To What Extent May Hard Law Content Be Incorporated Into Soft Instruments?

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Article

Reference

To What Extent May Hard Law Content Be Incorporated Into Soft Instruments?

KOLB, Robert

KOLB, Robert. To What Extent May Hard Law Content Be Incorporated Into Soft Instruments?

Swiss Review of International and European Law, 2019, vol. 29, p. 335-344

Available at:

http://archive-ouverte.unige.ch/unige:135581

Disclaimer: layout of this document may differ from the published version.

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FROM THE EDITORS

To What Extent May Hard Law Content Be Incorporated Into Soft Instruments?

Robert Kolb*

Table of Contents I. ~estion Presented

II. Dissent on the Character of the Instrument

III. Obligation under International Law to put some Content only into Hard Law Instruments?

IV. Obligation under Municipal Law to put certain Content only into Hard Law Instruments?

V. State Practice VI. Conclusions

I.

~estion

Presented

A query may be posed, under international legal standards, regarding the permissible extent to which «hard law» content may be inserted into «soft law» instruments and its resulting legal effect. The problem to be discussed in this brief piece must immediately be distinguished from two other closely related scenarios.

First, the issue at stake is not mainly the unclear character of a legal instrument.

In our case, the parties, for various reasons, most likely to avoid the time-consuming and burdensome treaty-making process ( entailing parliamentary approvals and so on), or ^toensure some confidentiality, intend ^toconclude a soft law instrument rather than a hard law instrument. The point is then to what extent some obligations can be pressed into a soft law instrument even if they would ordinarily seem to require a treaty. Such a scenario might play out, for example, where one party wants to remain in the realm of soft law and the other party has no choice but to take it or leave it.

If

one party imposes its view, with attendant obligations, on a soft law instrument but the other party does not want to endorse this qualification (e.g. because of municipal law or practice constraints in putting certail). clauses in a soft law instrument), the instrument may all the same be concluded. The question must then be raised as to its proper legal character. Is it soft? Is it hard? Oris it a nullity because of the apparent

Professor of Public International Law, University of Geneva; Member of the Board ofEditors. The author wishes to thank Dr. Dave Sadoff for his linguistic editing.

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dissent on its legally or non-legally binding character? Oris the legal solution an alte- rius genus?

Second, the issue to be discussed here is not that the soft law instrument may contain a provision implicating pre-existing legal obligations, or so-called «declaratory clauses». This is a very frequent occurrence, as the UN Marrakesh Migration Pact of 2018 nicely illustrates¹• Such clauses do not create any legal obligation. The soft law instrument merely refers the parties to a series of obligations existing outside the instrument without modifying ^toany degree their content.

IL Dissent on the Character of the Instrument

In most situations, the parties concur on the nature of their agreement. This remains true even where this is not made explicit in the text. A famous example is the CSCE Final Act of Helsinki of 1975, which is not legally binding²^•Agreements suppose a meeting of the minds, i.e., convergent expressions of wilP. In the absence of such a mutual understanding, there is dissent. Such a dissent effectively invalidates the agreement. However, to have such a radical effect, the dissent must exclude any indi- cia of agreement, i.e. any sense of «mutuality and commitment» ⁴. If the dissent is only partial, the agreement can be concluded and is consequently enforceable with respect to those portions not affected by it.

Therefore, if the parties diverge over the legal nature of their agreement, but not on the content, the conclusion of the agreement can indeed be impeded; however, the agreement could also be concluded, notwithstanding the differences of opinion. As usual with respect to issues relating to the conclusion of agreements, the will of the parties is controlling⁵^•In practice, we can observe that there are a series of cases where the parties disagree on the legal or non-legal nature of an agreement before its conclu-

UN Global Compact for Safe, Orderly and Regular Migration (2018), see e.g. Objective 10, letter h), re-

!ating to «facilitatingvictims' access to justice, including redress and compensation, in accordance with international law»; or Objective 11, chapeau: «We further commit to implement border management policies that respect national sovereignty, the mie of law, obligations under international law, human rights of ail migrants, regardless of their migration status, and are non-discriminatory, gender-responsive and child-sensitive»; or Objective 11, letter a, « ... assistance and appropriate protection of migrants in situations of vulnerabi!ity at or near international borders, in compliance with international human rights law ... »;etc.

2 W. HEUSEL, «Weiches» Volkerrecht, Baden-Baden, 1991, p. 166ff. See also M. Woon/D. PURISCH,

«Helsinki Final Act (1975)», in: R. Wolfrum (ed), The Max Planck Encyclopedia of Public International Law, vol. IV, Oxford, 2012, p. 787ff, with many references.

3 Cf. L. OPPENHEIM (ed by. R. Y.Jennings/A. Watts),lnternationalLaw, 9'h edn., London, 1992, p.1202;

R. Ko LB, The Law ofTreaties, An Introduction, Northampton/Cheltenham, 2016, p. 16.

4 Cf. D. B. HOLLIS, «Defining Treaties», in: D. B. Hollis (ed), The Oxford Guide to Treaties, Oxford, 2012, p. 21.

5 Ibid., p. 33. See also, among many others, M. SHAW, International Law, 6'h edn., Cambridge, 2008, S. 906.

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To What Extent May Hard Law Content Be Incorporated lnto Safi: Instruments?

sion (but the agreement is all the same concluded) or after its conclusion (and chus a dispute may consequently arise)⁶• This problem of dissent on the character of the instrument arises most frequently in the context of bilateral agreements. What is the solution to our question? If the parties conclude the agreement notwithstanding a difference of opinion as to its legal nature, there is no doubt chat they wanted the agreement and its conten.t. The agreement exists (based on consent) but its legal nature remains uncertain (a fonction of dissent). Legal doctrine proposes chat in such cases the State refusing to gram legal force to the agreement sends to the other contracting State(s) a diplomatie note through which it acknowledges the entry into force of the agreement and manifests its understanding chat it is a non-binding act; the other State(s) can then adhere to chat view or remain passive; the agreement will in such cases be regarded as valid and as non-legally binding⁷• This result should ensue also if no diplomatie note is sent, by virtue of the applicable legal and logical principles.

Since an agreement can be legally binding only when both (or all) parties mani- fest a legal intent, the consequence is that the agreement here at stake can be only politically binding. This means chat the politically binding texts (soft law) are a sort of residual category with regard to the one oflegally binding texts. The State ·wishing the legally binding nature of the agreement but not obtaining it signais, through the conclusion of the agreement, chat it abandons its daim. If the first State insists on the legally binding nature and the other insists on its political nature, the agreement shall not be concluded; ifit is concluded all the same, it stands to reason that one party has yielded to the daim of the other. In international law, in such cases the lesser obligation prevails (i.e. the political agreement). This is crue since a legally binding text supposes rhandatorily a legal conviction on both sides. In view of the regular conclusion of the agreement, it cannot be treated as non-existent; but then it can be only a political agreement, i.e. a text of soft law. Consequently, it is the party not obtaining the legal nature of the text that has abandoned its preferred effect through the conclusion of that text.

III. Obligation under International Law to put some Content only into Hard Law Instruments?

It could seem reasonable to hold chat a series of clauses can be put only into legally binding agreements or texts, e.g. compromissory clauses imparting jurisdiction 'to a judicial body, obligations to paya certain amount of money, etc. It is true chat clauses worded in a certain way are compatible only with a hard law instrument. This is the

6 See the examples in A. AusT, «Alternatives to Treaty-Making», in: D. B. Hollis (ed), The Oxford Guide to Treaties, Oxford, 2012, p. 53.

7 Ibid.

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case when and to the extent that they stipulate hard law obligations. The parties are not allowed to put such legally binding clauses into a political agreement: that would be self-.contradictory. The presence of such clauses in an agreement turns it into a legally binding instrument; and if the parties insert a clause. whereby the instrument shall not be legally binding, we have then a contradiction which must be solved in giving precedence to one expression of will over the other (or by considering the text non-applicable). At the end of the day, under the heading of an interpretation in

fa-

vorem validitatis, the clauses must probably be interpreted in such a way as not to impose any legally binding commitment. But the issue in our case is another. The clauses can be formulated slightly differently (and have another content) than their equivalents in hard law instruments.

Thus, it is perfecdy possible to promise to pay a sum of money by merely political undertakings. Payments are not always reinforced by legal obligation, as the category of ex gratia transfers shows (or in municipal law payments under so-called «natural obligations»). Since a State can unilaterally pay graciously, it can also agree with some other State in soit instruments on the surrounding conditions of such payments.

More generally, I can promise to pay as a political commitment without, at the same time, granting any legal daim to performance. Consequently, the insertion of such a clause in a political agreement simply means that a State pledges itself politically to make some payments but that it assumes no legal obligation to do so.

If

the payment is not made, the other State has no legal cause of action, e.g. by lodging a daim with a tribunal. Seen in this perspective, the «obligation to pay» is not necessarily hard law but can also be soit law.

The same is true for judicial or arbitral compromissory clauses.

If

a clause refers to a tribunal for the settlement of disputes on the interpretation or application of the

«present» agreement, this may seem at first sight compatible only with the understanding that the text is legally binding. But this might not necessarily be so.

If

the tribunal is invested with the sole power to give advice to the parties (advisory opin- ions) and/ or to consider the daims not under the lens of strict law but equity, such a clause could even fit a political agreement. For it is undisputed that in the latter there are not only vague declarations of intent but fully-fledged normative obligations spelling out concrete conduct expected. It may therefore make sense to have a corresponding mechanism of soit dispute settlement. Further, a compromissory clause could also be worded in a way to invite the parties to conclude a later special agreement through which they accept some competence of an international tribunal on legal issues raised in the dispute (non-bindingpactum de contrahendo). A clause worded in this way is, again, not incompatible with a soit law agreement. As can be seen through these.two examples, the realm oflaw and of policy commitments is not separated bywatertight membranes. Much depends on the formulation and true content of the clauses at stake.

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To What Extent May Hard Law Content Be Incorporated Into Sofi: Instruments?

There is no rule in public international law according to which certain contents or subject matters can be put only into politically, or conversely, legally binding agree- ments8. Backed by their sovereignty and private autonomy, States can agree on which- ever they want and as they see fit⁹. Consequently, typically political contents can be cast into a treaty and transformed into legal issues (see many parts of the UN Char- ter), and typically legal contents can be poured into a political agreement and not reinforced with a legally binding nature (see, e.g., the Helsinki Conference Final Act of 1975). In case of doubt as to the legal nature of the instrument, the words used are considered in order to determine if some legally binding nature has to be implied: e.g.

the use of the word «shall» or «legal obligation», the presence of some type of clauses such as judicial settlement oflegal disputes, the duty of registration under Articlé 102 of the UN Charter, etc.¹⁰By the same token, as already suggested above, conveniently formulated clauses which are typically legal can be adapted to the point where their content becomes compatible with a political agreement. In most cases, the issue is then simply one of interpretation: if a «legal» clause is inserted into a political agreement which the parties want to remain such, ·it must be interpreted in a way which makes it compatible with its nature. Either the parties have selected a careful wording or the interpreter must jump onto the scene to perform the task the legislator has not executed fully satisfactorily. International law - especially in the law on the sources, i.e. the creation of the law - is a flexible legal order. It is not there to constrairi the States in their search for common rules but rather to facilitate this form of international cooperation. ·

IV. Obligation under Municipal Law to put certain Content only into Hard Law Instruments?

From these very flexible rules of international law we must distinguish the law or practice of a particular State. It is manifestly possible that a State chooses to enact legislation or indulges in a practice that is more restrictive and considers that certain content cannot be channeled through a political agreement. This may favor a better and clearer distinction between the law and the non-law, thereby avoiding to exces- sively blur the lines. However, that also means that this State limits its policy options

8 Thus, it is ofi:en stated that political agreements can accommodate any type of content: cf. A. AusT, Modern Treaty Law and Practice, 3"¹ed., Cambridge, 2013, p. 32.

9 With the exception of issues falling under jus cogens norms, Article 53 of the VCLT of 1969: cf.

H. THIRLWAY, The Sources of International Law, Oxford, 2014, p. 35.

10 AusT (footnote 8), p. 32ff. Cleary, it is also possible to conclude two agreements, one political, another legally binding, and to insert the clauses according to their content in the one or in the other. But to do so there must be a willingness of the parties, and ifone party refuses to engage into legally bindingcommitments'such an option may simply not be available. It is also possible to insert sofi: law clauses in a treaty: cf. D. B. HoL- LIS, «DefiningTreaties», in: D. B. Hollis (ed), The Oxford Guide to Treaties, Oxford, 2012, p. 34.

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with regard to foreign States. Ir can occur that some other States refuse to conclude a treaty; a participation of the State having a restrictive municipal practice may then become impossible; this may have policy drawbacks. It has to be clearly stated that such limitations to the «instrument making-power» are not imposed by international law; they are self-limitations imposed by the State concerned.

Thus, in Switzerland, notwithstanding the absence of any legal constraint contained in a piece of legislation, the practice of the Foreign Ministry and its Interna- tional Law Directorate goes since some years the way of a restrictive path. In its Guide de la pratique en matiere de traités internationaux (2015), the Directorate states that:

«Un certain nombre de clauses et de notions doivent ainsi être réservées aux traités et leur usage, pouvant traduire une intention des parties de se lier juridiquement, doit être évité lors de la rédaction d'un instrument qui ne contient pas d'obligations jurid- iques»

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20); and: «N'ont en outre généralement pas leur place dans des instruments non contraignants des éléments qui par leur nature ne s'y prêtent guère, comme l'engagement de garder confidentielles des informations, la détermination de plans financiers détaillés ou de procédures trop précises. De même, des dispositions de règlement des différends, d'entrée en vigueur, de durée et de dénonciation sont réservées aux traités»

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21). The issue is rnanifestly one of «Best Practices» and terms such as «generally» used in § 21 indicate a certain amount of flexibility. However, there is sorne doubt as to the best way to understand this policy in the conclusion of international agreements. That certain clauses are normally inserted in treaties and not in political agreements is one thing; that they may not be inserted in political agreements is another. As we have seen, the issue is one of formulation and interpretation, not of subject matter or content. Furtherrnore, the examples given are sorne- what perplexing. One of the reasons to conclude soft law instruments is to remain confidential (e.g. in military matters or when commercial issues are at stake). If a clause of confidentiality is inserted, one does not see why this should nullify the intent to conclude a political agreement. This is all the more true when considering that some promise to remain confidential is perfectly possible as a political pledge. Fur- thermore, financial arrangements must not be clothed with legal force. Many international payments are made for other than legal reasons and are perfectly compatible with political instruments. Procedures for seulement of disputes may also be quite detailed. In this context, you may have a legal obligation to consult or negotiate, and you may have a political obligation to do so, as the ICJ decided recently in the

Obli-

gation to Negotiate an Access to the Pacifie Ocean case (2018)¹¹^•The latter is perfectly fitting a political agreement, and the degree of precision of the consultative procedure is not material. Finally, issues of entry into force, temporal scope of application and withdrawal are not the exclusive province of treaties. These questions arise also with regard to political agreements that contain normative cornmitments. Sorne soft law

11 At§ 84ff.

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instruments even have a depositary¹²^,as is usual for treaties¹³^;and yet they remain undoubtedly sofr law instruments. Overall, it may be said that caution has to be exer- cised with regard to such self.limitations, departing from the flexible standards under international law. A State may forfeit without compelling reason some capacity of action with regard to international action in many burgeoning and shifi:ing areas.

V. State Practice

Swiss practice (not following the strict criteria presented above) may illustrate the point of seemingly «hard» clauses inserted into sofr instruments. In a Technical Arrangement (TA) between Switzerland and the N etherlands relating to the Embed- ding of Swiss Officers in the Dutch Detachment in Support of MINUSMA (Mali) dated 7th of May 2015, a series of regulations were adopted. The Agreement is an understanding, i.e. a sofr law instrument¹⁴^•The rules contained in the instrument con- cern such issues as command relationship and discipline (article 3)¹⁵, carriage of arms by Swiss personnel (article 4)¹⁶^,support and force protection (article 5)¹⁷^, financial provisions (article 6)¹⁸, dress code (article 7)¹⁹, status and daims (article 8)²⁰, settle-

12 The Finnish Government is nominated as depositary, see § 1 of the Final Clauses. Sorne specific duties of the depositary are explicitly mentioned in § 1, 3 and 4 of the Final Clauses, e.g. the dut y to transmit to all partic- ipatirig States a true copy of the Act, or the duty to transmit the Act to the Secretary General of the UN.

13 This is the case of the Helsinki Final Act of 1975, for example.

14 See its Preamble.

15 E.g., § 3: «During the mission, Swiss personnel will comply with the instructions of the Contingent Commander of the Receiving Participant as long as they are in accordance with national legal or policy restrictions. In case of doubt Swiss personnel will inform and consult the ... as soon as possible»; or§ 5:

« ... will report any disciplinary offences committed by Swiss personnel to the ... in Mali ... ».

16 «Swiss personnel erribedded in the NLD Det in support of MINUSMA is unarmed».

17 E .g. § 1: «The Receiving Participant will render all operational assistance necessary to Swiss personnel»;

§ 3: «Swiss personnel will receive the same safety and security assistance and force protection under the same conditions as the personnel of the Receiving Participant»; § 6: «Swiss personnel will only in ex- tremis be driving Dutch vehicles».

18 § 1: «The sending Participant remains responsible to meet the costs of basic pay and allowances for Swiss personnel...»;§ 2: «The Receiving Participant will pre-finance for Swiss personnel NBC for logistic support services provided by MINUSMA ... ».

19 § 1: «When on duty, Swiss personnel is to wear their national uniform»; § 2: «Rules and regulations of the Receiving Participant will be observed with respect to wearing civilian clothes».

20 E.g. § 2: «Within the area of operations, daims arising between the participants out of. or in connection with, the operation of this Technical Agreement will be handled in accordance with Article I of the PfP SOFA in connection with Article VIII of the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces of 19 June 1951».

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ment of disputes (article 9)²¹and final clauses (article 10)²²^•Throughout the agreement the mandatory term «shall» is avoided and the less obligatory word «will» is used. In the same vein, one notes that the word «parties» is replaced by the less legal- istic word «participants». Care has manifesdy been taken not to enter into the sa- cred vocabulary of treaty law. However, when reading the clauses of this Agreement, some of which are reproduced for illustration purposes in the footnotes, the difference to clauses contained in a treaty are illusory. To some extent, one should even expect that such clauses be incorporated in a legally binding instrument. But the parties did not want to act along these more orthodox lines in the present case. The conclusion of legally binding agreements is burdensome and the procedure signifi- cantly longer; national organs must be consulted for treaty-making but must not be dragged in the process in the case of mere soit law instruments; a modification of the agreement, in case of need, is more difficult to achieve when it is based on hard law, etc. We may also note the careful framing and adaptation of some provisions so as to make them compatible with a soit law approach. This is the case, for example, of the settlement of disputes clause: it contains only an invitation ( «will be setded») to have recourse to low-level negotiations or consultations. Such political means of dispute settlement are manifesdy compatible with soit law instruments. There is no legal obligation here in a double sense: first, the recourse to negotiations and consultations is deprived of a legally binding force; second, the result of negotiations or consultations is not legally binding. lt can become so only if the parties embody it in a later binding agreement. Overall, the present Agreement shows some signs of mixed gender: it is a soit law instrument with some typically «hard law» content, which however is here cralted, adapted and interpreted into a soit law complexion.because the parties did not want to clothe them in treaty form. In short, the text is a hybrid - yet its (non-)legal status is entirely clear.

Another agreement of the same type is the equivalent Technical Agreement between Switzerland and Germany concluded on the 22nd of October 2018 (in German language). In Article 12, § 1, of this TA there is an explicit clause providing that the Agreement does not create international legal rights or obligations for the participants ( «Seiten» in German, the word «parties» is again avoided). The wording of the Agreement is carefully cralted also in the other provisions. Thus, it is written that the participants «expect ... » some conduct (article 3, chapeau, article 4, chapeau); the word «shall>> does not appear. The various provisions deal with the abject and pur- pose of the Agreement (article 2), the general principles (article 3), the competencies

21 «Any dispute between the Participants arising out of the interpretation, application or implementation of this TA will be settled through consultation or negotiations between the Participants at the lowest level possible».

22 § 1 ddines the date of entry into effect of the TA; § 2 concerns the amendment of the TA; § 3 deals with the termination of the TA; § 4 extends the application of the TA beyond the date of termination; and§ S designates English as the language of the TA.

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(article 4), the training of the forces (article 5), the logistics (article 6), the sanitary issues (article 7), the financial regulations (article 8), the responsibility and daims (article 9)²³, the exchange of medical data (article 10), the press and public working (article 11) and miscellany (including final clauses, article 12). Overall, this Agree- ment reproduces the same scherne of action as the TA between Switzerland and the N etherlands.

In the case of instruments under the NATO umbrella, some are based on soft law models and the Organization and its member States are not willing to transfer their content into legally binding agreements. Thus, there is a Memorandum of Under- standing (soft law) regarding the Air Situation Data Exchange between Switzerland and Germany of27ch ofNovember 2018. lt is expressly written into that instrument that it does not intend to confüct with existing national or international law and that in case of conBict the legal regulations will prevail (article 2.2). Again, there are schemes for action in that instrument (the word «Will» is used), financial provisions (article 6) and final clauses (articles 8 and 9). All that could be couched in a treaty - . but it has not been in the present case.

Other Swiss agreements on military cooperation are more classically concluded in treaty form. This is the case, for example, of the Agreement between Switzerland and Denmark on Bilateral Cooperation in the Field of Military Training concluded on 9rh ofJune 2017²⁴• The Agreement is somewhat more detailed, but contains also many clauses on the same subject matters as those included in the other two soft law instruments. Thus, the seulement of disputes clause is formulated in a similar way, including the low-level settlement, and expressly excluding any recourse to tribunals (article 19). The same can be said of the Agreement between Switzerland and the United Kingdom (and Northern Ireland) concerning the Conduct of Military Exercises or Training and the Provision of Host Nation Support, concluded on the 2°d ofNovem- ber 200425 •

VI. Conclusions

This short review of Swiss practice in a subject area where a certain amount of Bexi- bility is needed shows that States have recourse to one or anoi:her type of instrument, hard or soft, according to contextual factors, opportunities, wishes of the partners, and so on. This Swis practice is representative of many other States. The conclusion to be drawn is to confirm the Bexibility on «instrument-making» under public inter-

23 This clause makes reference to existing legal mechanisms and is chus essentially declaratory in character (§ 1) while in§ 2 the parties renounce to make daims for some types of damages. This renunciation must be read again as a policy commitment of abstention.

24 SR0.512.131.41.

25 SR0.512.136.71.

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national law. Hard law content can easily

be

integrated in some form into a soft law instrument if parties so wish. The clauses will then have to be carefully worded (avoiding some typically treaty-law formulations) and interpreted according to the common intention of the participating States regarding their non-legal nature. The review of practice has also shown that there are hardly types of rules that cannot conceivably find some place in a soft law instrument. Law and policies are never neatly separated when viewed from the subject matter perspective; the former represents a subset of the latter. Hence, soft law instruments can consist oflegal positions (declaratory fonction) or recommend action with regard to legal positions (e.g. renouncing legal daims); they can frame soft peaceful settlement of dispute clauses referring to . non-binding means and results; they can provide financial compensation as a political rather than a legal commitment, granting no legal daim in case of non-payment (although retorsions by the other side would then be possible); and so on.

Consequently, the answer to the question presented in the title of this short con- tribution is a qualified «yes». Hard law content will, however, have to be diluted into non-binding clauses in order to fit into the non-binding instrument that bears them, Thus, «hard law» content in soft law instruments are impossible as long as they remain binding law; but otherwise «hard law» content adapted to the soft instrument and interpreted as non-binding can and do penetrate into soft law instruments. Is that really surprising? After all, the constructions of the lawyer cannot cast away the wishes of the legislator. If there is a real need for such hard-soft practices they will have their way. There is no reason why legal doctrine should not become aware of it and theorize this peculiar (and to some extent new) category of «half-soft law». Fi- nally, in view of the state of international law and the needs of international life, there is also no reason for a State to impose too sharp self-limitations in this context and thereby to uselessly curtail its capacity for international action.