From soft law to hard law? States ‘acceding’ to a soft law instrument by means of a unilateral declaration

States must undertake a certain procedure to become legally bound by a treaty, that is by acceding or ratifying the treaty, meaning that a state becomes a participating state to the treaty.[1] [2] [3] The same is not expected or required in terms of soft law instruments. Soft law instruments comprise non-binding rules and states may, of their own free will and discretion, decide whether they want to follow the guidance and best practice often contained in these instruments.

Given this background, it is remarkable that states can ‘accede’ to two ofthe above- mentioned soft law instruments. The Montreux Document on Private Military Companies (see section 3.4) establishes a mechanism where states can ‘join’ the instrument and become a ‘participating State of the Montreux Document’—as it is described in the instrument and on the homepage about the instrument^4 States can become a ‘party to’ or ‘join’ the document by communicating their support for the document to the Federal Department of Foreign Affairs of Switzerland (FDFA). The FDFA maintains a webpage about the Montreux Document and updates the webpage upon receipt of supporting statements from states.85

A similar mechanism is established in the Lucens Guidelines for Protecting Schools and Universities during Armed Conflict (see section 3.9). By signing a so-called Safe Schools Declaration, states can endorse the Guidelines and commit to use the Guidelines and to meet on a regular basis to review the implementation of the guidelines (see section 3.9). Such unilateral statements on the support for and effective implementation of a soft law instrument—and possible international supervision in the form of regular meetings of states ‘parties’—are not known in relation to IHRL soft law instruments. In the UN General Assembly and the UN Human Rights Council, states can vote in favour of or against a soft law IHRL document, for example a UN resolution. However, this does not entail a commitment to support or, indeed, implement the soft law instrument at the domestic level.

Hence, this appears to be a novel way to seek the implementation of non-binding soft law instruments. We may question the international law implications of a state signing such a unilateral declaration and expressing its commitment to support and implement a non-binding soft law instrument. Can such a unilateral declaration potentially transform soft law standards into hard law obligations? The answer will depend on the wording of the concrete declaration, and it is outside the scope of this chapter to discuss this in further detail. However, it should be recalled that the ICJ, in the Nuclear Test case in 1974, found that France was bound under international law by public statements from its President and Foreign and Defence Ministers to cease nuclear testing in the South Pacific. Based on this ruling, the International Law Commission (ILC) has laid down a basic guiding principle: ‘Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations.^6

  • [1] See Art. 1(b) of the Vienna Convention on the Law of Treaties.
  • [2] Swiss Federal Department of Foreign Affairs, ‘Participating States of the Montreux Document’, .
  • [3] Swiss Federal Department of Foreign Affairs, ‘Participating States of the Montreux Document’, . 86 ILC, Guiding Principles Applicable to Unilateral Declarations of States Capable of CreatingLegal Obligations, with commentaries thereto (2006), UN Doc. A/61/10, Guiding Principle 1.
 
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