Complying with Specifying Clauses
Let us take stock. On the one hand the duty to comply with declarative clauses to the effect that ф is simply the duty to do ф and is justified as such; on the other hand, the duty to comply with a creative clause to the effect that ф is grounded in a Scanlonian account of promissory obligations. The case of what I have called specifying agreements, or clauses, is more complex than either declarative or creative agreements. Such agreements, you recall, render more specific rights and obligations which are themselves independently justified, when the precise ways in which those rights and obligations are made more specific are not themselves generated by independent principles (such as the ‘best qualified should do it’ principle.) The question, thus, is whether signatories’ duty to comply with the relevant provisions is simply a natural, independently justified obligation to do what justice requires (as per the duty to comply with declarative clauses), whether it has its source in the signatories’ voluntary undertaking and the mutual expectations thus raised (as per the duty to comply with creative clauses), or both. Consider the 1993 Oslo Accords. Following months of initially secret negotiations between the Israeli government and the PLO under the auspices of the Norwegian authorities, Prime Minister Rabin and PLO Chairman Yasser Arafat signed the Accords in September 1993, thereby undertaking to bring an end to the decades-long conflict between Israel and Palestine. Suppose, for the sake of argument, that Palestinians have a jointly held right to exercise territorial sovereignty over the Gaza Strip and the West Bank, and that the Israelis thus have an obligation to withdraw their troops from those areas and hand over all judicial, legislative, and administrative competences to the relevant Palestinian authorities. The Accords delineate a set of principles to which both parties commit themselves as they begin peace negotiations. In particular, they provide for the establishment of a so-called Palestinian Interim Self-Government Authority for a transitional period of five years, elections to which are to be held no later than nine months after the Accords come into force (article II-2). They also stipulate that negotiations for a permanent peace settlement should begin as soon as possible, and by the beginning of the third year of the interim period at the latest (article V.2). Ex hypothesi, Palestinians have an independently justified political right to take part in decisions which affect their community; they also each have independently justified rights and obligations to enter into negotiations for a long-lasting peace. However, the time frames for the implementation of those rights and obligations are not themselves independently justified: time frames rarely are, and are set with some unavoidable degree of arbitrariness. It thus makes sense to think of those two articles as specifying rather than declarative clauses. The duty to comply with them can be couched as, respectively, ‘a duty to ensure that free elections are held within nine months’ and ‘a duty to begin permanent peace negotiations within two years’. Each of those duties can in turn be decomposed into two duties, where the bracketed clause identifies the justificandum, as follows:
a. a duty [to ensure that free elections are held];
b. a duty to ensure that free elections are held [within nine months];
c. a duty [to begin permanent peace negotiations];
d. a duty to begin permanent peace negotiations [within two years].
The justification for duties (a) and (c) flows from a general duty, incumbent on all human beings wherever they reside, to do as justice requires, whereas the justification for duties (b) and (d) lies in the Scanlonian account of the obligation to comply with creative agreements. Prior to the Israelis and the Palestinians explicitly undertaking to do what justice requires within the indicated time frames, neither had a claim against the other that they should do exactly that. By making that undertaking voluntarily, the Israelis and Palestinians, via their leaders, raised amongst one another the expectation that they would do as stated. To the extent that they each benefited from having done so, they were in turn under a duty to each other to do their part. The point applies not just to those individuals on whose behalf the agreement is made at time t1: it also applies to their successors, on the basis of the same considerations as were adduced earlier in support of the view that generations who have not themselves signed a creative treaty are nevertheless under aprima facie obligation to abide by its terms unless they signal to the other party that they are no longer willing to be so bound.
We will return to the problem of diachronic obligations in chs. 5 and 6. For now, it is worth raising—briefly—the case of treaties which are made by two signatories or more affecting another party not itself a signatory, and which must be fulfilled decades later. For example, between 1842 and 1898, the United Kingdom and China (then governed by the Qing dynasty) signed a series of treaties under the terms of which China would grant the UK a ninety-nine-year-long lease (starting in 1898) over Hong Kong. Full sovereignty over Hong Kong was duly transferred back to China in 1997. The inhabitants of Hong Kong were not consulted in the nineteenth century; nor were their successors formally asked, in 1997, whether they wished to remain part of Britain, re-join China, or become independent. On orthodox interpretations of international law, Britain clearly was under an obligation, which it honoured, to cede the territory. On a human rights— based, individualist understanding of justice in international relations, those various treaties were the unjust product and legacy of a colonial mindset whereby great powers would dispose of territories and their inhabitants at will. To my mind, those treaties were not morally binding, and Britain was not under a moral obligation to China to comply as it did—but nor, equally, was it morally entitled to hold on to Hong Kong without consulting its inhabitants. To be sure, there might well have been very good all-things-considered moral reasons as to why Britain’s leaders were right not to antagonize China—as the islanders themselves might have argued, unwilling as they presumably were to be subject to a threat of military invasion. But that is not the same as to say that the source of Britain’s obligation lied in its having passed some treaties with China in the second half of the nineteenth century: that fact was neither here nor there.
To conclude, I have defended parties’ duty to comply with a justified peace agreement by appealing to the general obligation to do what justice requires as well as the general obligation not to take advantage, by noncomplying, with the other party’s willingness to do their own part based on the expectations one has voluntarily raised. As I noted at the outset of this section, however, defending the obligation to comply is not the same as establishing the conditions under which a peace agreement is justified, and therefore binding. To the latter task I now turn.