rebus sic stantibus clause, accentuates that the semi-permanent or ephemeral fate of declarations is a function of overriding political principles and doctrines: the Monroe Doctrine is an example of the semi-permanent, Balance of Power (the practice of alliances); non-alignment, coordination of policies, collective security are, or might be, examples of the ephemeral, since none of them would substantiate an international claim, unless covered by explicit declaration and acceptance. They definitely would influence Positive Law, as Natural Law is known to do.

13 Thus, in the authoritative Soviet textbook—G. Tunkin, I., Theory of International Law (London, 1974)CrossRefGoogle Scholar—besides the Soviet declarations of 1917, only three others are quoted: of the League of Nations on aggressive wars, 1927, of the Conference of Jurists of Afro-Asian countries, Conakry, October 1962, and of the Cairo Conference of 1964.

14 Wroclaw, 1964.

15 See, e.g., the Helsinki Declaration on Principles Guiding Relations between Participating States, 1 August 1975, by 33 European States and by the Holy See and the United States; for complete text see (1975) 73 Dept. of State Bull., 323 or (1975) 14 ILM 1292; partial text in (1976) 70 A.J.I.L. 417.

16 For this reason such declarations differ from other treaties only in the choice of appellation. Failing ratification, two declarations on the Law of War—Brussels 1874, and London 1907—remained without legal effect.

17 There had been much sympathy for Armenia in the United States during World War I. At the end of 1919 a study mission arrived in the country to examine whether conditions for a U.S. mandate existed. Half a year later, the Allied Powers invited the U.S. to accept a mandate, but five weeks afterwards the U.S. Senate rejected President Wilson's request. In December all laws of Soviet Russia became binding on Armenia. The promise for an autonomous Kurdistan, with an option for later independence, was made most solemnly by inserting a provision to this effect in the Treaty of Sevres which, though signed by the Ottoman Empire and the Allies in 1920, was repudiated and superseded by the Treaty of Lausanne, 1923, when the Kurdish question had already come to be governed by quite different considerations. Some thought was also given to a National Home régime for the Assyrians in Iraq. One wonders how history would have developed, if…

18 Among the diplomatic papers of the time reference is also found to a Potsdam Declaration. In fact, however, this was not the document adopted by the Three Great Powers, but a Proclamation signed by the President of the U.S. and the Prime Minister of the U.K. and concurred in by the President of the National Government of China, and issued on 26 July 1945. The U.S.S.R. did not join in. The Proclamation was soon colloquially restyled Declaration. Truman, indeed, issued a statement, in August 1945 (Dept. of State Bull, of 19 August 1945, p. 321) to the effect that in response to a message by the U.S. Secretary of State, the Japanese Government had communicated that “H.M. the Emperor has issued an Imperial Rescript regarding Japan's acceptance of the provisions of the Postdam Declaration” and that “I [the President of the U.S.] deem this reply a full acceptance of the Potsdam Declaration”. There was a three weeks delay between offer and acceptance.

19 Reference may also be made to an example quoted in Dictionnaire Basdevant: a declaration of accession by Greece to the Monetary Convention of 1865, made in the form of a procès-verbal, the acceding party declaring its intentions and the receiving side—possibly the depositary—declaring the acceptance of the declaration. The response reads as follows: “Le Ministre Secrétaire d'Etat au département des Affaires étrangères de S.M. l'Empereur des francais … déclare que le Gouvernement impérial accepte formellement celle accession, tant en son nom qu'au nom des autres H.P.C.”

20 This is particularly the case in semi-closed multilateral conventions, the entry into force of which is reserved to one group of contracting parties, such as the Member States of the Council of Europe, where non-Member accession may be brought about by a decision of the Council of Ministers to this effect, once the Convention has so entered into force. Here a formal offer/acceptance relationship arises, documented in the diplomatic correspondence and the process leading to the Council's decision.

21 United States practice contains material on whether a State may on its own terms join an intergovernmental organisation, specifically the World Health Organization and the International Atomic Energy Agency; see Whiteman, 14 Digest 190 ff.; for earlier developments see Hackworth, 5 Digest.

22 Whiteman, op. cit. 186. When signing (and, later, ratifying the General Act of the International Conference at Algeciras 1906, the U.S. Government declared that “il ne prend sur lui aucune obligation ou responsabilité par rapport aux mesures qui pourraient être nécessaires pour la mise en exécution desdits Règlements et Déclarations”. Statements have also been attached to signatures of the Briand-Kellogg Pact, 1928, particularly by Great Britain.

23 Ibid., emphasis added.

24 A case of this kind, affecting Israel, is set out, and explained at some length, in Ambassador Rosenne's paper on the Red Shield of David (1975) 5 Israel Yearbook on Human Rights 41, the question being whether Israel's statement regarding its double position of “respecting the inviolability of the distinctive signs and emblems of the Convention” (that is, of the Red Cross, etc.), while using itself the “Red Shield of David as the emblem and distinctive sign of the medical services of her armed forces”, constituted a “reservation” which the other parties to the Convention are obliged to observe or a simple “unilateral declaration of policy without legal effect”. (This view, rather forgetful of the “ut res magis valeat” rule, was held, of all people, by a legal adviser of the ICRC: Pilloud, C., in Revue int. de la Croix-Rouge, 1958).Google Scholar Taken in its real content, the Israel position is to require from its neighbours, who had all, for reasons of the same kind, chosen a religious emblem of their own allegiance and rejected an emblem of another religious connotation, to recognise Israel's rejection of that same emblem, and recognise Israel's own emblem. It will be observed that, besides the intrinsic justification of this claim to a substantially identical attitude, the use of the emblem is no more than a technical “facility” for the observance of a human duty which exists irrespective of the emblem used and certainly irrespective of the emblem rejected.

25 The verbatim minutes of the 9th Plenary meeting of UNCIO, 25 June 1945, mention the fact that Commission I “did not recommend any text on withdrawal [from the Organisation] in the Charter. However, the absence of such a clause was not intended to impair the right of withdrawal under certain exceptional circumstances. Consequently, Commission I includes the following commentary on withdrawal”. The Soviet delegation was of the opinion—on the basis of the Soviet Union's constitutional provision on the right of secession of members of the Union—that “it is wrong to condemn beforehand the grounds on which any State might find it necessary to exercise its right of withdrawal from the Organization”. Thus, a reservation to a reservation was written into the Conference records. For some reason, one of the more important States which had not participated in UNCIO, Italy, found it useful to put its own views on record in 1965 (A/5914, S/6356). See Goodrich-Hambro, , Commentary on the U.N. Charter 143 ff.Google Scholar

26 Suy, E., Les actes juridiques unilatéraux en droit international public (Paris, 1962) 142 ff.Google Scholar; Rosenne, Sh., The Law and Practice of the International Court (Leyden, 1965) vol. I, 364 ff.Google Scholar

27 Keeping in mind the specific nature of the authority of a court and the process of adjudication before it, we would on this point not follow Professor Suy's inclusion of declarations on performance, made during hearings, in the Section on “promesses purement unilatérales” (op. cit., 129 ff.) but would see in them a sort of conjunctive declaration, the point of juncture being the prospective findings of the court. The cases mentioned are Mavrommatis and Certain German Interests in Upper Silesia, both before the P.C.I.J.

28 Sir Gerald Fitzmaurice even tried to formulate a rule on an Act of a Single state: Art. 22 of his Draft Code ((1959) I.L.C. Yearbook vol. II, p. 81): wherever the substance of the act is “a legally binding undertaking [which] will result for the declarant State—the other State or States concerned can claim as of right the performance of the declaration” (see infra n. 57). He goes on to hold that a Declaration is revocable, but should revocation affect a third State, “the declarant State shall be liable to pay compensation or to make other appropriate reparation in respect of the loss or damage caused” (ibid., para. 2). Later, he explains that “in the case of obligations assumed by means of a purely unilateral declaration, and consequently without any quid pro quo, it seems peculiarly difficult to deny the right of the declarant State in all circumstances to rescind or modify the declaration, unless this was itself stated to be irrevocable; but in the circumstances mentioned in the para. 2, it may be reasonable to expect the payment of compensation or the making of other appropriate reparation” (ibid., 105, para. 93).

29 The protection of the “unorganisables” who ipso facto unable to negotiate and conclude treaties is one of the burning problems of contemporary human rights; see I.G.P. 27 ff.

30 See the Declaration Providing for the Establishment of a Suez Canal Users Association, of 21 September 1956; text in Conf. Doc. SUEZ II/56/D/10; reprinted in Dept. of State Publication 6392, The Suez Canal Problem, a Documentary Publication (1956) 365. The Association never came to life.

31 The qualification suo iure should show that cases may arise in which the international entity obtains some treaty position by virtue of an ad hoc functional assignment, as was the case in the otherwise abortive arrangement of 1924 according to which, upon identical requests by Bulgaria and Greece, the League of Nations should have intervened in a specific procedure on minority problems, the League Council having decided to accept this function and had both its President and its Secretary General sign the document, as well as register (No. 738, 739) and publish it (LN. TS. vol. XXIX). However, the proposal was rejected by the Greek National Assembly on 3 February 1925, and it did not enter into force. Another example is the arrangement under Art. 83 of the UN Charter, formalised as the Trusteeship Agreement for the Trust Territory of the Pacific Islands, with the United States as trustee and the Security Council as the competent organ for a non-self-governing territory which was “designated … a strategic area”. The Security Council approved the draft agreement as presented by the United States (S/318). For a later case, West Irian, see infra n. 42. The Suez case, too, is set out below. Further examples may be found in economic matters in a setting of complex technical and financial arrangements, as was the role played by the IBRD.

32 UNCIO, doc. 933/IV 2/42(2); Kelsen, , The Law of the United Nations, 696.Google Scholar The matter mentioned in the foregoing note may have influenced this baroque way of regulation. Note also the semantic quibble which finds expression when agreement is defined as engagement (obviously in the sense of obligation), with the explanation that “the Committee has proposed the adoption of the term agreement in preference to the term engagement which may fall outside the strict meaning of the word agreement”. Although all this is an English text, there is little doubt that the draftsmen also had in mind the (divergent) French meaning of engagement. A good example of such engagements is the ratification of optional clauses. This ambiguity regarding unilateral engagements was also introduced into the UN Regulations to Give Effect to Art. 102 of the Charter (76, UN. TS. xxi ff., 1950). Art. 1 of the Regulations contains the perplexing provision that “every treaty or international agreement, whatever its form and descriptive name, entered into by one or more members of the United Nations shall be registered”, though, in the next paragraph, “not … until the treaty or international agreement has come into force between two or more of the parties thereto”: this “come into force” might be compatible with unilateral declarations which may “enter into force” with the very fact of their publication.

33 It may be noted that the definition does not include the concept “by which two or more States establish or seek to establish a relation under international law between themselves” which was a constitutive part of the definition in the Harvard Draft on the Law of Treaties (1935) 29 A.J.I.L. Spec. Suppl.

34 Art. 18 provides that “a State is obliged to refrain from acts which would defeat the object and purpose of a treaty when (a) it has signed the treaty … until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent … provided that such entry into force is not unduly delayed”, i.e., that sufficient ratifications be made within a reasonable time.

35 See supra n. 31. For a precedent, relating to Great Britain and France, 1873, see 65 British and Foreign Special Papers (B. and F.S.P.) 466.

36 It stands to reason that one might for the first contingency (but not for the second) hold, with Wolfke, that such declarations would “contribute to the formation of international customs”, each declaration “not by [itself] but solely as an element of acceptance of an already existing practice”; op. cit., 78 ff.

37 Ihlen, the Norwegian Minister for Foreign Affairs in 1919, orally gave his Government's consent to a Danish offer that Denmark would not object to Norway's claims to Spitzbergen, and Norway would “not make difficulties” in the matter of extension of Danish sovereignty over the whole of Greenland. Although it made the impression that there had been agreement on a do ut des basis, i.e. that a treaty had been made, if only orally, the transaction nevertheless relates in both cases to developments which had to run each its course, with the two parties playing but a partial role, so that the agreement was, in fact, merely a promise not to interfere in a negative sense with the said development. In other words, the substance of the case relates to the extent of expectations justified on grounds of good faith. This is what the P.C.I.J. confirmed: Ser. A/B, No. 53, 1933).

38 In a note of 29 May 1919 Germany made certain requests regarding German minorities abroad and gave at the same time a pledge that the Reich was “seinerseits entschlossen fremdstämmige Minderheiten auf seinem Gebiete nach den gleichen Grundsätzen zu behandeln”. It is, however, also true—as stated by Temperley, H. W. V., History of the Peace Treaty vol. v, p. 142Google Scholar—that the Peace Conference had assumed that after the cession of the heterogeneous provinces (to Poland, France, Denmark, and Belgium) “no local circumstances were of such a nature as to make it probable that safeguards of that kind were requisite”, a statement which did not foresee Nazi racism.

39 Assurances of this kind were given to Austria (21 May 1935), the Netherlands (30 January 1937, 28 April 1939, 26 August 1939, 6 October 1939), Czechoslovakia (11 March 1938), Belgium (30 January 1935, 13 October 1937, 28 April 1939, 26 August 1939, 6 October 1939). Cmd 6964, p. 38.

40 As late as 1946, when already standing under the shadow of the gallows, Goering had this to say: “What the devil do you mean, morality?—word of honour? Sure, you can talk about word of honour when you promise to deliver goods in business—but when it is the question of the interests of the nation!? Then morality stops! That is what England has done for centuries. America has done it, and Russia is still doing it!…When a State has a chance to improve its position because of the weakness of a neighbour, do you think it will stop at any squeamish consideration of keeping a promise? It is a state-man's duty to take advantage of such a situation for the good of his country”. Gilbert, G.M., Nuremberg Diary (Signet, ed.) 339.Google Scholar

41 (1966) I.L.C. Yearbook, vol. II, p. 187 ff.; Commentary to Art. 2.

42 Following upon supra n. 31, a more recent instance occurred in 1962 regarding West Irian. Here, agreement was reached between the Netherlands and Indonesia on 15 August 1962, and UNTEA was formed (the UN Temporary Executive Authority), somewhat analogous to the Trusteeship Council. For terms of reference see Off. Ree. of the Gen. Ass. XVIIth Session, Annexes (Agenda item No. 89, doc. A/5170, annex). Approval was given on 21 September 1962 in Gen. Ass. Res. 1752 (XVII); G.A.O.R. Suppl. No. 17 (A/5213), 70.

43 As for Germany, see supra n. 38.

44 Treaty relations with two States, Poland (28 June 1919) and Czechoslovakia (10 September 1919), had no earlier history, but three others relied on earlier obligations: Greece (10 August 1920), Rumania (9 December 1919) and Yugoslavia (by virtue of obligations burdening Serbia and Montenegro, 10 September 1919).

45 Relying on Verdross and Balladore-Palieri, Suy has categorised these Declarations as “promesses conventionnelles”, but quotes, as “seule exacte”—and we join him herein—the conclusion reached by Quadri: “Queste dichiarazioni vennero emesse in seguito a pressioni e proposte collective e non si presentano altrimenti che come accettazione di proposte”; (1956) Diritto internazionale pubblico 83.

46 Supra n. 31. The Harvard Draft on the Law of Treaties (1935) 29 A.J.I.L. Suppl. p. 691–2, envisaged the possibility that such pledges are treaties made with the League; but it refrained from further examination, the authors having decided to limit the Draft—as does the Vienna Convention of 1969—to agreements among States.

47 P.C.I.J., Senes A/B No. 64; Series C No. 76.

48 In 1966 the I.C.J. had to adjudicate on a Liberian-Ethiopian joint claim against South Africa on how the latter's mandate over South-West Africa (Namibia) had to be interpreted. In a most controversial judgment, the Court set out to examine the synallagmatic relations between co-contractants and concluded that there was no claimant-defendant confrontation of treaty-stipulated obligations. The judgment shows the inaptness of the treaty form for matters of human rights.

49 I.G.P., at 97 ff.

50 Indeed, according to E/CN.4/367, p. 29, “this system appeared to have a particular connection with the guarantees of the League of Nations”, the authors of this “Study” believing that the relationship between the League and the minority régime was such that the latter could have survived only on condition of being reconfirmed by the United Nations.

51 Ibid., at 62: “the change of circumstances has been profound and general”, so that the régime of 1919 “is no longer in force”.

52 Ibid., at 64: “there has been a far-reaching change of circumstances”—so that the régime of 1919 “is no longer applicable”.

53 Ibid. at 65: “there has been a considerable change of circumstances”—so that the régime of 1919 “is no longer applicable”.

55 A non-accepted solution, of 21 September 1956 has already been mentioned supra n. 30. Significantly, the guiding ideas had been given declaration form.

56 S/3679. The most important parties, individually concerned as leading maritime Powers, were represented on the Council, either as permanent or as pro tempore members; they debated matters with an Egyptian representative (then not on the Council), with S/3679 as a verbatim rendering on the. text agreed by them, Egypt included.

57 There is a lapidary formulation in Professorbook, Baxter's (The Law of International Waterways (Harv. U.P., 1964) 334)Google Scholar which appears to be the doctrinal expression of this policy: “An interoceanic canal … when it has been dedicated by treaty, unilateral declaration or otherwise to use … and there has been substantial reliance on the dedication by the shipping of such nations”. Note, however, what Professor J. Dehaussy has to say on this subject: “La déclaration égyptienne de 1957 sur le Canal de Suez” (1960) Annuaire Francais de Droit international 177f. “Selon la these égyptienne, la déclaration est l'expression de la souveraineté de l'Egypte sur le canal, partie intégrante de son territoire. Celie souveraineté, il n'est dans la pratique sinon dans la doctrine personne pour la nier: il suffit de rappeler le deuxième des Six Principes posés le 13 octobre 1956 par le Conseil de Sécurité, à l'unanimité: “la souveraineté de l'Egypte sera respectée”. Mais il n'est, non plus, personne pour affirmer que cette souveraineté soit aujourd'hui aussi entière qu'elle Vitait lorsqu'en décembre 1873 la Sublime Porte, par un véritable acte d'auto-limitation, édictait … la déclaration qui apparaît comme l'Ancêtre directe de la déclaration de 1957 … La souveraineté égyptienne ne peut plus jouer que dans les limites posées par la convention de Constantinople et par la résolution du Conseil de Sécurité de 1956”.

58 Para. 9(b) of the Declaration of 24 April 1957 states that “Differences arising between the parties to the said Convention in respect of the interpretation or the applicability of its provisions, if not otherwise resolved, will be referred to the International Court of Justice”. The limitation is reaffirmed in the second Declaration, here directly related to Art. 36(2) of the Court's Statute, but only by implication (“…and for the purposes of paragraph 9(b)…”), i.e., it makes otherwise the impression of being general (“on condition of reciprocity and without special agreement) and complementary to other acceptances of the compulsory jurisdiction, however general. In fact, Egypt accepted the Court's jurisdiction, except its Kompetenz-Kompetenz. But see Rosenne, op. cit., supra n. 26 at 371.

59 The same point is made in the Egyptian covering letter to the UN Secretary-General, requesting registration. The request was complied with and the Declaration is published in 265, UN. TS. 299 ff. The arguments which Dag Hammarskjold advanced in order to justify such compliance are, according to Dehaussy, “loin d'être convaincants”, op. cit. supra n. 57 at 172.

60 Note to Correspondents, No. 1590. Rousseau, , Droit international approfondi (1958)Google Scholar, No. 234, and Dehaussy, op. cit. at 180, share this view; the latter adds: “Nombreux sont les gouvernements qui en ont tiré argument pour proclamer inacceptable tout règlement unilatéral du problème de Suez”.

61 This is the conclusion of O'Gonnell after analysis of the Ihlen Declaration (International Law, 220) and of Suy generally: “Lee seuls effets que ces déclarations produisent sont ceux d'empêcher le déclarant de prendre ultérieurement une autre position: elles ont l'effet de l'estoppel, mais les effets s'arrêtent là”: op. cit. at 141.

62 The present writer believes that the soundness of these conclusions would be confirmed were the problem reexamined under the assumption of proper treaty relations and a possible attempt by one of the parties to resort to a rebus sic stantibus reservation. Attempts were made by the draftsmen of the Vienna Convention of the Law of Treaties to subject the use of the clause to strict rules of operation, but the question remains whether this would reflect on the “validity” of unilateral Declarations or indeed any informal international assurance. The League of Nations, then at the apogee of its authority, took no steps whatsoever after the Greek Parliament disavowed the arrangement (described supra n. 31), notwithstanding the clear statement that “the stipulations of the present scheme will come into force as from today. In witness thereof, the present Instrument has been signed…”.

63 Witness the fact that even the indemnification problem of shareholders of the Suez Canal Company, mainly French and British (largely the Treasury) was satisfactorily settled.

64 3 B. and F.S.P. 1815/6 (London 1838) 971 ff.

65 Specifically, the Declaration of Paris, 1856, relating to war on sea; the Declaration of St. Petersburg, 1868, on the prohibition of certain weapons; the Hague Declaration Concerning Expanding Bullets, 1899. Note several non-ratified Declarations on the Law of War—Brussels 1874, and London 1909, as well as the two Hague Declarations, one Forbidding the Launching of Projectiles and Explosives from Balloons, 1899, redrafted 1907, and the other on Asphyxiating Gases. (Subsequent instruments on this subject were treaties proper: the Submarine and Poison Gas Convention of Washington, 1922, and the Geneva Gas Protocol of 1925; (65, LN. TS.).

66 They “recognize that it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a Treaty, nor modify the stipulations thereof, unless with the consent of the Contracting Powers by means of an amicable arrangement”. (Hertslet, III, 1904, reprinted in Briggs, The Law of Nations (1952) 912).

67 Cmd 1994 (Treaty Series No. 29–1923), H.M.S.O.

68 182, LN. TS. 265.

69 L.O.N. Off Journ., 9th year, Jan. 1928, p. 177. It appears, however, also that this ‘declaration’ is in substance a quasi-judicial pronouncement, rather than a general normative statement. This is probably the reason why this ‘declaration’ is rarely quoted among declarations and never as what it in substance is, i.e., an authoritative decision in a controversy confronting two members of the organisation, the law of substance being the basic constitution of the League.

70 Thus, as a matter which is certainly not of a minor importance—not legally and not politically—the causa debendi of the German-Israeli reparations agreement of 10 September 1952 is set out in the Preamble.

71 Here, diplomatic convenience had to meet apprehensions by Belgium, at that time the main neutral Power of West Europe. F. Münch: “Die drei Absätze der Präambel haben in diesem Falle eine rechtliche Bedeutung und besagen dass die HLKO nicht als vollständige Regelung dos Landkriegsrechts angeschen werden darf. Mit anderen Worten besteht in den Lücken der Ordnung keine Handlungsfreiheit, es wird vielmehr der Kriegführende an die Grundsätze des ungeschriebenen Völkerrechts gebunden” (“Die Martens'sche Klausel und die Grundlagen des Völkerrechts”, in (1976) Zeitschr. f. ausl. offentl. Recht u. Völkerrecht 348)

72 Nevertheless no great effort appears to have been made to ascertain why the negotiators at San Francisco were so insistent on using a term soon to be repudiated by an expert of Kelsen's stature as “strange and misleading” (op. cit. 552). Kelsen holds that the words “recognize the principle” have no other meaning than “agree” (Arts. 25, 74) or “undertake” (Arts. 43, 94) or “pledge themselves” (Art. 56). It appears, however, that at UNCIO several delegations were under the impression that a distinction was implied, Ch. XI being a “unilateral Declaration” on the part of the colonial States, distinct from Ch. XII which is a contractual undertaking. Proposed by the then Labour Governments of Australia and Great Britain, the Declaration was referred to as an “international charter of colonial administration”: Russell, R.B., A History of the UN Charter (1958) 813 ff.Google Scholar; see also the views of France: 63 Journal of the UN, Suppl. A–A/PV. 64, 703.

73 UN doc. E/CN.4/L.610 of 2 April 1962. For an analysis see I.G.P. 177 ff. As every rule has its exception, so this one too: the UN Seminar on Apartheid, Racial Discrimination and Colonialism felt itself authoritative enough to wind up its meetings in July–August 1963 by adopting 23 recommendations and one solemn Declaration…(UN Press Release GA/AP/113).

74 In thesi, therefore, the exchange of views on their formulation would differ from negotiation: their object was not agreement on any sort of synallagmatic provision, but on how to formulate a consensus on a legal rule of guidance. It would be unworldly to the extreme were one to forget that here, too, State interests required similar safeguards as when a treaty proper was to be negotiated. On the other hand, there was no movement of importance to show that the very recourse to the Declaration practice was contrary to State interests.

75 René Cassin, one of the Declaration's prominent draftsmen, stated that it “could be considered as an authoritative interpretation of the Charter”: A/C.3/SR–92, 12. The representative of China in the Third Committee expressed the same idea: “The Charter committed all nations to the observance of human rights: the Declaration states these rights explicitly”: A/C.3/SR–91, p. 4. The Australian delegate, Evatt, H. V. wrote on it in The Task of the Nations (1949) 114.Google Scholar

76 Statement by the Soviet delegate, V. Potemkin. However, soon thereafter the International Law Commission, at its first Session, 1949, adopted in its Draft Declaration on Rights and Duties of States, a provision (Art. 6) that: “Every State has the duty to treat all persons under its jurisdiction with respect for human rights and fundamental freedoms, without distinction as to race, sex, language, or religion”: text in (1949) I.L.C. Yearbook. The Yearbook does not appear in Russian.

77 See I.G.P. 244–250, dealing with the addressees of the Law: the Agent of Protection (the Autonomous Agent of Protection, the Governmental Prerogatives of Protection, the Tribunicial Agency, the Tribunicial Non-governmental Organization).

78 Ibid., at 122, 164, 173, 178, 322, for the so-called “tandem” arrangements. This line of policy may have been influenced by the ‘success’ in dissociating the treaty law on genocide (i.e., the Convention of 1948) from the ‘Declaration’ (though not so formally termed, but nevertheless so indicated in the Preamble to the Convention) as formulated in the Gen. Ass. Res. 96(1) of 11 December 1946. Indeed, the Convention deleted “political groups” as well as “cultural” genocide. It would be worthwhile to examine whether the ‘revision’ of normative postulates, as materialised in the negotiation of a convention, has the power to destroy general legal postulates, even if of Natural Law status only.

79 Lerner, N., “The Golan Heights Case and the UN Committee on Racial Discri mination” (1973) Israel Yearbook on Human Rights 118 ff.Google Scholar; for background see the same writer's The UN Convention on the Elimination of all Forme of Racial Discrimination (Leyden, 1970).

To meet a possible misapprehension as if the UN alone (or its Specialised Agencies) was speaking through Declarations, attention is drawn to a recent Declaration on International Investment and Multilateral Enterprises, adopted by the Organization for Economic Cooperation and Development, Paris; Press Release A(76) 20 of 21 June 1976. This Declaration differs from the other Declarations, here considered, by being not limited to the enunciation of a set of rules, but elaborating on it by adding provisions for its administrative implementation (Decision of the OECD Council on Consultation, Guidelines for Multinational Enterprises, on National Treatment, etc.): text reprinted in (1976) 15 I.L.M. 967 ff.

80 Sir Gerald Fitzmaurice, when General Rapporteur to the ILC on the Law of Treaties, brought this problem up for discussion. He pleaded for the drawing up of a Code on treaty law, and not of a treaty, on the grounds that this normative order required “an independent basis” (obviously independent of the opportunism of “opting”) and that much of the law of treaties “consists of enunciation of principles and abstract rules”: “The law of treaties is not itself dependent on treaty, but is part of general customary international law”; op. cit. 91.

81 Malevolent observers may discover a link between this development and the oft declared view of recently decolonised States that they had to reserve their position vis-à-vis the now valid Positive Law (although it is under that law that they have obtained independence), which had not only been developed without them but by those who had a clear interest to manipulate law and legislation, in a sense, unfriendly to them. As the Third World impact became more pronounced, group confrontation threatened to make the treaty form almost entirely impracticable, and the Declaration form even more attractive, though at the high cost of legal incertitude. There is a noticeable shift to economic matters and Marxist inspiration.

82 See the present writer's “Proposed Simplifications of Convention-Making Procedures” (1972) 7 Is. L.R. 514.

83 Weis, P., “The UN Declaration on Territorial Asylum” (1969) The Canadian Yearbook of Int. Law 92 ff.Google Scholar

84 The present writer made this point when explaining his views to the ILA Committee on the Legal Aspects of the Problem of Asylum. Here is the relevant part of Professor Green's Report: “Dr. Lador-Lederer has expressed the view that only diplomatic asylum is really suitable for treaty regulation as an intergovernmental issue. He considers that territorial asylum is more concerned with the relations of the individual and the State and is ‘at a loss to understand the contractual character of such a Convention: who would be obligated vis-à-vis whom? The parties in whom contractual rights ex conventiones are vested are not identical with the beneficiary; their rights to intervene on behalf of some beneficiaries (unknown at the time of contracting) is of a very relative nature … If a contracting party formalizes, in the form of an international convention, something which it may do without such formalization, the purpose is generally (as in the European Human Rights Convention) to provide for an international remedy—but in such a case the object of treaty-making is the procedure of remedy’. Instead of a treaty, therefore, he would prefer something like the UN Declaration on Asylum to serve as a guideline for the assistance of such organizations as the International Committee of the Red Cross, Amnesty International … aided by, when feasible, intergovernmental organizations like the UN High Commissioner for Refugees”. However, Professor Green comments: “It is submitted that to confine the work of the ILA in this way would be to go directly against the manner in which the Committee has operated in the past—the trend in modern international life to codify rules of law whenever possible”: ILA Report of the 55th Conference (New York, 1972) 197–8.

85 In his Presidential Address, 1927, James Brown Scott pointed out that “the expression ‘general principles of law’ is only the English version of the phrase, equally precise but more elegant of our Latin friends, ‘la conscience juridique des nations civilisées’”: Institut de Droit International, Session of Lausanne, 33(3) Annuaire 54.

86 I.G.P. 158. When asked how to ascertain whether a given principle is one of law and not of a cognate normative order, such as religion or morality, Lord Phillimore replied that the recognition as a legal principle by civilised peoples supplied the necessary element of determination.

87 Rosenne, Sh., The Law and Practice of the International Court (1965) vol. II, p. 608Google Scholar, with references to opinions formulated by Judges Krylov and Koretsky.

88 Ibid. True, the term can be understood both in its positivist and naturalist filiation, and may have been meant in both, considering that it was born out of a feeling of shame with the behaviour of certain States during the decade 1909–1919.

89 Rather inconsistently, the Article as adopted omits the qualification “of the kind referred to in Art. 50” (eventually Art. 53) in the Draft. One may conclude that it had become accepted that the need for a new ius cogens arises not by way of a distillation from a previous satisfactory practice, because it is deemed good, but because experience is considered unsatisfactory.

90 See the present writer's International Non-governmental Organizations and Economic Entities (1963).

91 See the present writer's “The Lay Law of Religious Freedoms and the Canons of Response” (1976) 6 Israel Yearbook on Human Rights.

92 These will certainly include all those whom the Vienna Convention on the Law of Treaties (Art. 7) “in virtue of their functions” dispenses from having to produce full powers: “Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty”.